Pennsylvania Justice

Use of Treatise to Cross-Examine Medical Witnesses Leads to Reversal of Malpractice Verdict

Written on Friday, July 31st, 2020 by T.C. Kelly
Filed under: Expert Opinions, In the News, Working with Experts

A Pennsylvania jury that weighed competing expert testimony awarded more than $40 million to a disabled child after deciding that the disability was caused by medical negligence. The Superior Court of Pennsylvania reversed the judgment and ordered a new trial because a learned treatise was used improperly to cross-examine defense witnesses.

Facts of the Case

Kira Charlton was pregnant with twins. Prenatal testing revealed an abnormally rapid heartbeat (tachycardia) in one twin. That twin was significantly smaller than the other. Charlton’s OB-GYN decided to induce labor.

About 20 hours after labor was induced, Dr. Steven Troy decided that Charlton was ready to give birth. He delivered the first twin without complication. Although an ultrasound taken eight hours earlier showed both babies in the head-down position, Dr. Troy discovered that the second twin was in the feet-down position.

As the second baby’s head and shoulders were being delivered, everyone in the delivery room heard a “popping” sound. The primary labor and delivery nurse testified that she was concerned Charlton may have suffered a hip or back injury, but she saw nothing abnormal about Charlton. Nor did she see Dr. Troy maneuvering the baby in any way at the time she heard the sound.

After he delivered the second twin, Dr. Troy noted that she had poor tone in her head, neck, and limbs. The baby was taken to neonatal intensive care because of concern that the baby had suffered a spinal cord injury. The baby was then transferred to Children’s Hospital for an MRI. The MRI revealed “no definite abnormality,” but the interpretation was qualified by the remark that the baby’s positioning was not optimal.

An MRI taken eight months later confirmed the existence of a nerve root avulsion injury. The injury caused permanent damage to the spinal cord.

Charlton and her husband sued Dr. Troy and related parties. They alleged that Dr. Troy’s negligence during the delivery caused the baby’s disability. Dr. Troy contended that the injury was caused by placental insufficiency while the baby was still in the womb. Placental insufficiency is a condition that describes the inability of the placenta to deliver an adequate supply of nutrients and oxygen to the fetus.

Plaintiffs’ Expert Testimony

The Charltons called Dr. Benjamin Hamar, an expert in maternal-fetal medicine, to establish the standard of care that Dr. Troy should have followed. Dr. Troy testified that when a fetus is in the feet-down position, the physician should perform an ultrasound to determine whether the head is in a flexed position. The chin of a fetus in the flexed position will be tucked into the chest.

Dr. Hamar testified that the standard of care permits the vaginal delivery of a baby whose head is in the flexed position, but requires constant use of an ultrasound to assure that the head remains in that position. If the head is extended backward (deflexed) or is straight (hyperextended), the standard of care calls for delivery by caesarean section.

Dr. Hamar regarded Dr. Troy’s failure to conduct an initial ultrasound and to monitor the delivery using an ultrasound to be a breach of the standard of care. Dr. Hamar rejected the theory that the baby was harmed by placental insufficiency because the second baby’s birth weight was not 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} less than the first baby’s, because amniotic fluid was not low, and because a Doppler assessment of the umbilical cord did not indicate a growth restriction.

The Charltons also offered the testimony of Dr. Robert Clancy, a pediatric neurologist, who testified that the location of the spinal cord injury was a classic sign of hyperextension during delivery. A pediatric neurologist, Dr. Paul Caruso, testified that the spinal cord injury was caused by a pulling motion that tore the nerve roots. Dr. Caruso also testified that the injury was not congenital and that no medical literature supported the claim that the condition could occur prior to delivery.

A placental pathologist, Dr. Theresa Boyd, testified that the twins’ placental compartments were normal and that the umbilical cord showed no sign of abnormality. The baby’s treating surgeon testified that the spinal cord injury was caused by trauma and is an irreparable, permanent injury.

Defense Expert Testimony

Dr. Robert Debbs, an expert in maternal-fetal medicine and the use of ultrasound in obstetrics, testified that an ultrasound may be helpful if the baby’s position is unknown, but it was known that the second baby was in the feet-down position. In Dr. Debbs’ opinion, the standard of care did not require a physician to determine whether the baby’s head was deflexed or hyperextended.

Dr. Debbs also disagreed that a cesarean section would have been safer than a vaginal delivery. In Dr. Debbs’ view, a vaginal delivery of a twin in the feet-down position is safe if the first delivery was not difficult and if the second baby is not 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} larger than the first.

