The opinion of the court was delivered by: Mihm, District Judge.
The Court has determined that this action, filed by Ronald and
Sarah Nemmers as parents and next friends of Eric Nemmers,
seeking damages for alleged medical malpractice, is governed by
the substantive law of the State of Maryland. The action is
brought under the Federal Tort Claim Act which imposes a
statutory time limit of two years after the accrual of the claim.
28 U.S.C. § 2401(b). Under Maryland law, the burden of proving,
by a preponderance of the evidence, that the Defendant's
negligence was one direct and proximate cause of the injury
suffered rests with the Plaintiffs.
Eric Nemmers was born on July 23, 1973 at the Hospital of the
Naval Air Station, Patuxent River, Maryland. Sarah Nemmers
learned of her pregnancy on November 13, 1972 as a result of a
pregnancy test performed in Madison, Wisconsin. Her husband,
Ronald, had enlisted in the Navy and been sent to Orlando,
Florida for boot camp. She, in the meantime, returned to Dubuque,
Iowa, where she saw an obstetrician on December 22, 1972. He
confirmed that she was pregnant and calculated an estimated due
date of June 29, 1973, based on the first day of her last
menstrual period. From February of 1973, when she moved with her
husband to the Naval Air Station in Pensacola, Florida, to and
through the time of her delivery, she sought and maintained
regular obstetrical care from United States naval physicians. She
was seen five times by physicians in Pensacola and, when Ronald
Nemmers was transferred to Maryland, she began routine visits at
the Naval Air Station, Patuxent River, Maryland.
Sarah Nemmers was 21 days beyond her estimated due date on July
20, 1973 when she was taken to the hospital with irregular pains
and very light contractions. At that time, Dr. Hooper, one of her
three treating physicians at Patuxent River, prescribed a
suppository and sent her home, telling her to return when the
pains were regular and five minutes apart. After experiencing
more intense pain, beginning in the wee hours of July 21, she
contacted the hospital at approximately 10:00 a.m. and was again
advised (this time by an obstetrical nurse) that she should not
come in until the pains were five minutes apart. They continued
with increasing intensity, causing her to again telephone the
hospital at 7:00 p.m. An obstetrical nurse reiterated the
instruction that she was not to come or call again until the
pains were regular and five minutes apart. During the late night
hours of July 21, Mrs. Nemmers, on three occasions, discharged a
dark yellow, mucousy fluid which disclosed no blood when she
inspected it. By the evening of July 22, pain and the insistence
of her visiting inlaws compelled Sarah to return to the hospital,
even though the pains were still not five minutes apart. She was
admitted, in labor, on July 22 at 9:50 p.m. At that time, an
examination by Dr. Stephen Hooper revealed that the cervix was
95% effaced, dilation was at four centimeters, and the fetal
heart rate was 132.
In the early morning hours of July 23, the attendant
obstetrical nurse had difficulty finding the baby's heartbeat.
Dr. Hooper ordered the use of a Doptone fetal heart tone
amplifier, and subsequent monitoring over the next three and
one-half hours showed an irregular beat, varying between 120 and
140. In the operating room this range dropped to 100/120. On two
occasions prior to delivery, the heart rate declined to 80. Eric
Nemmers was delivered by Caesarean section at 4:22 a.m. on July
Dr. Hooper's "clinical record" discloses his belief that the
baby was "probably post-mature." This opinion was echoed by Drs.
Burmeister, Rosenthal, and Socol, all experts who testified at
Although Eric appeared at birth to be normal (his Apgar scores
were five at one minute and nine at five minutes) and both
parents were told that they had a healthy baby boy, Mrs. Nemmers
became concerned when Eric was about 12 months old because she
felt he was not even ready to begin walking. When she expressed
her concerns to the pediatrician at his one year check-up, she
was told not to worry. At that time the Nemmers were taking Eric
to Bethesda for treatment of his crossed eyes and the
pediatrician suggested that the eye problems might be a partial
cause of his not walking. That pediatrician, Dr. Lutehart, never
did motor testing of Eric. Such testing was done when Eric was 18
months old, resulting in a preliminary diagnosis of either
cerebral palsy or muscular dystrophy.
The final diagnosis of cerebral palsy was made by a
neurologist, Dr. Loeschner, who came from Bethesda. He became
Eric's treating physician and, when questioned by Mr. and Mrs.
