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WILLIAMS v. U.S.

United States District Court, Northern District of Illinois, Eastern Division


June 5, 2003

CHONDRA WILLIAMS, AND CHRISTOPHER WILLIAMS, INDIVIDUALLY, AND AS CO-SPECIAL ADMINISTRATORS OF THE ESTATE OF BABY BOY WILLIAMS, DECEASED, PLAINTIFFS
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Joan H. Lefkow, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER TRIAL

This cases arises out of the tragic end to the pregnancy of plaintiff, Chondra Williams ("Chondra"). Chondra's baby was delivered stillborn at Mt. Sinai Hospital Medical Center ("Mt. Sinai Hospital") on September 14, 1997. Chondra alleges that her obstetrician, Dr. Leo Boler ("Dr. Boler"), negligently handled her pregnancy, which proximately caused the stillbirth. Dr. Boler acted as an employee of Sinai Family Health Centers ("Sinai Family") during his treatment of Chondra. The original action in this case was filed in the Circuit Court of Cook County, Illinois, against Dr. Boler, Mt. Sinai Hospital and Sinai Family. When it was discovered that Sinai Family was a private entity receiving grant money from the Public Health Service pursuant to 42 U.S.C. § 233 and that Dr. Boler was acting within the scope of his employment at Sinai Family as an "officer of the United States" at the time of the events giving rise to this lawsuit, the United States removed the action to this court under 28 U.S.C. § 1442 and substituted itself as the defendant party under 28 U.S.C. § 2679(d)(2).*fn1 Original jurisdiction of this case rests in the Federal Tort Claims Act, 28 U.S.C. § 2671 ("FTCA"). The case was tried to the court from April 28, 2003 through May 1, 2003. Based on the court's evaluation of the evidence, including the credibility of the witnesses and the weight of all the evidence, the court makes the following findings of fact and conclusions of law.

Findings of Fact

1. Chondra was born on January 10, 1962, and is currently 41 years old. She was 35 years old and pregnant during the relevant time period at issue.

2. Plaintiff Christopher Williams ("Christopher") was born on July 23, 1966, and is currently 36 years old. He was 31 years old at the time of the pregnancy at issue in this case.

3. Chondra and Christopher were married throughout the pregnancy and they remain so, although they are currently separated.

4. Chondra has two daughters who were born prior to this pregnancy; however, Christopher and Chondra do not have any children together.

5. The pregnancy at issue in this case would have been the first child, a son, that Chondra and Christopher would have had together.

6. Kimya Murray is Chondra's daughter. She was born on June 3, 1981, and is currently 22 years old.

7. Melvina Murray ("Melvina") is Chondra's daughter. She was born on July 20, 1982, and is currently 20 years old.

8. Kimya and Melvina Murray would have been the sisters of the baby had it lived.

9. Faye Murray is Chondra's mother.

10. Vanetta Brown is Chondra's aunt.

11. Everyone involved knew that Chondra's pregnancy was a "high risk" pregnancy because of Chondra's weight, age, renal insufficiency, and history of high blood pressure.

12. Chondra's renal insufficiency did not cause any adverse outcome on the pregnancy, did not affect the management of the pregnancy, and did not proximately cause any injury to the fetus.

13. Chondra's high blood pressure was being adequately controlled by medication during the pregnancy, and neither the high blood pressure nor the medication caused any adverse outcome on the pregnancy, did not affect the management of the pregnancy, and did not proximately cause any injury in this case.

14. Chondra was not diabetic during the pregnancy.

15. Dr. Boler was the attending obstetrician/gynecologist in charge of and ultimately responsible for Chondra's prenatal care and treatment and the decisions concerning management of the pregnancy throughout. For example, Dr. Boler decided which tests to order and the kind of medical care to provide Chondra, including whether her baby should be delivered at a gestational age prior to term.

16. Dr. Boler had the skills to manage the pregnancy, including managing the medical aspects of the mother as well as the fetus.

17. During Dr. Boler's medical treatment of Chondra, Dr. Boler was acting as an employee of Sinai Family.

18. Sinai Family was a private entity receiving grant money from the Public Health Service pursuant to 42 U.S.C. § 233, and Dr. Boler was acting within the scope of his employment at Sinai Family as an "officer of the United States" while he treated Chondra. He conducted his practice at Sinai Family at a clinic located at 3800 W. Madison Street, Chicago.

