IN THE SUPREME COURT OF IOWA No. 12–0302
Filed May 9, 2014
ALAN ASHER and LARYSA ASHER, as Parents and Next Friends of ALEXANDRA ASHER, a minor, and ALAN ASHER and LARYSA ASHER, Individually,
Appellees,
vs.
OB-GYN SPECIALISTS, P.C., and ANTHONY A. ONUIGBO, M.D.,
Appellants.
Appeal from the Iowa District Court for Black Hawk County,
Thomas N. Bower, Judge.
Defendants in a medical negligence action appeal a jury verdict.
AFFIRMED.
David L. Baker, Cedar Rapids, and James A. Gerk and Christine L.
Conover of Simmons Perrine Moyer Berman PLC, Cedar Rapids, for
Mark McCormick of Belin McCormick, P.C., Des Moines, and
H. Daniel Holm Jr., Max E. Kirk, and Eashaan Vajpeyi of Ball, Kirk &
Holm, P.C., Waterloo, for appellees. 2
APPEL, Justice.
In this professional negligence action, we consider whether the
district court committed reversible error by providing the jury with a
causation instruction based upon the Restatement (Second) of Torts
rather than an instruction based upon the Restatement (Third) of Torts,
as adopted by this court in Thompson v. Kaczinski, 774 N.W.2d 829, 839
(Iowa 2009). We also consider whether substantial evidence supported
submission of two specifications of negligence to the jury, one based on a
physician’s use of a vacuum extractor during the delivery of a baby and another based on the physician’s failure to keep adequate documentation
of the labor and delivery process.
For the reasons expressed below, we conclude that although the
district court should have submitted a causation instruction based upon
the Restatement (Third) of Torts and Thompson, the error was harmless
under the facts and circumstances of this case. We further conclude
substantial evidence supported submission of the two challenged
specifications of negligence to the jury.
I. Factual Background and Proceedings.
A. Overview of Proceedings. Larysa Asher was admitted to
Covenant Medical Center (Covenant) in Waterloo for the delivery of a
baby. The physician providing delivery services at Covenant was
Dr. Anthony A. Onuigbo. Unfortunately, the baby was born with a
brachial plexus injury and broken clavicle. Asher and her husband filed
an action individually and as parents and next friends of their minor
child, asserting Onuigbo was negligent in connection with the delivery of
the baby.1
1We will refer to the Ashers jointly as “Asher.” 3
After substantial discovery and a two-week trial, the district court
instructed the jury. Instruction No. 12 asserted Asher had to prove
Onuigbo was negligent in at least one of the following ways:
A. In failing to document the progress of descent during the second stage of Larysa Asher’s labor;
B. Using a [vacuum extractor] to assist in the delivery of [the baby];
C. In failing to perform a cesarean section on Larysa Asher for the purpose of delivering [the baby];
D. In failing to recognize and diagnose [the baby’s] shoulder dystocia;
E. In failing to perform proper maneuvers to deliver [the baby] after she developed shoulder dystocia;
F. By applying excessive lateral and/or rotational traction to [the baby’s] head in an effort to deliver her.
Instruction No. 12 further informed the jury it could award damages only
if it found Onuigbo’s negligence was a proximate cause of the damage.
Onuigbo objected to the instruction, arguing Asher failed to present
substantial evidence of a causal link between any failure to document
and the alleged harm or the use of the vacuum extractor and the alleged harm.
The district court also instructed the parties on causation.
Instruction No. 13 instructed the jury as follows:
The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damages and when the damage would not have happened except for the conduct.
“Substantial” means the party’s conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause. 4
Onuigbo objected to Instruction No. 13 on the ground that while it would
have been proper in the past, Thompson substantially altered the law of
causation and the instruction did not reflect the current state of the law.
The jury found in favor of Asher and awarded substantial
damages. After the district court denied Onuigbo’s posttrial motions, he
appealed. On appeal, Onuigbo claims Instruction No. 13 inaccurately
reflected the current state of the law in light of Thompson and, as a
result, the judgment must be vacated and the case remanded for a new
trial. Onuigbo also claims there was insufficient evidence to support a finding of negligence based upon the failure to document the progress of
the fetus’s descent through the birth canal during the second stage of
labor or the use of the vacuum extractor to assist in the delivery.