Nemmers about the cause of Eric's illness, he assured them that
"these things just happen" and that "it's an act of God and only
God knows why." At this time, no one ever indicated to the
Nemmers that there might be any connection between the
circumstances of the delivery and Eric's cerebral palsy.
Following Ronald Nemmers' discharge from the Navy in 1977, the
Nemmers moved to Minnesota and, in 1977, took Eric to Dr. Steven
Copps, a pediatrician at the Gunderson Clinic in LaCrosse,
Wisconsin for evaluation and treatment. In his evaluative report
of May, 1977, Dr. Copps indicated several possible causes of
Eric's condition, suggesting that a bout of influenza in the
first trimester of the pregnancy was the most likely cause. Dr.
Copps, in his report, did allude to something which he called the
"trauma of birth."
The Nemmers moved to Peoria and Eric began attending the Robert
Jamieson school. In October of 1979, the Nemmers learned that
Eric was not just "developmentally delayed," or mildly retarded
but, rather, that he suffered from severe retardation.
On August 26, 1981, Mrs. Nemmers read an article which appeared
in the Peoria Journal Star. The article recounted a number of
similarities between the little girl who was its subject and
Eric, described a Caesarean section being delayed with resulting
reduction of oxygen, and reported a large out of court
settlement. Then on the next day, August 27, she and her husband
read another article in the same newspaper. This time the report
was of a case which was in no way similar to Eric's, but it did
indicate that the aggrieved parties were suing the Government.
The Nemmers submit that it was the juxtaposition of these two
articles which first alerted them to the possibility that there
was a connection between Mrs. Nemmers' difficult delivery and
Eric's subsequent problems. They promptly sought legal counsel
and initiated this suit against the federal government.
The Nemmers sought information about the cause of Eric's
cerebral palsy from Dr. Pretlow, a pediatrician at Patuxent
River, and Dr. Loeschner, the neurologist from Bethesda Naval
Hospital. They were assured that the causes were unknown and that
it was just one of those things and only God knows the cause.
Neither doctor at any time suggested a connection between the
circumstances of delivery and Eric's cerebral palsy, nor had any
such causal relationship been suggested by any Navy personnel at
the time of Mr. Nemmers' discharge. Although the Nemmers had
access to the medical records of both Mrs. Nemmers and Eric, they
were effectively diverted from the import of those records by
statements made to them by the doctors.
It is plain from the testimony of both Mr. and Mrs. Nemmers
that they did act quickly after the appearance of the two
newspaper articles which alerted them to the possible connection
between Mrs. Nemmers' difficult delivery and Eric's cerebral
palsy and extreme retardation.
Post-maturity is a red flag which signals, for the
obstetrician, an increased vulnerability of the fetus to injury
during labor and delivery. This increased risk is caused by a
diminution of the ability of the placenta to provide oxygen and
nourishment to the fetus and a probable decrease in the amniotic
fluid, which normally acts as a buffer between the fetus and the
muscle walls during intense labor and delivery. There are certain
protective procedures which are triggered once the obstetrician
is on notice that the patient might be post-mature. The experts
presented by Plaintiffs were uniform in their assertion that, in
1973, an indication of post-maturity required the reasonably
competent obstetrician to employ certain diagnostic techniques
for monitoring the continued well-being of the fetus and the
placenta. The testimony of Plaintiffs' experts, reinforced by the
Fourteenth Edition of Williams Obstetrics, 1971, which was the
leading obstetrical authority in 1973, established the need for
periodic measurements of the estriol in the mother's urine and
periodic amniocentesis to test for the presence of meconium in
the amniotic fluid or for a drastic reduction in the fluid
Defendant's expert, Dr. Michael Socol, was not in practice in
1973; he was a medical student. The thrust of his testimony was
the establishment of what was not the standard of care in 1973,
but, despite specific questions from the Court, he never
indicated what the standard of care at that time was.
The value of estriol testing is questioned today, but it is not
clear, even at this time, whether it is totally without merit.
More recent technological advances have proven to be more
effective and, consequently, have preempted its use. But,
Plaintiffs' expert established that estriol testing and
amniocentesis were elements of the standard of care in 1973 and,
in the presence of suspected post-maturity, should have been
done. The Court is persuaded, by a preponderance of the evidence,