19. "Hypoxia/hypoxemia" means the amount of oxygen being carried to the fetus falls below a critical level.

20. "Anoxia/anoxemia" means there is no oxygen being carried to the fetus.

21. "Asphyxia" means the adaptive responses of the fetus actually fail because of severe hypoxemia.

22. A biophysical profile test is a specific and accurate method for the detection of developing fetal asphyxia, and can result in early, appropriate intervention and significantly reduced fetal death from asphyxia.

23. There are five components to the biophysical profile test: (1) fetal breathing movements, (2) fetal tone, (3) gross fetal body movement, (4) fetal heart rate, and (5) amniotic fluid volume.

24. The fetal heart rate component of the biophysical profile test is also referred to as the "non-stress" component.

25. The non-stress component can be "non-reactive" when there are no heart accelerations and when there is decreased beat-to-beat variability.

26. A biophysical profile test is scored by giving two points for each of the five components that are normal. Thus, the scores range from 10/10 (risk of fetal asphyxia extremely rare), 8/10 (with normal amniotic fluid measurement, risk of fetal asphyxia extremely rare), 6/10 (equivocal test, possible fetal asphyxia present), 4/10 (high probability of fetal asphyxia), 2/10 (fetal asphyxia almost certain), and 0/10 (fetal asphyxia certain).

27. Increasing degrees of hypoxemia cause a progressive loss of biophysical functions in the fetus, such that a test score can become progressively lower as more components of the biophysical profile become abnormal.

28. A biophysical profile score is not a perfect test. It could include either a false positive or a false negative.

29. A false positive is a situation where a problematic test score is subsequently proven to be incorrect. For example, a false positive would be present if a patient received a test score of 4/10 and it was subsequently discovered that no asphyxia was present, either by a repeat of the test which was then normal or because the fetus was delivered at that point and was not asphyxiated or compromised in any way. The likelihood of a false positive depends on what the original biophysical profile score was. For example, a score of 6/10, when repeated, will be normal two-thirds of the time. A score of 4/10, if repeated, will come out with a normal subsequent score about a third of the time.

30. A false negative would exist when a baby receives a normal biophysical profile score and subsequently there is an adverse outcome, i.e., the baby dies. Statistically, approximately seven out of every thousand fetuses who have a normal test score will die within a week.

31. An abnormal biophysical profile score may return to normal following intermittent umbilical cord compression.

32. Chondra's anticipated date of delivery was October 17, 1997. Beginning in August, 1997, on various occasions Dr. Boler ordered biophysical profile tests for Chondra. The tests were performed under the supervision of a perinatologist.*fn2 Routinely, once a perinatologist informed Dr. Boler of the score from a biophysical profile test, it was Dr. Boler's responsibility to incorporate the information concerning the fetus into the entire clinical context to determine the appropriate course of treatment for Chondra and her fetus.

33. The general state of medical knowledge at the time of Dr. Boler's care and treatment of Chondra in 1997 strongly suggested that the integration of the biophysical profile scoring in the management of the high-risk obstetric patient would produce a significant and substantial fall in the ratio of mortality and stillbirth.

34. On August 12, 1997, an Oxytocin Challenge Test ("OCT") was administered to Chondra. An OCT test consists of giving a pregnant women certain drugs (Oxytocin or Pitocin) which induce and trigger contractions. The test, also referred to as a stress test, is designed to see how the baby will react to stress.

35. Chondra could not complete the OCT test on August 12, 1997. The parties dispute the reason the test was terminated. Plaintiffs' expert, Linda Hughey Holt, M.D. ("Dr. Holt"), opined (based on her review of the medical records showing that Chondra had been given oxygen) that the fetus needed resuscitation due to hypoxia caused by umbilical cord compression. Dr. Boler testified (also from medical records) that the test had to be discontinued because Chondra "became very hysterical" during the test.

