A frequently asserted claim in birth injury cases is that medical malpractice is responsible when shoulder dystocia occurs during birth. In normal deliveries, the baby’s shoulders follow soon after the head is delivered. In some cases of obstructed labor, the head delivers but the baby’s shoulder becomes stuck behind the pubic bone.
When shoulder dystocia occurs, the doctor must manipulate the baby in order to complete the delivery. If the manipulation is not undertaken with care, a bundle of nerves running through the neck, shoulder, and arm can be damaged, leading to impaired function of the baby’s arm and hand. Sometimes the impairment resolves over time, but in some cases the injury is permanent.
Proving medical negligence nearly always requires expert testimony. In a recent Oregon decision, the Oregon Court of Appeals concluded that an expert was improperly prevented from testifying that shoulder dystocia was caused by a physician’s malpractice. The case hinged on whether the expert was asked to testify about a theory of negligence that was not alleged in the complaint.
Facts of the Case
Lydia Bergstrom sued the clinic where her son, Garin, was delivered. Garin was macrosomic (unusually large) at the time of birth and his size led to complications during his delivery, including shoulder dystocia. Lydia contended that the shoulder dystocia caused Garin to sustain a brachial plexus injury during birth and to suffer from Erb’s palsy in his right arm.
Lydia alleged that her obstetrician should have known that she was carrying a macrosomic baby. She also alleged that they were negligent for failing to prepare for and perform a caesarean section rather than taking the risk that shoulder dystocia would occur during a normal delivery.
Lydia further alleged that her obstetrician negligently used a vacuum extractor to assist delivery, which contributed to the shoulder dystocia. Finally, she contended that she should have been notified that she was carrying a macrosomic baby and that her baby was at significant risk of developing shoulder dystocia if she had a normal delivery.
The jury returned a verdict in favor of the clinic. On appeal, Bergstrom argued that the trial court erred by excluding her expert testimony.
Expert Testimony
Medical experts on both sides of the case testified about the importance of using an ultrasound, among other tools, to estimate the birth weight of a baby before delivery. An estimate of birth weight is important to help doctors understand whether a mother is carrying a macrosomic baby.
The obstetrician who provided prenatal care and delivered the baby did perform ultrasounds. Lydia’s expert, Dr. Rice, would have testified that the obstetrician failed to obtain clear ultrasound images that were needed to accurately measure head circumference and to make other estimates of size. Dr. Rice also proposed to testify that the obstetrician did not properly measure the images he had.
According to Dr. Rice, the obstetrician mistakenly concluded that Garin was in the sixty-fourth percentile at the time of the ultrasound, or slightly larger than average. Dr. Rice concluded that a proper measurement would have compelled the conclusion that Garin was in the ninety-third percentile and was therefore macrosomic. Dr. Rice would have testified that the obstetrician’s mismeasurements fell below the acceptable standard of care that reasonable obstetricians would provide.
The trial judge concluded that Dr. Rice’s proposed testimony went beyond the facts that were alleged in the complaint. While the complaint alleged that the clinic was negligent in performing a vaginal delivery when it should have known that Garin was at risk of being macrosomic, the court concluded that the allegation of negligence did not give the clinic notice that the negligent performance or interpretation of ultrasounds would be an issue in the case. The court therefore excluded Dr. Rice’s testimony on the ground that it was irrelevant to the facts alleged in the complaint.
Appellate Ruling
The Oregon Court of Appeals disagreed that Dr. Rice’s testimony was not relevant to the theory of negligence alleged in the complaint. One issue raised in the complaint was whether the clinic was negligent in performing a vaginal delivery when it “knew or should have known” of the significant risk that the baby was macrosomic.
Dr. Rice’s testimony about the negligent performance and interpretation of the ultrasounds was relevant because it would have supported the allegation that the clinic “should have known” of the risk of a macrosomic baby. The appellate court decided that the allegations in the complaint were sufficiently broad to encompass Dr. Rice’s testimony about ultrasounds, even though the complaint did not specifically mention ultrasounds.
The appellate court also determined that the exclusion of Dr. Rice’s expert testimony was prejudicial. The clinic conceded at trial that ultrasounds are important in estimating fetal weight and predicting whether a baby would be macrosomic. In the absence of Dr. Rice’s testimony, Lydia was unable to prove that the obstetrician failed to provide an appropriate standard of care in performing and interpreting the prenatal ultrasounds.
Since Dr. Rice’s expert testimony, if admitted, could have changed the verdict, the court ruled that the exclusion of that testimony substantially affected Lydia’s right to a fair trial. Accordingly, the court of appeals reversed the judgment and ordered a new trial.