Onuigbo argues that because the jury returned a general verdict and it is
not possible to determine whether the verdict was based upon a valid
theory of negligence, the verdict cannot stand.
B. Overview of Trial Record. Because we are reviewing whether
substantial evidence supported submission of certain instructions to the
jury, we view the evidence in the light most favorable to the party
advocating submission of the instructions. See Hoekstra v. Farm Bureau
Mut. Ins. Co., 382 N.W.2d 100, 107–08 (Iowa 1986). Viewing the facts in
the light most favorable to Asher, a reasonable jury could have found the
facts as follows.
Larysa began experiencing contractions on the morning of
November 7, 2006. Her husband drove her to Covenant, where they
arrived at approximately 7:05 a.m. At 10:00 p.m., Larysa’s medical chart
indicates she was completely dilated, meaning the first stage of her labor was complete. Though there had been some documentation of the fetus’s
station, or position, in the birth canal prior to this time, as recently as 5
8:00 p.m., there was no documentation of the fetus’s station at 10:00
p.m. From this point until the birth of the baby at 2:26 a.m., there was
no further documentation of the fetus’s station, although either Onuigbo
or another member of the medical team performed vaginal exams at
11:54 p.m. and 1:47 a.m.
Larysa experienced a protraction disorder during the first and
second stages of labor. A protraction disorder occurs when the fetus’s
descent through the birth canal proceeds at an unusually slow rate. The
severe protraction of the second stage of labor indicated the fetus was having trouble moving past the pelvic bone. During the second stage of
labor, Onuigbo breached the standard of care by not performing enough
vaginal examinations and by not documenting the progress of the labor
and the station of the fetus in the birth canal.
The protracted labor and lack of adequate progress posed a risk of
harm to the baby. Onuigbo did not discuss the risk of harm with his
patient. Onuigbo then used a vacuum extractor to help draw the baby
into position for delivery. The baby’s shoulder became lodged against
Larysa’s pubic bone, a condition known as shoulder dystocia. Instead of
performing maneuvers to free the lodged shoulder, Onuigbo applied
lateral traction, causing injury to the baby’s brachial plexus nerves.
II. Standard of Review.
“We review a claim that the district court gave an instruction not
supported by the evidence for correction of errors at law.” Pavone v.
Kirke, 801 N.W.2d 477, 494 (Iowa 2011). “ ‘We review the related claim
that the trial court should have given the defendant’s requested
instructions for an abuse of discretion.’ ” State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010) (quoting Summy v. City of Des Moines, 708 N.W.2d
333, 340 (Iowa 2006)). The trial court commits legal error “when it 6
materially misstates the law.” Anderson v. Webster City Cmty. Sch. Dist.,
620 N.W.2d 263, 265 (Iowa 2000). An error in giving an instruction
“does not warrant reversal unless the error is prejudicial to a party.”
Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). “Errors in jury
instructions are presumed prejudicial unless ‘the record affirmatively
establishes there was no prejudice.’ ” State v. Murray, 796 N.W.2d 907,
908 (Iowa 2011) (quoting State v. Hanes, 790 N.W.2d 545, 551 (Iowa
2010)). “ ‘When the error is not of constitutional magnitude, the test of
prejudice is whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has
suffered a miscarriage of justice.’ ” Marin, 788 N.W.2d at 836 (quoting
State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985)).
When a jury returns a verdict based upon a specification of
negligence, there must be substantial evidence to support the verdict.
See Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 822 (Iowa
1992) (“The submission of instructions upon issues that have no support
in the evidence is error.”); see also City of Cedar Falls v. Cedar Falls
Cmty. Sch. Dist., 617 N.W.2d 11, 16 (Iowa 2000) (finding substantial
evidence supported findings of negligence under multiple specifications).
Evidence is substantial enough to support a specification of negligence
where “a reasonable mind would accept it as adequate to reach a
conclusion.” Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). In
considering whether the instruction is supported by substantial
evidence, we give the evidence the most favorable construction it will
bear in favor of supporting the instruction. See Hoekstra, 382 N.W.2d at
107–08. Where the district court submits to the jury a specification of negligence not supported by the evidence and the jury returns a general
verdict, reversal is required. Nichols v. Westfield Indus., Ltd., 380 N.W.2d 7
392, 396–97 (Iowa 1985); Childers v. McGee, 306 N.W.2d 778, 780 (Iowa
1981).