36. In lieu of the OCT test, Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby later in the day on August 12, 1997. The score of biophysical profile test was 8/10. The fetal heart rate was the abnormal component of this test. 37. There is no medical record at Mt. Sinai Hospital documenting the score of the biophysical profile test of August 12, 1997, perhaps because it was performed in the labor and delivery section of the hospital, which is a different section from the clinical or "antepartum" section where the test is normally performed. The score in evidence was derived from Dr. Boler's office chart records.

38. Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby on August 14, 1997. The score of that test was 8/10. Again, the fetal heart rate was the abnormal component of this test.

39. One reason for Dr. Boler's ordering the biophysical profile test on August 14, 1997, was Chondra's previously abnormal fetal heart rate tracings from August 12, 1997. (According to Dr. Boler, "[A]bnormal fetal heart rates don't necessarily mean that the baby is in bad condition. [They mean] that you need to do something to evaluate the baby, [e.g., the antepartum tests which he did].")

40. Dr. Boler had no indication that the August 14 biophysical profile score was not a true and accurate 8/10.

41. Dr. Boler was informed of the results of the biophysical profile test performed on August 14, 1997, and he instructed the hospital medical staff to send Chondra home.

42. Dr. Boler ordered a biophysical profile test be performed on Chondra and her baby on August 18, 1997. The score of that test was 8/10, and the fetal heart rate was the abnormal component of this test.

43. One reason for Dr. Boler's ordering the biophysical profile test on August 18, 1997, was Chondra's previous abnormal fetal heart rate tracings.

44. Dr. Boler had no indication that the August 18 biophysical profile score was not a true and accurate 8/10.

45. Dr. Boler was informed of the test results from the biophysical profile test performed on August 18, 1997, and he instructed the hospital medical staff to send Chondra home.

46. Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby on August 21, 1997. The score of that test was 8/10. The fetal heart rate was the abnormal component from this test.

47. One reason for Dr. Boler's ordering the biophysical profile test on August 21, 1997, was because of Chondra's persistent non-reactive non-stress tests.

48. Dr. Boler had no indication that the August 21 biophysical profile score was not a true and accurate 8/10.

49. Dr. Boler was informed of the results of the biophysical profile test performed on August 21, 1997, and he instructed the hospital medical staff to send Chondra home.

50. Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby on August 25, 1997. The test was performed in the antepartum section of the hospital. The score of that test was 6/10. The fetal heart rate remained abnormal, and one other component (it is not known which one) was also abnormal in this test.

51. Dr. Boler had no indication that the August 25 biophysical profile score was not a true and accurate 6/10.

52. Dr. Boler was informed of the test results from the biophysical profile test performed on August 25, 1997.

53. Chondra was at 32 ½ weeks gestation on August 25, 1997.

54. Dr. Boler ordered that a repeat biophysical profile test be performed on August 25, 1997. The test was performed in the labor and delivery section of the hospital and the result of the repeat test on August 25, 1997 was 8/10. During that visit, Chondra reported active fetal movement. Again, after receiving results of the test Chondra was instructed to go home.

55. Dr. Boler viewed the non-reactive heart rate as representative of the prematurity of the infant, in light of lack of significant change in the fetal heart rate baseline.

56. Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby on August 28, 1997. This test was performed in the antepartum section of the hospital. The score of that test was 4/10. This time, the fetal heart rate was abnormal and two other components (it is not known which ones) were also abnormal in this test. Chondra, however, had reported very active fetal movement on this date.

57. Dr. Boler had no indication that the August 28 biophysical profile score was not a true and accurate 4/10.

58. A biophysical profile score of 4/10 signifies a high probability of fetal asphyxia.

59. Dr. Boler was informed of the results of the biophysical profile test performed on August 28, 1997, and after he consulted with the perinatologist he instructed the hospital medical staff to send Chondra to the labor and delivery section of Mt. Sinai Hospital for a repeat biophysical profile test after one hour.

60. Dr. Holt testified that, in her opinion as an expert within the field of obstetrics, the baby should have been delivered after the first biophysical profile score of 4/10. Dr. Holt conceded, nevertheless, that it was not a breach of the standard of care to repeat the test on August 28.

