The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW
On January 18, 2007, Plaintiffs Jason, Jamie, and J.N.T. Trowbridge filed this medical malpractice action against the United States and St. Luke's Magic Valley Regional Medical Center ("Magic Valley RMC"). Complaint (Docket No. 1). Plaintiffs later stipulated to dismiss the claims against Magic Valley RMC. (Docket No. 53).
The claims remaining against the United States allege that J.N.T., the daughter of Jason and Jamie Trowbridge, suffers from cerebral palsy as a result of Dr. Samuel Ogden's negligence in treating Jamie Trowbridge in August 2004 during her labor and J.N.T.'s delivery at Magic Valley RMC, in Twin Falls, Idaho. Amended Complaint (Docket No. 3).
On August 5, 2004, Jamie Trowbridge was admitted to Magic Valley RMC for labor induction. Robyn Ho Chee, R.N., Nancy Bowman, R.N., and Susan Forsgren, R.N., assisted Dr. Ogden with the labor at various times during that day and the following morning. Around 9 a.m. on August 5th, nurse Ho Chee started administering the drug Pitocin to Jamie pursuant to Dr. Ogden's order for "Pitocin per protocol." (Ho Chee testimony; Ogden testimony, Days 5, 6). Pitocin is a drug used to stimulate labor. (Hall testimony, Day 1). The Pitocin dosage was increased at various times through 5:17 p.m. See Ex. 5001. Additionally, because Jamie Trowbridge was Strep B positive, she also received Ampicillan, an antibiotic. (Ogden testimony, Day 6).
Beginning at about 12:40 p.m., the contraction pattern reflected tachysystole, meaning there were greater than five contractions in a ten minute period. (Ho Chee testimony; Hall testimony, Day 1; Ogden testimony, Day 6; Ex. 5001, p. 57).
Around 2:30 p.m., Jamie Trowbridge received an epidural, a method of pain relief administered by a small catheter inserted into the back near the spine. (Ho Chee testimony; Hall testimony, Day 2; Ogden testimony, Day 6; Ex. 5001, p. 72).
Jamie's labor was initially monitored with the use of an external monitor. However, the external monitor was not tracing well from about 7:00 p.m. to about 8:45p.m. in the evening. (Forsgren testimony). Around 8:45 p.m., Dr. Ogden placed a fetal scalp electrode and intrauterine pressure catheter to monitor the contractions and fetal heart rate (FHR). (Hall testimony).
At approximately 8:45 p.m., Mrs. Trowbridge's temperature began to rise. Ex. 5001(B), pp. 117, 122, 133; Ex. 5000, p. 261; Forsgren testimony. Shortly thereafter, the FHR became tachycardic, meaning a heart rate above 160 beats per minute. (Hall testimony, Day 2; Depp testimony, Day 3). Dr. Ogden suspected that Jamie had chorioamnionitis, an infection, and ordered the administration of an antibiotic. Dr. Ogden believed the tachycardia was due to the maternal fever. (Ogden testimony, Day 6).
On August 6, 2005, at approximately 12:50 a.m., the FHR reflected bradycardia, a drop in FHR below 110 beats per minute. (Depp testimony, Day 3; Ogden testimony). Dr. Donald E. Smith, the ob/gyn on call, and Dr. Ogden, determined that an emergency C-section delivery was necessary. Jamie Trowbridge was taken to the operating room and at 1:14 a.m. the baby, J.N.T., was delivered via C-section. The umbilical cord was wrapped once around J.N.T.'s neck at delivery, a condition known as a "nuchal cord." (Smith testimony).
On June 15, 2006, J.N.T. was diagnosed with cerebral palsy, a nonprogressive neurologic brain disorder that involves fixed, life-long abnormalities in posture, tone, and control of movement. (Glass testimony).
Plaintiffs contend that J.N.T.'s cerebral palsy was the tortious result of Dr. Ogden's negligence, attributable to the United States government. Plaintiffs allege, among other things, that the applicable standard of care required Dr. Ogden to monitor the contraction pattern and to reduce or turn off the Pitocin because the baby was not tolerating excessive uterine contractions caused by the drug. Plaintiffs' Trial Brief, p. 2 (Docket No. 73).