III. Discussion of the Causation Instruction.
A. Positions of the Parties. Onuigbo maintains Instruction
No. 13 was erroneous and should not have been given. Onuigbo’s
argument is rooted in Thompson. In Thompson, we noted the formulation
of proximate cause by way of a substantial-factor test in prior law “ha[d]
been the source of significant uncertainty and confusion.” 774 N.W.2d
at 836. As a result, we adopted the standard as articulated by the drafters of the Restatement (Third) of Torts. Id. at 839. Under the
Restatement (Third) of Torts, factual cause and scope of liability (a more
nuanced term for what was previously known as proximate cause) are
addressed separately. Id. at 837; see also Restatement (Third) of Torts:
Liab. for Physical & Emotional Harm, ch. 6, Special Note on Proximate
Cause, at 492 (2010) [hereinafter Restatement (Third)]. Compare
Restatement (Third), ch. 5, at 346–491 (factual cause), with id. ch. 6, at
492–604 (scope of liability). As a result, Onuigbo contends the district
court misstated the law when it gave a causation instruction based on
the substantial-factor test. Onuigbo notes the district court believed the
approach to scope of liability and factual cause of the Restatement
(Third) did not apply in a medical malpractice case, a belief Onuigbo
argues is incorrect.
Asher recognizes this court adopted the approach to causation of
the Restatement (Third) in Thompson and agrees with Onuigbo that it
should apply in medical malpractice cases. Asher further agrees that
under the Restatement (Third), causation analysis is now separated into scope of liability and factual cause. Asher maintains, however, the
question of whether certain harm is within an alleged tortfeasor’s scope 8
of liability is often established as a matter of law, thus avoiding the need
to instruct the jury on scope of liability. Asher cites comment a to
section 29 of the Restatement (Third), which provides:
Ordinarily, the plaintiff’s harm is self-evidently within the defendant’s scope of liability and requires no further attention. Thus, scope of liability functions as a limitation on liability in a select group of cases, operating more like an affirmative defense, although formally it is not one.
Restatement (Third) § 29 cmt. a, at 493–94. Asher also points to a
committee comment to instruction 700.3A of the Iowa State Bar
Association Civil Jury Instructions on scope of liability, which states:
In most cases, scope of liability will not be in dispute or will be adjudicated by the court on a dispositive motion. This instruction should be given only if under the facts of the particular case scope of liability is a question for the jury.
Iowa State Bar Ass’n, Iowa Civil Jury Instruction 700.3A cmt. (2012).
Asher maintains that in this case, scope of liability was not in
dispute and required no further attention. She notes that in order to
show the alleged harm was within the scope of liability, the harm must
arise from “the same general types of danger that the defendant should
have taken reasonable steps . . . to avoid.” See id. 700.3A. Asher further
notes that in making the determination of whether the harm was within
the scope of liability, the fact finder should consider whether “repetition
of [the] defendant’s conduct makes it more likely harm of the type
plaintiff claims to have suffered would happen to another.” Id.
Applying these standards, Asher argues Onuigbo’s scope of liability
was established as a matter of law. She notes the harm to the baby, a
brachial plexus injury, is among the harms that result from
mismanagement of the delivery of a baby. Asher further asserts that if the acts she alleged were to be repeated—such as failure to document 9
progress or use of the vacuum extractor—it is more likely the same harm
that occurred in this case would happen to other babies. Because scope
of liability under the Restatement (Third) was established as a matter of
law, Asher contends, the giving of an erroneous proximate cause
instruction was not a material error.
In the alternative, Asher argues that while Instruction No. 13 may
have been erroneously given, any error was harmless. Asher maintains
the substantial-factor instruction imposed an additional barrier to
liability no longer sanctioned by Iowa law. In other words, Asher claims the erroneous instruction was harmless because a jury that found the
substantial-factor test in Instruction No. 13 was satisfied would have
necessarily found that the harm was within Onuigbo’s scope of liability
under the Restatement (Third).
