By Ertel Berry
Jurors have rejected claims that a baby died shortly after delivery at Durham Regional Hospital because two doctors failed to respond to early signs of fetal distress.
The no-liability verdict, which was returned on Aug. 31, wasn't that unusual since the majority of medmal cases that go to a jury historically have ended in defense wins. In the last year or so, jury verdicts for medmal plaintiffs in North Carolina have been particularly rare.
However, the case remains noteworthy because of an issue the Durham jury didn't decide — whether the mother's alleged refusal to stop smoking during her pregnancy constituted contributory negligence that barred a wrongful death claim.
That issue had been submitted to the jury and would likely have triggered an appeal if it had been reached. But the contrib question was mooted when jurors decided for the defendants on liability.
"One of the jurors told us they were so wrapped up on the liability question that they never really got around to the smoking issue," said Raleigh attorney Michael Hurley, a lawyer for the defendants. "Had it gone up, it would have presented a case of first-impression."
The case is Elizabeth Egan, Administratrix for the Estate of Jason Widener et al v. Duke University Health System Inc. d/b/a Durham Regional Hospital et al (Durham County Superior Court No. 04 CvS 965).
The estate of the baby, who died shortly after an emergency c-section, alleged that two ob/gyns at Durham Regional didn't recognize that a placental abruption had occurred until it was too late.
An abruption happens when part of the placenta prematurely separates from the wall of the uterus. The flow of blood and oxygen to the fetus can be seriously impaired, causing fatal hypoxia.
The plaintiff argued, among other things, that non-reassuring indications from a fetal heart monitor strip and the mother's passage of a "peach-sized" blood clot showed that a c-section should have been done several hours before one was performed.
The jury apparently sided with the defendants' view that the abruption didn't occur until shortly before the c-section was ordered.
"I think the jury agreed with the defense that this was a silent abruption," said Hurley.
Fetal monitor strips are not a particularly reliable indicator of an abruption, according to Hurley.
"If you present the same strip to 12 doctors, based on the literature only about two will agree about what it shows," Hurley said. "There's that much variation in what people see."
Hurley also argued that what he called the "classic" signs of a placental abruption — uterine tenderness, abdominal rigidity, active bright red vaginal bleeding, and abnormal contractions — didn't appear until moments before the emergency c-section was ordered.
Smoking Defense
According to Hurley, the decision to raise a contrib defense in Egan was prompted when the mother stated during a deposition that she continued to smoke during her pregnancy despite knowing the potential harm.
Defense experts cited medical studies showing that smoking causes damage to placental blood vessels, according to Hurley. That in turn increased the risk of an abruption, he said.
The defendants' conclusion: the mom's smoking was a proximate cause of the abruption.
According to Hurley, the plaintiff contended that the mother didn't hide her smoking during her prenatal care. The effect of smoking was simply one of the conditions the defendants could be called on to deal with during the delivery, they argued.
Furthermore, holding the mother contributorily negligent for smoking was analogous to arguing that a cardiac patient's obesity would bar any claims that his heart attack was misdiagnosed, the plaintiff contended.
Hurley argued that, unlike a heart-attack victim, the mother's smoking in Egan harmed a third-party — the fetus.
Because the mother was the sole next-of-kin, a finding that her smoking proximately caused the child's death would amount to a complete bar to the action, according to Hurley.
"Several North Carolina cases involving parents who stood to benefit financially from wrongful death claims on behalf of children injured by a parent's negligence have required the verdict to include findings on the parent's responsibility for the death," said Hurley.
"However, no reported case in North Carolina has decided whether a mother who brings a claim for a child injured in utero can be contributorily negligent," he said.
The defense cited cases from other states that have barred mothers from receiving damages under such circumstances, according to Hurley.
The estate moved in limine to preclude the jury's consideration of the mom's negligence on several grounds, including the fact that she was no longer a party after dropping an individual claim for emotional distress.
After lengthy pre-trial arguments, Superior Court Judge Ripley Rand decided to submit the contrib issue so that any finding would be in the appellate record.
But according to Hurley, Judge Rand stated in advance that he would enter a JNOV if the jury found against the mother on the contrib issue.
In an e-mail to Lawyers Weekly, Hurley said: "Judge Rand stated that, until the legislature speaks to this issue in North Carolina, he found that cases from other jurisdictions that preclude a surviving child from suing a mother for negligently causing in utero injuries were persuasive on the question of whether a mother could be found contributorily negligent in an action by the child's estate against an obstetrician for in utero injuries."
Hurley contended that reasoning would have violated the defendants' equal protection rights because it would define a fetus as a person owed duties of care to determine their negligence, but not the mother's.
"All that was rendered moot by the jury's determination that the defendants weren't negligent," Hurley said.
Greenville attorney Frank Cassiano, a lawyer for the plaintiff, told Lawyers Weekly he was disappointed by the verdict.
On the smoking/contrib issue, Cassiano echoed the trial judge's apparent views on the subject.
"The thing to remember is that Judge Rand, who is very articulate and did a lot of research, said that is not a good argument to make in North Carolina," Cassiano said.
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October 2, 2006
