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NEMMERS v. UNITED STATES

June 27, 1985

RONALD J. NEMMERS AND SARAH L. NEMMERS, AS PARENTS AND NEXT FRIENDS OF ERIC P. NEMMERS, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

MEMORANDUM OPINION

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.

FACTUAL BACKGROUND

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 23.

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 trial.

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.

FINDINGS OF FACT

Statute of Limitations

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.

Standard of Care

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 itself.

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, that ...


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