B. Analysis. In Thompson, this court considered the law of
causation in a negligence action involving physical harm. High winds
blew a disassembled trampoline across a yard and into a roadway, where
it came to rest. 774 N.W.2d at 831. Later that day, a motorist who
encountered the trampoline in the road was injured when he swerved to
avoid it and crashed into a ditch. Id. at 831–32.
We began by noting that a trial court instructing a jury on
causation in accordance with the Restatement (Second) of Torts would
instruct the jury that “ ‘[t]he actor’s negligent conduct is a legal cause of
harm to another if (a) his conduct is a substantial factor in bringing
about the harm, and (b) there is no rule of law relieving the actor from
liability.’ ” Id. at 836 (quoting Restatement (Second) of Torts § 431, at
428 (1965) [hereinafter Restatement (Second)]). We then noted this traditional approach caused “significant uncertainty and confusion.” Id.;
see also Gerst v. Marshall, 549 N.W.2d 810, 816–18 (Iowa 1996) 10
(chronicling this court’s inconsistent approach to proximate causation).
To eliminate the uncertainty and confusion, we observed that the
drafters of the Restatement (Third) addressed factual cause and what
was formerly known as proximate cause (and now called scope of
liability) separately. Thompson, 774 N.W.2d at 837.
Although sometimes labeled “medical malpractice” actions, a claim
that a professional has failed to meet the applicable standard of care is
essentially a negligence cause of action. See Kemin Indus., Inc. v. KPMG
Peat Markwick LLP, 578 N.W.2d 212, 221 (Iowa 1998). Nothing in the Restatement (Third) suggests its approach to factual causation and scope
of liability does not apply to a claim of medical negligence. The
introduction to the Restatement (Third) indicates it generally covers
negligence actions. See Restatement (Third) Intro., at 1. Restatement
(Third) section 26, comment n discusses the applicability of the loss of
chance doctrine in medical malpractice actions. Id. § 26 cmt. n, at 356–
57. Restatement (Third) section 35, comment a uses an example of a
negligent medical professional in discussing the medical professional’s
scope of liability. Id. § 35 cmt. a, illus. 1, at 592–93. Further, we can
discern no reason to except medical negligence actions from the factual
cause and scope of liability approach of the Restatement (Third). As a
result, we conclude the district court erred in submitting Instruction
No. 13 to the jury because it instructed the jury based upon the
substantial-factor approach of the Restatement (Second).
Nonetheless, we conclude any error in submitting the instruction
was harmless. We agree with Asher that in most cases the alleged
tortfeasor’s scope of liability will not be an issue and this case provides a good example of that. A brachial plexus injury is the kind of harm one
might expect to be more likely to occur if a delivering physician, like 11
Onuigbo, was negligent in the manner alleged by Asher. But a
reasonable jury could find repetition of Onuigbo’s conduct makes it more
likely the type of harm Asher claims to have suffered would happen to
another. Thus, Onuigbo’s scope of liability was established as a matter
of law. Of course, whether the alleged negligence is a factual cause of
the harm remains an open question for the jury to decide.
In any event, the error in this case was not prejudicial. In
Thompson, we noted one point of confusion caused by stating the
concept of proximate cause through a substantial-factor test is that a juror might misunderstand proximate cause to mean the singular cause
nearest in time or location to the injury. 774 N.W.2d at 837;
Restatement (Third) § 29 cmt. b, at 494. Thus, a juror could conclude
the act of negligence must be in the same location as the harm, that
there might be only one legal cause of the injury, or that the cause must
be the last substantial factor in a chain. These factors tend to increase,
not decrease, barriers to liability. See Matsuyama v. Birnbaum, 890
N.E.2d 819, 842–43 (Mass. 2008) (concluding a requirement that the
plaintiff prove negligence was a substantial contributing factor in a death
arguably imposed a higher burden than requiring the plaintiff to prove
negligence reduced the chances of survival). This would effectively raise
the plaintiff’s burden by creating a more demanding scope-of-liability
standard. At the same time, a situation may be conceivable in which
alleged negligent conduct is a substantial factor in bringing about harm,
but nonetheless the harm is not within the actor’s scope of liability. In
that case, a substantial-factor instruction would effectively decrease the
plaintiff’s burden to show the conduct was within the actor’s scope of liability. 12
Here, we can easily conclude the erroneous substantial-factor
instruction created a more demanding instruction than the proper
Restatement (Third) scope-of-liability instruction. The brachial plexus
injury was established as a matter of law to be within Onuigbo’s scope of
liability. Therefore, submission of any instruction on causation to the
jury beyond one pertaining only to factual causation increased Asher’s
burden by making it more difficult for her to obtain a favorable verdict.