The smooth delivery of the second twin was, in Dr. Debbs’ view, evidence that Dr. Troy kept the head in the flexed position. He also concluded that the popping sound did not come from the baby, an opinion that is difficult to credit since Dr. Debbs was not present at the delivery, did not hear the sound, and was not in a position to identify another source of the sound.

Michelle Grimm, an expert in biomechanical engineering, testified that “maternal forces” during pregnancy could cause root avulsions. Dr. Jerome Barakos, a pediatric neurologist, testified that the MRI taken after the baby’s birth showed scarring and cysts on the baby’s spinal cord that would have taken weeks to form. Dr. David Schwarz, a placental pathology expert, testified that volume of the placenta supporting the second twin was very small and that the baby suffered from an intrauterine growth restriction due to insufficient supplies of blood and oxygen.

Sufficiency of Evidence

The jury found that Dr. Troy breached the standard of care and that the breach harmed the twin. The jury awarded more than $40 million to provide a lifetime of care for the disabled child.

The question on appeal was whether the evidence was sufficient to support the verdict. Since it is the jury’s function to evaluate expert evidence, most appellate challenges to the sufficiency of evidence fail if there is any evidence that could support the verdict.

The appellate court decided that the verdict was based on one of two mutually exclusive theories of liability. First, that Dr. Troy was negligent in not performing an ultrasound during the birth. Second, that Dr. Troy pulled the baby with too much force, causing the nerve root injury.

The court concluded that a jury could reasonably find from the expert evidence that the standard of care required Dr. Troy to use an ultrasound while delivering the second twin. The court expressed concern, however, that “back door” evidence suggested that Dr. Troy may have caused the baby’s injury by using too much traction during delivery.

No expert testimony was presented regarding the standard of care governing the use of traction in delivering a second twin who is in the foot-down position. The Superior Court decided that the trial court erred by allowing the jury to consider the excessive traction theory as a cause of the baby’s injury.

Precedent prevented the court from reversing the verdict based on the erroneous submission of the excessive traction theory to the jury. Dr. Troy did not ask for a verdict form that would have allowed the jury to make separate decisions about the two theories of liability. In the absence of that request, a verdict that is permitted by one theory must be affirmed even if the verdict could not be sustained on the alternative theory.

Admission of Learned Treatise

Perhaps to save Dr. Troy from a verdict that might have been based on a theory it regarded as unsupported by expert testimony, the Superior Court concluded that the Charltons’ reliance on a learned treatise required a new trial. A “learned treatise” is publication that experts in the field generally regard as authoritative.

In Pennsylvania, admitting a learned treatise as substantive evidence would violate the rule against hearsay. Experts may nevertheless testify that a learned treatise informed their opinions. Under certain circumstances, a learned treatise may also be used to impeach an expert’s opinion.

The Charltons cross-examined Dr. Troy and defense experts with Dr. Volpe’s textbook, Neurology of the Newborn. The text associates a “snapping” or “popping” sound during delivery with a tearing of the dura, a membrane covering the brain and spinal cord.

Dr. Clancy testified that Dr. Volpe’s textbook is a “classic textbook of child neurology” that collects “child neurology wisdom about newborns.” Dr. Clancy agreed with the text that a popping sound is the sound of something tearing.

On cross-examination, Dr. Troy testified that he was unaware of any obstetrical literature identifying a popping as the sound of a dura tearing. The Superior Court held that it was improper to impeach Dr. Troy with the Volpe text because it is “neurological literature,” not “obstetrical literature.”

The trial court concluded that a book about delivering babies is “obstetrical literature” even if it is written by a neurologist. The court thought the distinction that Dr. Troy drew was disingenuous, since obstetricians cannot ignore the risk of neurological harms when they deliver babies. The Superior Court thought otherwise.

The Superior Court also concluded that Dr. Troy testified as a fact witness, not an expert witness, and that his opinions were therefore not properly impeached with a learned treatise. The Superior Court rejected the trial court’s conclusion that Dr. Troy “was introduced, groomed, and treated as a causation expert.”

Since the trial court supported its evidentiary decision by sound reasoning, a good argument can be made that the trial court did not abuse its discretion in permitting reference to the learned treatise. A cynic might wonder whether the Superior Court found a “back door” way to give Dr. Troy a new trial based on its conclusion that the “excessive traction” theory of liability should not have been submitted to the jury.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.