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April 13, 1994


Appeal from the Circuit Court of Richland County. No. 87-L-18. Hon. George W. Timberlake, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Goldenhersh, Lewis, Chapman

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiffs, Debra Ruesch and Walter Ruesch, individually and as parents and next friend of Michael Ruesch, a minor, appeal from a judgment of the circuit court of Richland County entered on a jury verdict in favor of defendant, Richland Memorial Hospital (the hospital). Plaintiffs raise seven issues on appeal: (1) whether the verdict was contrary to the manifest weight of the evidence, (2) whether plaintiff, Michael Ruesch, was entitled to a judgment notwithstanding the verdict, (3) whether improper defense conduct generally was so prejudicial that it denied plaintiffs a fair trial, (4) whether defense counsel's conduct during closing argument was so prejudicial that it denied plaintiffs a fair trial, (5) whether the trial court erred in refusing to strike defendant's purported affirmative defense that the conduct of Dr. William Mayfield, Debra's obstetrician, was the sole proximate cause of Michael's injuries, (6) whether the trial court erred in instructing the jury, and (7) whether the errors, when considered cumulatively, denied plaintiffs a fair trial. We reverse and remand for a new trial. Our resolution of this appeal focuses exclusively on the sole proximate cause issue raised by plaintiffs, making a detailed recitation of all facts unnecessary. The pertinent facts include the following.

Debra gave birth to her first child, Jason, on November 22, 1976, by cesarean section. She was later divorced from Jason's father. Several years after her divorce, she married Walter and became pregnant with her second child, Walter's first. Debra's first obstetrical visit with Dr. Mayfield occurred when she was approximately 15 to 16 weeks into her pregnancy. On her initial visit with Dr. Mayfield, a vaginal birth after cesarean (VBAC) delivery was discussed. VBAC's were not routinely attempted until the mid-1980's. Prior to that time, doctors believed that once a woman delivered by cesarean, she should deliver subsequent babies also by cesarean. Debra discussed with Dr. Mayfield her desire to attempt a VBAC delivery. Dr. Mayfield believed Debra was an appropriate candidate to attempt a VBAC delivery. After Debra's initial visit with Dr. Mayfield, her pregnancy continued without complications.

On February 2, 1987, Debra went to Dr. Mayfield's office after rupture of her membranes at approximately 1:15 p.m. Dr. Mayfield examined her and sent her to the hospital where she arrived at approximately 3 p.m. Dr. Mayfield checked on Debra at the hospital at 6 p.m. At that time she was having some contractions, but they were irregular and of poor quality. Dr. Mayfield next checked on Debra at 9:40 p.m., at which time she was two centimeters dilated, the cervix was not effaced, and Michael was at a relatively high station. In order for a woman to deliver, she must be eight to 10 centimeters dilated, 100% effaced, and the baby must be at a plus three station. Prior to the onset of labor, a baby is at a minus three station. The baby must then drop into the birth canal, which is considered zero. At the time of delivery, a baby is at a plus three station. By 5:10 a.m. on February 3, Debra was still not contracting regularly, and Pitocin, a drug used to increase uterine contractions, was administered intravenously. By 11 a.m., Debra was three centimeters dilated, 60% effaced, and remained at a minus three station. At that time, Debra was tired and asked for a cesarean section. Dr. Mayfield encouraged Debra to continue with labor, as she was beginning to contract regularly and external monitoring showed Michael was doing well. Dr. Mayfield and Debra agreed that if she did not progress within the next hour a cesarean would probably be performed.

Mary Ann Ashworth, an obstetrics nurse at the hospital, was assigned to care for Debra on February 3. Ashworth started her shift at approximately 6:45 a.m. Dr. Mayfield testified that he told Ashworth after his 11 a.m. visit with Debra to alert the operating room staff that there was a good chance a cesarean would have to be performed. Ashworth was not specifically asked about such a conversation at trial. As of February 3, 1987, there existed no written policy concerning VBAC's and coordination between the operating room, the labor and delivery suite, and the obstetrician in case of cesarean sections. There was also no written policy addressing the handling of VBAC deliveries. The operating room of the hospital was staffed from approximately 7 a.m. to 3 p.m. If an operation was necessary after 3 p.m.; the operating room staff would have to be called back, unless the operating room had been previously instructed to stay. Dr. Mayfield testified that based upon his order to Ashworth, he believed the operating room staff would be ready at noon to do a cesarean section if necessary. He also believed the operating room and staff would be ready the remainder of the afternoon, including after 3 p.m., in case a cesarean section was necessary, because of his order to Ashworth to alert the operating room staff that there was good chance he would be performing a cesarean section. Dr. Mayfield wanted to assess the situation on an hour-to-hour basis and see how Debra was progressing.