61. Dr. Frank Manning ("Dr. Manning"), defendant's expert witness, testified that although he would have delivered the baby after the first biophysical profile score of 4/10, it is always an option and within the standard of care to repeat the test because of the existence of false positives. Dr. Manning testified that one-third of 4/10 repeats would be normal.

62. Mt. Sinai Hospital has no medical record documenting the score of the repeat biophysical profile test on August 28, 1997.

63. Chondra testified that the second biophysical profile score was 4/10 based on her conversations with a nurse and from what she heard the nurse tell Dr. Boler over the phone.*fn3

64. Christopher testified that he was present and overheard a nurse tell Dr. Boler over the phone that the repeat biophysical profile score was 4/10.*fn4

65. Melvina Murray testified that she was present and overheard a nurse tell Dr. Boler over the phone that the repeat biophysical profile score was 4/10.*fn5

66. Dr. Boler testified that he "manages" approximately 200-300 pregnancies a year in his practice and about half of them are high-risk pregnancies. Although he does not recall the particular repeat test on August 28, it would have been a physician (perinatologist) who contacted him about the test.*fn6

66. Both experts, Dr. Holt and Dr. Manning, agree that if the repeat biophysical profile score was 4/10, the baby should have been delivered.

67. Dr. Boler testified that if the repeat score had been 4/10, he would have delivered the baby that day.

68. On August 28, 1997, Chondra was at 33 weeks gestation.

69. A graph that is widely used within the field of obstetrics, in evidence, shows and compares, based on collective obstetrical experience, what the risk of complications from prematurity is at various gestational ages versus the risk of fetal compromise for the various biophysical profile scores. If the graph shows that the risk of complications from prematurity at a given gestational age is less than the risk of fetal compromise for a given biophysical profile score, then that would indicate to a physician that it is safer for that fetus to be delivered and it would favor delivering the baby.

70. Had the baby been delivered on August 28, 1997, there was at least a 97% likelihood that the baby would have lived.

71. Had the baby been delivered on August 28, 1997, there was a 98.4% likelihood that the baby would not have had cerebral palsy.

72. Had the baby been delivered on August 28, 1997, more likely than not the baby would have been fine and healthy, with a very good prognosis.

73. Dr. Manning testified that if the repeat score was normal (8/8 or 8/10), it would have been a breach of the standard of care to deliver the baby. Dr. Holt agreed that if the test were repeated and the score was normal, a physician should rely on the normal score.

74. Apart from the events of August 28 now in dispute, both Dr. Holt and Dr. Manning testified that Dr. Boler's care of Chondra was meticulous.

75. Dr. Manning testified that Dr. Boler properly applied the biophysical profile criteria, managed Chondra's pregnancy, and not only met the standard of care, but exceeded it.

76. Chondra saw Dr. Boler in the Madison Street clinic on August 29. During that examination, the clinic notes reflect the fetal heart rate was 140 beats per minute and fetal movement was "positive," meaning active.

77. Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby on September 2, 1997. The score of that test was 8/10. The abnormal component of this test was the fetal heart rate. Chondra reported the fetus as active: "Fetal movements daily." 78. Dr. Boler ordered that a biophysical profile test be performed on Chondra and her baby on September 4, 1997. The score of that test was 8/10. The abnormal component of this test was the fetal heart rate.

79. The fetus could have been suffering intermittent intrauterine anoxia previously but merely was not experiencing any compromised condition at the exact time the two subsequent biophysical profile scores of 8/10 on September 2 and 4, 1997 were performed.

80. On September 7, 1997, Chondra did not feel her baby moving inside her, and the fetal heart monitor showed no fetal heart rate on that day.

81. Delivery of the baby was induced on September 14, 1997. The baby was delivered stillborn. Chondra carried the dead baby inside of her for approximately 7 days.

82. There were no genetic or chromosomal defects, fetal abnormalities, intrauterine growth retardation, birth defects, or any severe fetal problems in the dead baby. The baby's organs were normal.

83. The autopsy report listed the cause of death as intrauterine anoxia. The cause of death in terms of what led to the intrauterine anoxia, however, is unknown.