A court trial began on June 29, 2009 and ended on July 9, 2009. During trial the Court heard testimony from Plaintiffs' expert witnesses, Dr. Michael Hall, an ob/gyn, and Dr. Harvey E. Cantor, a pediatric neurologist, and from Defendant's expert witnesses, Dr. Richard Depp, an ob/gyn, Dr. Thomas P. Naidich, a neuroradiologist, and Dr. Stephen T. Glass, a pediatric neurologist. Drs. Ogden and Smith, Plaintiffs Jason and Jamie Trowbridge, and the nurses providing labor and delivery care for Jamie and J.N.T. also testified.
Plaintiffs seek damages for past and future medical care, pain and suffering, and emotional distress, along with attorneys' fees and costs. Amended Complaint, pp. 7-8 (Docket No. 3). The parties stipulated to the amount of past and future medical and care costs, in the amount of $96,467.67 for past care/costs and $3,160,239.50 for future care/costs. (See Ex. 13). The parties also stipulated that Medicaid paid $51,306.47 for the past medical care.
II. MEMORANDUM DECISION/SUMMARY OF RULING*fn2
This is a case of difficult issues located around imperfect intersections of medicine and law. The standard of care issues are a lecture hall template for discussion of how an evolving field of medicine can create circumstances where--depending upon one's point of observation--obvious signals are missed by an inattentive physician, leading to tragic results, or artful lawyers create illusions of misdeeds in places where doctors have done everything as properly as their profession would require, but where unwanted results nonetheless can still occur. Such is the landscape of the labor and delivery ward of the hospital, where modern diagnostic and monitoring tools allow more opportunities for physicians to predict and protect against dangers to the mother and the baby, and perhaps more opportunities for their judgments in doing so to be criticized and second-guessed in the cases that turn badly.
Indeed, in the trial of this case, the Court heard from multiple well-credentialed and extensively experienced medical experts who expressed widely divergent opinions either as to whether the labor of Jamie Trowbridge was progressing in a normal manner, with every expectation for the arrival of a healthy new baby, or whether that delivery was a runaway train headed for a disastrous crash unless a medical provider took notice and applied the brakes.
And, as is standard grist in the mill of a lawsuit such as this, medical treatises and journal articles are put forward as evidence to bulwark or erode the propriety of the doctor's acts, and sometimes--as was found in this case with the evidence of the work of the ACOG*fn3 committee on standards for the interpretation of FHR strips--to frame the glossary of the medical arts involved.
In such a trial setting, it is not surprising that the respective cases of the Plaintiffs and the Government--presented and argued as they were by lawyers practicing in the best measures of their craft--would be difficult to reconcile and difficult to decide upon. Each side felt strongly about the respective strengths of their positions, yet, like imperfect veneers on a dining table, a repeated viewing of the same spaces of testimony and exhibits left room for closer study and glimpses of both solid craft and of imperfection.
Additionally, this case was disputed upon more than whether or not Dr. Ogden had failed his obligations under the community's expectations for his care in August of 2004. It also was strenuously contested on whether or not his failure of care--if any such failure existed--had any causal connection under the requirements of Idaho law to the hardships now faced by J.N.T. and her parents as a result of the cerebral palsy which afflicts J.N.T.
Ultimately, however, after a thorough and careful consideration of the trial record, with an assessment of and conclusions about credibility of witnesses and the relative persuasive measures of particular witnesses and exhibits, the Court concludes that the evidence and testimony presented at trial was sufficient to establish a standard of care breached by Dr. Ogden. Plaintiffs, however, failed to establish by a preponderance of the evidence the additional element of causation.The Court's opinion describing those decisions is set out in more detail in this section and in the Findings of Fact and Conclusions of Law set forth below.