Several other hospital employees testified about their understanding of Debra's status and whether a cesarean section would be performed. None of the operating room staff received a direct order to remain in the hospital past 3 p.m. in order to be ready to perform a cesarean section on Debra. However, all were aware that Debra was a VBAC patient, had been in labor for some time, and might be in need of a cesarean section. Only one member of the operating room staff, Joe Frye, testified that he checked on Debra's status before leaving the hospital on February 3. Frye called obstetrics and talked with an unidentified staff person. After the conversation, Frye was under the impression that a cesarean section would not be performed on Debra, and he left the hospital at approximately 5 p.m.

Dr. Mayfield examined Debra intermittently throughout the afternoon. At approximately 2:45 p.m., Debra developed a fever of 101 degrees Fahrenheit, and Dr. Mayfield was called to examine her. Dr. Mayfield conferred with a pediatrician and ordered Tylenol suppositories. At approximately 4:20 p.m., Debra was still at a zero station but was 100% effaced and completely dilated. Dr. Mayfield still felt that Debra had a chance to deliver vaginally, so it was decided that Debra would push for one hour. If she did not deliver within the allotted time, a cesarean section would be performed. Dr. Mayfield believed an operating room was ready if a cesarean section became necessary because of his previous Discussion with Ashworth. Debra pushed for an hour without much success. At 5:20 p.m., Dr. Mayfield ordered an immediate cesarean section. He left Debra's room to fill out the necessary paperwork.

A 5:25 p.m. entry on Debra's chart, made by the nurses, noted that Debra was prepped for surgery and her consent form was signed. Shortly thereafter, the nurses attending to Debra noticed a change in the fetal heart tones, as shown through an external monitor. Three nurses discussed the changes, and they ultimately determined that Dr. Mayfield should be summoned. Dr. Mayfield testified that he was summoned and returned to Debra's room at 5:40 p.m. Dr. Mayfield reviewed the tracings and discovered that the baseline fetal heart rate was much slower at 5:40 than it had been at 5:20. According to Dr. Mayfield, variability of accelerations were absent. The first time Dr. Mayfield was aware that an operating room was not ready to perform the cesarean section was at 5:40 p.m. At that time, Michael's condition had so deteriorated that Dr. Mayfield did not believe he could await the arrival of the operating room staff, which had been called back, and he believed a forceps delivery might be possible. After two separate forceps attempts, Michael was delivered vaginally.

Upon delivery, Michael was suffering from neonatal asphyxia. Michael also sustained a subarachnoid hemorrhage during the forceps delivery. A few hours after he was delivered, Michael was transferred to a hospital in Evansville, Indiana. Upon his discharge from the Evansville hospital, he was diagnosed with neonatal asphyxia, subarachnoid hemorrhage, and a convulsive disorder as a result of massive brain damage associated with birth. Because of his injuries, Michael is severely retarded and will permanently remain at the developmental stage of a one-month-old infant. He is legally blind but does respond to sound.

Dr. Mayfield settled with plaintiffs prior to trial. A limiting order was entered by the trial court which prohibited Discussion of the fact that Dr. Mayfield was made a party to the suit but settled with plaintiffs prior to the start of trial. The jurors were unaware that the hospital would receive the benefit of his settlement by a credit against any adverse judgment against the hospital.

Two experts testified for plaintiffs at trial. Dr. Gerald I. Zatuchni, a professor of obstetrics and gynecology at Northwestern University Medical School, admitted that Dr. Mayfield deviated from the standard of care in not performing a cesarean section on Debra by 3 p.m. However, Dr. Zatuchni was adamant that had Michael been delivered by cesarean section any time prior to 5:30 p.m., he would have been normal. Dr. Zatuchni pointed out that no meconium was found in the amniotic fluid, which would indicate that Michael did not suffer from a long period of undue stress while in the uterus. Dr. Zatuchni opined that Michael was not in serious distress until the last 10 to 15 minutes before delivery, and if a cesarean section had been performed any time prior to 5:30, Michael most likely would have been normal. According to Dr. Zatuchni, a cesarean section performed at 5:30 would have saved Michael from 16 minutes of oxygen deprivation and saved him from the trauma caused by the forceps delivery. Both plaintiffs' and defendant's experts agreed that ...

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