84. Dr. Holt testified that the baby suffered from a "vulnerable cord" and died after September 4, 1997 of a chronic asphyxia process, that is, chronic lowering of the oxygen level to the fetus. Dr. Holt testified that the baby was periodically having a cord compromise and that the fetus was prone to a "terminal cord event." Dr. Holt stated that the baby's sharp decelerations in heartbeat followed by rapid recovery on August 12 was a "typical vulnerable cord pattern." Dr. Holt also characterized the biophysical test scores as illustrating a deteriorating pattern of the fetal condition.

85. Dr. Manning disagreed with Dr. Holt's opinion as to a "vulnerable cord" or a chronic asphyxia process. Dr. Manning stated that he believed there was no chronic condition because there was no decline to an abnormal level in the amniotic fluid volume, as evidenced by the biophysical process scores on September 2 and 4 (Dr. Manning referred to the amniotic fluid volume level as the "single best marker of a fetus that is experiencing chronic stress") and because there was no intrauterine growth retardation of the baby. According to Dr. Manning, fetuses who have chronic asphyxia have intrauterine growth retardation, i.e., they fail to grow normally.*fn7

86. One of the functions of the amniotic fluid volume is to cushion the umbilical cord. There is more concern about the possibility of cord compromise where the amniotic fluid volume is lower.

87. Dr. Manning stated that there was no question that the baby had normal amniotic fluid volume throughout.

88. Dr. Holt, more conservatively, characterized Chondra's amniotic fluid volume as "always on the borderline low end of normal."

89. Dr. Manning testified that the baby died from an acute event.

90. Chondra's kidneys failed around July 2001, and she is now on hemodialysis as treatment for her renal failure.

91. Chondra should not get pregnant while on hemodialysis because of the grave bodily and health risks to herself and the fetus. No prudent physician would advise Chondra to get pregnant in her condition, prior to her having a kidney transplant.

92. There is no guarantee that Chondra will ever receive a kidney transplant, and, therefore, she may have to be on hemodialysis for the rest of her life.

93. If Chondra does not receive a kidney transplant soon, considering her advancing maternal age, the pregnancy at issue in this case would have been her last opportunity to have a child.

Conclusions of Law

The FTCA provides that the United States shall be liable "in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. The substantive law governing the imposition of liability in FTCA cases is "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Under Illinois law, to establish a medical malpractice action a plaintiff must prove (1) the standard of care by which the physician's treatment is measured; (2) a deviation from that standard; and (3) that the deviation proximately caused the plaintiff's injury. Campbell v. United States, 904 F.2d 1188, 1191 (7th Cir. 1990), quoting Ramos v. Pyati, 179 Ill. App.3d 214, 220-21, 534 N.E.2d 472, 475 (1989). See also Purtill v. Hess, 111 Ill.2d 229, 241-42, 489 N.E.2d 867, 872 (1986); Newell v. Corres, 125 Ill. App.3d 1087, 1092, 466 N.E.2d 1085, 1088 (1984). The standard of care under Illinois law "requires a physician to possess and to apply that degree of knowledge, skill and care which a reasonably well-qualified physician in the same or similar community would bring to a similar case under similar circumstances." Campbell, 904 F.2d at 1191, quoting Purtill, 111 Ill.2d at 242; 489 N.E.2d at 872. Whether a doctor deviated from the standard of care is a question of fact which must be decided by reference to expert testimony. Campbell, 904 F.2d at 1193; Walski v. Tisenga, 72 Ill.2d 249, 256, 381 N.E.2d 279, 283 (1978).

Plaintiffs maintain that Dr. Boler deviated from the standard of care on two occasions on August 28, 1997. Plaintiffs first argue that the standard of care required Dr. Boler to deliver the baby after the first biophysical profile score of 4/10. Plaintiffs also contend that the evidence shows that the repeat biophysical profile score on August 28 was a 4/10, and that the standard of care required delivery at that time. Insofar as both experts agree that the standard of care required delivery if the second score was 4/10, the court will address the issue of the repeat score first.