A. Medical Texts, Articles, and Terminology
Both parties relied on articles and bulletins from the American College of Obstetrics & Gynecology ("ACOG"). ACOG's practice guidelines, set forth in Technical Bulletins, are cited throughout this decision where the reference is supported by expert testimony.
Additionally, both parties and their experts generally agreed that the Williams Obstetrics textbook and the Fetal Heart Rate Monitoring text written by Freeman, Garite, & Nageotte ("Freeman & Garite") are useful books setting forth the general principles involved in this case. (Depp) (commenting that Freeman & Garite is a "very good book," and agreeing that Williams is a "commonly used" text, but largely a "protocol book" that does not set the standard of care); (Hall, Day 2). The parties stipulated to admit into evidence the following texts as generally reliable authorities: Obstetrics, Normal and Problem Pregnancies, 2002, by Steven G. Gabbe, Jennifer R. Niebyl, and Joe Leigh Simpson ("Gabbe") (Ex. 85); Danforth's Obstetrics and Gynecology ("Danforth") 2003 (Ex. 88); Danforth (unknown year) (Ex. 5026); and Williams Obstetrics 2001 (Ex. 87). Accordingly, the Court also has relied on these authorities.
The evidence in this case was heavily weighted with medical definitions. The Court has used definitions drawn from the testimony and from the sources described above. In addition, the medical apparatus most directly addressed by the evidence in this case is the fetal heart monitoring machine. This machine, which produces the FHR strip, or tracing, has two probes. One monitors the fetal heart rate and the other monitors uterine activity. The information obtained by the probes is recorded to the machine and displayed in the FHR strip. (Ogden testimony).
The monitoring of uterine activity results in a chart of contractions. Tachysystole, a term of frequent use by the witnesses in this case, refers to a circumstance where the mother is experiencing more than five contractions per ten minute period, averaged over thirty minutes. (Depp; Hall). The Plaintiffs' standard of care expert witness also referred to tachysystole as, essentially, synonymous with hyperstimulation. (Hall testimony). Dr. Ogden defined hyperstimulation as tachysystole in the presence of a non-reassuring FHR, while the standard of care expert witness who testified in the Government's case defined hyperstimulation as tachysystole combined with late decelerations (Depp).
Hypertonus refers to an aberration in the muscle tone of the uterus in the time between contractions. (Hall direct testimony). Normal resting pressure is about 15 to 20 millimeters of mercury; a pressure above that level is considered abnormal and referred to as hypertonus. (Id.)
The "strip" or "tracing" produced by the monitor also contains information about the fetal heart rate. During labor, the monitoring of fetal heart rate is a window into the well-being of the fetus. A reactive or reassuring FHR strip is one with a normal baseline, moderate variability, and accelerations. (Hall testimony); see also Freeman & Garite, Fig. 6.33 (accelerations). The baseline is the fetus's predominate heart rate in a ten minute period going horizontally across a strip between accelerations on top and decelerations on bottom. (Depp). Variability refers to the "waviness" of the FHR tracing, produced by the beat-to-beat irregularity (or variation) caused by the normal variance in intervals between consecutive cardiac cycles. Freeman & Garite, p. 65-66 (Ex. 5020); (Depp direct testimony). Moderate variability is defined as 6 to 25 beats per minute. (Depp; Hall). As a general statement, variability is reassuring of a normal labor process. A moderate amount of variability reflects that the fetus's oxygenation is normal. (Depp).
Variable decelerations are abrupt, visually apparent decreases in FHR below the baseline of 15 beats per minute or more, with a duration of 15 seconds or more but less than two minutes. Definitions of FHR Patterns (Ex. 5004); Hall testimony. Variable decelerations are considered nonreassuring only when they become persistent, progressively deeper, and longer lasting, or if they have a persistently slow return to baseline. ACOG Technical Bulletin, p. 457 (Ex. 5021); (Hall testimony) (generally agreeing with the definitions set forth in this ACOG Bulletin); Freeman & Garite, Fig. 6.9 (late deceleration). Occasional or intermittent late decelerations are not uncommon during labor, but when they become persistent they are considered nonreassuring, regardless of the depth. ACOG Technical Bulletin, p. 457 (Ex. 5021).
