Amari Broughton-Fleming suffered a brachial plexus injury during birth. The brachial plexus is a bundle of nerves that travel from the neck through the shoulder and branch into the arm. Brachial plexus injuries are sometimes caused during childbirth when a baby’s neck is stretched while pulling the baby through the birth canal.
Amari’s mother sued Dr. Peter Wong in a Delaware state court, alleging that he was negligent when he delivered her baby and that his negligence caused Amari’s brachial plexus injury. Amari’s mother relied on an expert witness to establish the appropriate standard of care and Dr. Wong’s breach of that standard. She relied on a second expert to establish that Dr. Wong’s negligence harmed Amari.
Dr. Wong moved to exclude the testimony of both experts, contending that the testimony failed to satisfy the Daubert standard and that it allowed the jury to presume negligence from the fact of the injury alone. The trial court rejected that motion. The case went to trial and a jury returned a verdict of $3 million in favor of Amari’s mother.
Dr. Wong appealed, challenging the admission of the experts’ testimony. The Delaware Supreme Court affirmed the verdict.
Facts of the Case
During birth, Amari’s head was lodged beneath his mother’s pubic bone, a condition known as shoulder dystocia. Amari’s mother contended that Dr. Wong used too much lateral traction to free the head during delivery, causing a permanent injury of the brachial plexus on Amari’s right side.
Dr. Wong denied that he used any lateral traction at all. He claimed that the injury was caused by the mother pushing the baby during delivery.
Amari’s family members who were present during the delivery testified that they saw Dr. Wong pulling on the baby’s head. Dr. Wong and medical staff who assisted in the delivery denied that Dr. Wong pulled on the baby’s head.
There was no dispute that Amari suffers from a permanent brachial plexus injury. Amari had two corrective surgeries, but his right arm is shorter than his left arm, impairing his ability to play sports and ride a bicycle, among other activities.
Standard of Care Testimony
Dr. Marc Engelbert testified as to Dr. Wong’s breach of the standard of care. Dr. Engelbert testified that applying excessive lateral traction breaches the standard of care for responding to the complication of shoulder dystocia. Dr. Engelbert reasoned that using excessive force during delivery was the only reasonable explanation for the brachial plexus injury.
Dr. Engelbert based his opinion on his thirty years of experience as an obstetrician and gynecologist. The supreme court noted that medical experts are entitled to rely on their own experience when forming expert opinions. Dr. Engelbert also testified that he relied on multiple medical sources to support his conclusion that only excessive force will cause a permanent brachial plexus injury.
Dr. Wong countered with a monograph published by the American Congress of Obstetricians and Gynecologists (ACOG) to support his view that a mother who pushes during labor can cause a brachial plexus injury when shoulder dystocia complicates the delivery. Dr. Engelbert rejected that alternative explanation for the injury because the monograph did not adequately explore the difference between a temporary injury, which might be caused by labor alone, and a permanent injury, which can only be caused by the use of force when delivering the baby.
The supreme court rejected the claim that Dr. Wong was asking the jury to presume negligence from the fact of the injury (a principle known as res ipsa loquitur that juries may rely upon only under limited circumstances). The court noted that Dr. Wong ruled out the only other potential cause of the injury and that Dr. Wong’s denial of using any force was contradicted by witnesses to the birth. Ruling out other potential causes for an injury not transform an expert’s opinion into an impermissible theory of res ipsa loquitur liability.
Since there was evidentiary support for Dr. Engelbert’s opinion that Dr. Wong used excessive force, including Dr. Engelbert’s own experience as confirmed by other medical sources, Dr. Engelbert’s opinion satisfied the Daubert standard. The opinion was based on sufficient facts and reasoning to allow a jury to regard it as reliable. Deciding whether to accept or reject the testimony was therefore the function of the jury, not the court.
Causation and Harm Expert
Dr. Scott Hal Kozin performed two surgeries in an unsuccessful attempt to correct the brachial plexus injury that impaired Amari’s ability to move his arm. He testified about the harm that Amari suffered and will continue to suffer because of the injury. Dr. Kozin also testified about the cause of the injury.
Dr. Kozin testified that Amari’s torn nerves were caused by the application of excessive lateral traction during birth. He based that opinion on twenty years of experience performing surgeries to correct birth injuries involving damaged nerves.
The supreme court rejected Dr. Wong’s argument that Dr. Kozin’s testimony was based on insufficient facts. Dr. Kozin observed two torn nerves during the surgery that would never regenerate or recover. In Dr. Kozin’s experience, the damage he saw could only be caused by the use of excessive lateral traction during birth. The court concluded that Dr. Kozin’s opinion was grounded in an adequate factual basis, consisting of his own observations and his medical experience with similar injuries.
Dr. Wong complained that Dr. Kozin did not address the ACOG monograph that arguably conflicted with his opinion as to causation. The supreme court noted that the admissibility of his opinion was not conditioned upon refuting potentially conflicting opinions. Dr. Wong had the opportunity to cross-examine Dr. Kozin. It was up to the jury to decide whether Dr. Kozin’s opinion was reliable in light of the ACOG monograph.
Finally, Dr. Wong complained that Dr. Kozin did not rely on any medical literature to support his opinion. The supreme court repeated that medical experts are entitled to form opinions based on their own experience. They are not required to cite supporting medical literature. Their failure to do so can be explored on cross-examination and a jury can determine whether their experience is a sufficiently reliable basis upon which to form an opinion. Since Dr. Kozin’s testimony was admissible, the trial court did not err by allowing the jury to hear it.