No medical records, bills or any other documents exist showing the results of this repeat biophysical profile test performed on August 28. Neither side disputes that such a repeat test took place in the labor and delivery section of Mt. Sinai Hospital or that Mt. Sinai Hospital apparently lost the records. Plaintiffs rely on the testimony of Chondra, Christopher and Melvina that the repeat test score was 4/10. Chondra, Christopher and Melvina professed clear memory as to what happened during the repeat test on August 28. According to Chondra, a male doctor told her the result was a 4 and then told the (female) nurse to contact Boler. The nurse immediately paged Boler, and (time delay unknown) she talked to Boler in the presence of Chondra, and Chondra heard the nurse tell Boler it was 4/10, yet he directed Chondra to go home. Christopher made no mention of a male physician but testified that a nurse told Chondra the result of the test, and that he observed a nurse talking with Dr. Boler at the bedside phone. Melvina testified that her mother told her the test score was 4/10 and said the conversation between the nurse and the doctor was outside the room, and she heard the nurse later instruct them to go home, although she revised her testimony on cross-examination, stating that she overheard the nurse tell Dr. Boler that the result was 4/10. Dr. Boler testified that he would have received the results of the August 28 tests from the perinatologist rather than a nurse.

The court finds the testimony of Chondra, Christopher and Melvina appropriately approximate in light of the passage of time since August 28, 1997. Generally, all this testimony presented a credible picture of how Chondra, Christopher and Melvina remembered the events. The court is not persuaded, however, that the witnesses have clearly distinguished between the first test and the second test on that date.

Plaintiffs also rely on an implication that Dr. Boler ultimately neglected Chondra because he was overwhelmed by the large number of patients he normally dealt with. This argument lacks persuasive force where the record shows no development of this theory (such as evidence of an average patient load) and where the record otherwise shows the close detail with which Dr. Boler followed Chondra's condition.

In response to the claim that the repeat score was 4/10, the United States asks the court to infer that Dr. Boler would not have sent Chondra home based on his prior record of treatment. As the evidence shows, Dr. Boler ordered frequent biophysical profile tests for Chondra. Dr. Manning testified that the tests were ordered more frequently than was required, even referring to Dr. Boler's care as "compulsive." On cross, Dr. Holt agreed that Dr. Boler ordered frequent tests for Chondra and that his care was "meticulous." Dr. Holt further testified that she found it surprising that Dr. Boler would have sent Chondra home following a repeat 4/10 based on Dr. Boler's prior handling of the pregnancy. The evidence also shows that Dr. Boler ordered a repeat score on August 25 after Chondra received a 6/10 (described as an equivocal score), and Chondra was sent home only after the repeat score on August 25 was a 8/10. Moreover, Dr. Boler also ordered the repeat test on August 28 after Chondra received a 4/10. Dr. Boler himself testified that while he cannot remember what the score of the repeat test on August 28 was, he would not have sent Chondra home if it was a repeat 4/10.

Based on all of the evidence presented, the court concludes that plaintiffs have not carried their burden to show that the score was below 8/10. Although the testimony of Chondra, Christopher and Melvina is credible, its weight is not great compared with Dr. Boler's knowledge of the protocol for the biophysical profile test (that he sent Chondra for a repeat test on two occasions is a strong indication that he knew the protocol), his past experience, and his "meticulous" treatment of Chondra, which factors weigh against the notion that he would have sent Chondra home after a repeat score of 4/10.

Finally, the next day, August 29, the baby was active and his heart rate was normal. The same was true on September 2 and 4. This evidence supports a finding that the fetus's viability was not deteriorating, as would have been indicated by a second 4/10 on August 28. The weight of the evidence, then, is that the repeat score was an 8/10.

In summary, the court finds by a preponderance of the evidence that the second biophysical profile test was normal, indicating that the first test was a false positive. As such, plaintiffs have not carried their burden to show that Dr. Boler deviated from the standard of care in failing to deliver the baby upon learning of the result of this second test.

Moving to plaintiffs' next theory of liability, they argue that Dr. Boler deviated from the standard of care when he did not deliver the baby after the first biophysical profile score of 4/10. Dr. Holt testified that based on the first 4/10, combined with the age of the baby at the time (33 weeks gestation), the baby should have been delivered at that point. Plaintiffs further support Dr. Holt's opinion by references to the literature of Dr. Manning, which states that a baby should be delivered if there is a score of 4/10 so long as there are no complicating factors and the baby is of sufficient gestational age. Plaintiffs present evidence that no such complicating factors were present and that the baby was of sufficient age. Plaintiffs also point out, correctly, that the literature does not advise that a 4/10 test should be repeated, but instead only says that the baby should be delivered.