Because the jury found in favor of Asher notwithstanding her increased
burden, the error was not prejudicial and does not constitute reversible error. See Hagenow v. Schmidt, 842 N.W.2d 661, 677 (Iowa 2014)
(concluding error was harmless where the defendant prevailed on the
sudden-emergency defense and the district court’s wording of the
sudden-emergency instruction made it more difficult to prove the
defense).
IV. Substantial Evidence of Causation Regarding Use of the
Vacuum Extractor.
A. Positions of the Parties. Onuigbo claims Asher failed to
produce substantial evidence that his use of the vacuum extractor
caused the injury in this case. Onuigbo emphasizes that even Asher’s
experts testified the use of the vacuum extractor did not cause any injury
to the baby. Onuigbo points to expert testimony indicating that the
vacuum extractor was simply used to pull the baby’s head outside the
vulva and that the instrument itself did not cause injuries.
Asher responds that there was substantial evidence that Onuigbo’s
election to use the vacuum extractor increased the chance the baby
would develop shoulder dystocia. Further, Asher notes there is no legal requirement that Onuigbo’s use of the vacuum extractor directly cause
the injury or be the sole cause of the injuries. If Onuigbo had recognized 13
the shoulder dystocia caused by the vacuum extractor, Asher argues, he
could have performed maneuvers to free the shoulder from the pubic
bone. Instead, Asher points out, Onuigbo applied lateral traction to
deliver the baby, causing the brachial plexus injury.
B. Analysis. We agree with Onuigbo the use of the vacuum
extractor itself did not directly cause the injury to the baby. However, a
reasonable jury could conclude that using the vacuum extractor led to
the shoulder dystocia, that Onuigbo failed to diagnose the shoulder
dystocia, and that when Onuigbo subsequently applied traction to deliver the baby, the injury occurred. It is not necessary that an act of
negligence be the last link in the causal chain leading to injury to
establish factual causation. Under the Restatement (Third), “Conduct is
a factual cause of harm when the harm would not have occurred absent
the conduct.” Restatement (Third) § 26, at 346. Comment c to this
section elaborates on the principle, noting that there can be multiple
causes of injury in a chain of events. Id. § 26 cmt. c, at 347–48. We
have long held an alleged negligent act or omission must be the direct
instrumentality of harm. See, e.g., State v. Tribble, 790 N.W.2d 121, 127
& n.2 (Iowa 2010) (noting that when multiple causes are present, each
sufficient to cause the injury, each is a factual cause of the harm).
Asher’s experts testified the use of a vacuum extractor significantly
increased the risk of shoulder dystocia, which in turn led to the brachial
plexus injury when lateral traction was applied. Based on the Asher’s
expert testimony in this case, a reasonable jury could find Onuigbo’s use
of the vacuum extractor set in motion a series of events leading to the
brachial plexus injury. As a result, the district court did not err in submitting the specification of negligence based upon Onuigbo’s use of
the vacuum extractor. 14 V. Substantial Evidence of Causation on Failure to Document Progress of Labor. A. Positions of the Parties. Onuigbo contends the evidence was
insufficient to support a specification of negligence based upon his
failure to adequately document the progress of the labor. Onuigbo
asserts the reason for maintaining adequate documentation is to ensure
other physicians who might assume responsibility for the delivery have
an adequate and accurate history to rely upon. In this case, however,
Onuigbo was the only physician attending Larysa during her labor.
Further, Onuigbo claims the failure to document the baby’s station did
not cause anything except a less-documented chart. Onuigbo argues no
reasonable jury could conclude the failure to write information on pieces
of paper caused the brachial plexus injury.
Asher argues the evidence established Onuigbo’s failure to
document the progress of labor consistent with the standard of care.