Significantly, in the context of the factual record of this case, hypoxia and acidosis can be a cause of decreased fetal heart rate variability. Freeman & Garite, p. 66 (Ex. 5020). Hypoxemia refers to the condition of decreased oxygen in the blood, while hypoxia is the condition of a decreased level of oxygen in tissue. ACOG Technical Bulletin, p. 454 (Ex. 5021); (Cantor direct testimony; Hall direct testimony). Ischemia refers to diminished blood circulation or flow to the organs of the body. (Cantor cross-exam; Hall direct).
Acidosis describes an increased concentration of hydrogen ions in tissue. Asphyxia refers to the combination of hypoxia with metabolic acidosis. ACOG Technical Bulletin, p. 454 (Ex. 5021). Metabolic acidosis develops when the fetus does not get enough oxygen, leading to a build up of lactic acid. (Depp direct testimony).
Metabolic acidosis can be identified by pH levels in the blood. When a fetus loses normal oxygenation and develops hypoxia, acidosis, and injury, the base excess goes up and pH goes down. (Depp direct). Base deficit (also referred to as base excess) is slowly corrected. Normal pH for a fetus is defined by a curve that goes down to about 7.05 on the bottom side and up to 7.4 on the top, and the average is somewhere in the middle. (Depp). A pH of less than seven reflects an increasing risk of central nervous system injury as a result of hypoxia. (Depp).
Depletion of reserves refers to that condition, in a fetus, where metabolic acidosis has developed, and results in the fetus being unable to drive its heart rate down or back up promptly. (Depp testimony, p. 157).
A normal fetal heart rate is between 110 and 160 beats per minute. Anything above 160 reflects tachycardia and anything below 110 is bradycardia. (Depp). To determine a fetus's baseline heart rate, physicians look at the predominant heart rate over a continuous 10 minute period of time. (Depp; Hall).
Chorioamnionitis is an infection of the placenta and amniotic fluid around the baby. (Hall testimony). Such a condition can cause a fever in the mother. In turn, a maternal fever generally increases a fetal heart rate by ten beats per minute for every Fahrenheit degree elevation of the mother's temperature. (Depp direct).
When the umbilical cord becomes wrapped around the neck of the fetus, such as occurred with J.N.T., the condition is referred to as a "nuchal cord". The fetus relies on the umbilical cord to supply oxygen. However, the vein in the umbilical cord is easily compressed. When a fetus has a nuchal cord, contractions constrict the vessels inside the umbilical cord and the oxygen supply to the fetus is diminished. (Cantor testimony).
B. Summary of Witnesses' Testimony, Opinions, & Credibility
Dr. Ogden, the family practice physician who was in charge of Jamie Trowbridge's labor and delivery, testified that he did not observe anything on the FHR strip that caused him to believe the fetal tachycardia was a sign of hypoxia. He stated that he observed good variability and accelerations, and he did not observe any late decelerations or significant variable decelerations. He attributed the tachycardia to fever and chorioamnionitis, both known causes of tachycardia. However, Dr. Ogden also testified that he did not appreciate the elevated uterine resting tone or factor it into his decision-making in this case, even though he knew that the resting tone could be significant in general and that the hospital's Pitocin protocol for nurses specifically mentions it.
Dr. Donald Smith, the consulting ob/gyn on the Trowbridge case, testified that he made clinical notes at the time or close to the time of the events and progress of the labor of which he was aware. See Ex. 5000, p. 250-59. He said that as of the time of his trial testimony he did not have an independent memory of the events of the labor; however, he said that he always looks at the FHR strip when dictating his case notes, so he assumed he would have followed this practice for Jamie Trowbridge's delivery. His case notes report that the FHR was around 120, and there was good variability as Mrs. Trowbridge progressed through the day. His notes identify a shift in the FHR baseline up to the 150's and that Mrs. Trowbridge became febrile in the evening, with a shift of FHR to the 180's associated with ...