Defendants counter with the testimony of Dr. Manning, who testified that repeating the test score was within the standard of care. Dr. Manning testified that some level of judgment must be afforded when examining the results of the biophysical profile tests. Dr. Manning noted that while he would have delivered the baby after a score of 4/10, nonetheless, a doctor's judgment to repeat the test, particularly in light of the possibility of a false positive, is within the standard of care. Moreover, Dr. Manning testified that if he had a 4/10, and it was repeated as normal, he would go with the normal repeat score and would have assumed the 4/10 was a false positive, a point with which Dr. Holt could not disagree. Dr. Holt further testified on cross that repeating the test was within the standard of care, even though she believed that not delivering after the first 4/10 was not.

The court pauses to point out how narrow the issue is with respect to the first biophysical profile test. The question here is regardless of what the second test score was, did Dr. Boler deviate from the standard of care when he was confronted with a biophysical profile score of 4/10 and instead of delivering the baby ordered that the test be repeated? Dr. Manning stated that it was within the standard of care to repeat the test, particularly in light of the fact that scores of 4/10 are false positives approximately one-third of the time. Dr. Holt stated that the standard of care required delivery of the baby after the first 4/10, although she did admit that a second test itself did not deviate from the standard of care. Although the court acknowledges that there is some persuasive force to plaintiffs' argument that the baby should have been delivered based on Dr. Manning's frank statement that he would have delivered this baby after the first 4/10 score and the statements in his literature, it is unwilling to reject Dr. Manning's opinion that the decision to repeat the test was within the standard of care. Such an opinion is reasonable when statistical reports demonstrate that one of every three such tests are situations where fetal asphyxia is not present. Indeed, Dr. Holt testified that false positives were a reason why a doctor may choose to repeat a biophysical profile test. Moreover, she admitted her familiarity with literature stating that when a repeat is performed, the normal score should be used. If it is true, as both experts stated, that a repeat test score following a 4/10 should be followed if normal and that one out of every three repeat tests after a 4/10 would be normal, it is unreasonable to say that a doctor deviates from the standard of care when he does not deliver after the first score and orders a repeat test.*fn8

Plaintiffs attempt to characterize Dr. Holt's argument as stating that Dr. Boler deviated from the standard of care when he did not deliver the baby after the first biophysical profile and that his ordering a second biophysical profile test was simply not a further deviation. Insofar as that is Dr. Holt's view, the court rejects it and finds more credible Dr. Manning's view of the standard of care. Under Dr. Manning's view, a doctor in Dr. Boler's situation is afforded some level of judgment in dealing with the first biophysical profile score of 4/10. Certainly a doctor could have chosen to deliver the baby, as Dr. Manning and Dr. Holt would have done. But, as both Dr. Boler and Dr. Manning testified, the physician treats the patient, not the test. The pregnant woman and her fetus are not static. As information flows, presumably the physician is to react accordingly. Common sense suggests that once the information arrived that Chondra's baby was not in a compromised state after all, Dr. Boler was free to choose not to deliver at that time. To say otherwise would be, in effect, affording Dr. Boler no judgment as to how the pregnancy should be handled. In sum, the court finds that it was not a deviation from the standard of care to order a repeat test. Plaintiffs' case against Dr. Boler on this ground, therefore, fails.

Because the court finds that plaintiffs have not carried their burden in showing that Dr. Boler deviated from the standard of care in his handling of Chondra's pregnancy, the court must find for the defendant. The loss of this baby was without question a tragedy for the plaintiffs and their families. The court, although sincerely sympathetic, is unable to conclude that Dr. Boler's departed from the standard of care and, therefore, does not find that his conduct caused their tragedy.

CONCLUSION

Based on the preponderance of the evidence, the court finds that plaintiffs have not established that Dr. Boler deviated from the standard of care. As a consequence, plaintiffs are not entitled to recover under the FTCA. The clerk is directed to enter judgment in favor of the defendant. This case is terminated.


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