Asher further claims that had the labor been properly documented, a
reasonable jury could conclude the injuries to the baby would not have
occurred. If Onuigbo had maintained proper documentation, Asher
asserts, Onuigbo would have recognized the protracted nature of each
stage of labor. Asher argues that in order to evaluate the risk of a
traumatic vaginal delivery, Onuigbo should have assessed and documented the fetus’s descent every hour during the second stage of
labor.
B. Analysis. Expert testimony is ordinarily required on causation
in medical negligence cases. See Doe v. Cent. Iowa Health Sys., 766
N.W.2d 787, 792 (Iowa 2009) (“The longstanding Iowa rule is that in a
tort action the necessity of expert testimony or the quality of necessary expert testimony determines whether substantial evidence supports the
submission of the causal relationship between the act of the wrongdoer 15
and the injury.”). There is, however, an exception to the general rule.
Expert medical testimony is not required on causation where an
untrained lay person would be qualified through ordinary knowledge and
experience to determine the issue. Id. at 793; see also Stickleman v.
Synhorst, 243 Iowa 872, 878–79, 52 N.W.2d 504, 508 (1952) (finding it to
be within the realm of common layperson knowledge that one can suffer
serious blood loss due to a puncture wound to the neck). Regardless of
whether causation requires an expert, causation cannot be established
through guesswork or speculation. See Boswell v. Kearns Garden Chapel Funeral Home, 227 Iowa 344, 346, 288 N.W. 402, 403 (1939). At the
same time, we recognize a probability or likelihood of a causal connection
is sufficient to generate a jury question. Hansen v. Cent. Iowa Hosp.
Corp., 686 N.W.2d 476, 485 (Iowa 2004).
In order to fully explore the causation issue, we will review the
expert testimony to understand the context in which the documentation
question arose. We then consider whether Asher offered sufficient
evidence on factual causation to allow a jury to find Onuigbo liable on
the failure-to-document specification. In the discussion, it will be
important to keep in mind the distinction between breach of duty and
causation. See Tyler v. Dworkin, 747 A.2d 111, 122 (Del. Super. Ct.)
(distinguishing in medical records context between breach of duty and
causation), aff’d, 741 A.2d 1028 (Del. 1999).
One of Asher’s experts, Dr. Paul Gatewood, testified that during
the first stage of labor (from the beginning of labor to complete dilation of
the cervix), the standard of care requires cervical dilation and the station
of the fetus in the birth canal be recorded at minimum every two hours. This latter measurement aids the obstetrician in tracking the descent of
the fetus through the birth canal. During the second stage of labor (from 16
complete dilation to birth), Gatewood testified, the station of the baby
must be documented hourly. In particular, Gatewood opined Onuigbo’s
failure to document the station of the fetus during the second stage of
labor violated the standard of care. According to Gatewood,
documentation allows “an obstetrician to come in hours later, take one
look at the curve, and know how the labor has gone.” Gatewood testified
that if an obstetrician has multiple patients in labor, it may be difficult to
recall the progress of each patient’s labor without documentation.
According to Gatewood,
If he’s got two or three other people in labor, is he gonna necessarily remember what every exam was that he did on each patient that’s in labor at the same time? Probably not. So, it’s the documentation that allows the physician to refocus every time he comes in to evaluate the patient and make a determination if it’s a normal labor.
Gatewood further noted regular documentation of the fetus’s descent
through the birth canal in the second stage of labor “would increase
one’s level of awareness and alert the doctor that we may have a
problem.”
Gatewood further testified Onuigbo breached this standard of care
because there was no documentation of the fetus’s station between 8:00
p.m. and the time the baby was born, 2:26 a.m. the next day. He further
noted the first stage of labor ended, at the latest, by 10:00 p.m.
According to Gatewood, this meant there was no documentation of the
fetus’s station during approximately the final six and one-half hours of
the labor, which included at least an approximately four-and-one-half-
hour-long second stage. 17
In addition, Gatewood testified ninety-five percent of women in
labor reach the end of the active phase of the first stage of labor2 within
five hours and, because the active phase of her labor began at 9:30 a.m.,
the active phase of Asher’s first stage lasted twelve and one-half hours,
which included two protractions, one of which occurred after Asher had
been administered Pitocin, a drug that increases the power of
contractions.3 Gatewood described the protraction of the first stage as
“significant.” He further testified that because the length of the first
stage indicated a problem beyond the power of contractions pushing the fetus through the birth canal, there was a further complication slowing
the labor.
Gatewood then testified the average length of the second stage of
labor for a nullipara, a woman who has never given birth before, who has
received an epidural, like Asher, is ninety minutes and that ninety-five
percent of nulliparas who receive epidurals deliver within three and one-
half hours of complete dilation. He then noted the second phase of
Asher’s labor lasted nearly four and one-half hours, which indicated a
third protraction.
Gatewood testified a protracted labor of this type indicates an
increased risk of shoulder dystocia and that an obstetrician faced with
the circumstances of Asher’s labor should be tuned in to what is causing
the protraction and that it might be a problem with the baby fitting
2Gatewood testified that the first stage of labor is broken into a latent and active stage. 3Gatewood testified obstetricians must constantly monitor power, which comes
from contractions; the passenger, which is the fetus; and the pelvis, which is the bony structure the fetus must pass through. Asher was administered Pitocin at 4:00 p.m., which according to Gatewood meant she had experienced a protraction disorder prior to that time. Gatewood further testified the fact the first stage did not end until 10:00 p.m. indicated a second protraction during the first stage. 18
through the pelvis. He further testified that based on all of the facts and
circumstances of Asher’s labor, her baby should have been delivered via
a caesarian section. He testified that while it is possible a permanent
brachial plexus injury could have occured with a caesarian section
delivery, the risk was significantly reduced.
Asher’s other expert, Dr. James Rice, offered substantially similar
testimony as to the standard of care in documenting the labor. Like
Gatewood, Rice opined Asher violated that standard of care and, based
on the facts and circumstances surrounding Asher’s labor, her baby should have been delivered via a caesarian section.
Onuigbo also offered expert testimony and testified himself as to
the standard of care and the facts and circumstances surrounding
Asher’s labor. In sum, Onuigbo and his experts downplayed the length
of the labor and rate of progress of fetal descent and emphasized fetal
monitoring and the need to avoid a caesarian section whenever possible.
However, the jury was free to assign no weight to the testimony of
Onuigbo and his experts and disregard it entirely. See, e.g., Top of Iowa
Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 468 (Iowa 2000) (noting a
jury may “discount some testimony and give more credit to other
testimony”); Mensink v. Am. Grain, 564 N.W.2d 376, 382 (Iowa 1997)
(noting a jury is free to disregard expert testimony).
We conclude, based on the record, that Asher presented sufficient
evidence to reach a jury on the question of whether the failure to
document caused the injury. A reasonable jury could infer from the
evidence that Onuigbo was inattentive to the progress of the baby and
that his failure to regularly document the progress was a cause of the baby’s injuries. As Gatewood testified, the lack of information available
to Onuigbo increased the risk of harm to the baby, thereby providing 19
expert support for causation. In evaluating expert support for causation,
we do not require magic words, and the evidence on causation need not
be conclusive but must only show reasonable probability. See Soreide v.
Vilas & Co., 247 Iowa 1139, 1143, 78 N.W.2d 41, 43–44 (1956); Ramberg
v. Morgan, 209 Iowa 474, 482, 218 N.W.2d 492, 497 (1928). A
reasonable jury could infer from the trial testimony that had Onuigbo
ensured that the baby’s station was duly recorded hourly in the chart, he
would have realized that he faced either an arrest of labor or a severe
protraction disorder requiring an exploration of options other than vaginal delivery.
VI. Conclusion.
For the above reasons, we conclude that although the district court
gave an erroneous causation instruction based on the abandoned
substantial-factor test instead of on the scope of Onuigbo’s liability, the
error was not prejudicial and does not require reversal of the jury’s
verdict. We find substantial evidence supporting a finding that
Onuigbo’s use of the vacuum extractor was a factual cause of Asher’s
injuries and conclude Asher engendered a jury question on the causal
relationship between Onuigbo’s failure to adequately document the
progress of the labor and the claimed injury and damages. As a result,
the judgment is affirmed.
All justices concur except Mansfield and Zager, JJ., who take no
part.