Boyd v. Hershey Medical Center

41 Pa. D. & C.4th 557, 1999 Pa. Dist. & Cnty. Dec. LEXIS 204
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedApril 9, 1999
Docketno. 2386 S 1993
StatusPublished

This text of 41 Pa. D. & C.4th 557 (Boyd v. Hershey Medical Center) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyd v. Hershey Medical Center, 41 Pa. D. & C.4th 557, 1999 Pa. Dist. & Cnty. Dec. LEXIS 204 (Pa. Super. Ct. 1999).

Opinion

TURGEON, J.,

Plaintiff-minor Stevie Baum, through her parents, Terri Boyd and Matthew Baum, claimed defendants Peter Cherouny M.D. and Barbara DiPietro-Steele M.D. were negligent during [559]*559Stevie Baum’s birth May 8, 1988. Dr. Cherouny was Terri Boyd’s attending obstetrician and Dr. DiPietroSteele a first-year obstetrical resident. They asserted defendant-hospital, Milton S. Hershey Medical Center, was vicariously liable.

On November 12, 1998, following an eight-day trial, the jury returned a defense verdict, having found none of the defendants negligent. Plaintiffs filed a motion for post-trial relief and supplemental motion seeking a new trial, which I denied by March 23, 1999 order. This opinion is written in support of that decision.

Plaintiffs raised four issues in their post-trial motions:

“(1) Notes taken by a juror and available to the jury during deliberations constitutes reversible error.
“(2) The court erred in failing to instruct the jury that defendants were held to a dual standard of care; specifically, that physicians are held to the same degree of care as would a reasonable person under the circumstances.
“(3) The jury’s verdict was against the weight of the evidence.
“(4) The court erred in not requiring defendants to adhere to the trial schedule agreed to by the parties.”

FACTS

Plaintiffs claimed Drs. Cherouny and DiPietro-Steele allowed Terri Boyd’s second stage labor to extend too long without performing a cesarean section. As a result, Stevie Baum allegedly suffered perinatal asphyxia (oxygen deprivation) causing hypoxic ischemic brain damage resulting in Stevie Baum’s cerebral palsy.

In September 1987, 31-year-old Terri Boyd began to receive prenatal care at Hershey Medical Center. Her pregnancy was considered high risk due to her [560]*560history of ulcerative colitis and a 1981 early labor which resulted in the premature delivery, at 31 weeks, of her son Devlin who is also afflicted with cerebral palsy. Nevertheless, her pregnancy proceeded without complication and her colitis was controlled with medication. An early amniocentesis demonstrated a normal female fetus and a 31-week ultrasound showed fetal size around the 50th percentile.

On May 7,1988 at 11 a.m., mother experienced initial contractions and was admitted to the hospital around 2:30 a.m. the following morning, Her water broke at 5 a.m., at which time the amniotic fluid was clear. At 10:20 a.m., the baby experienced a two-minute episode of slow fetal heart rate (bradycardia) of 95-98 beats per minute. A second episode occurred at 2:30 p.m. during which her heart rate was 80-90. However, it returned to 130 with a change in fetal position. Normal fetal heart rate is 120-160 beats per minute. Fetal scalp pH’s, which measure fetal oxygenation, were taken at 9 a.m. (pH 7.23) and 3:25 p.m. (pH 7.33) and demonstrated fetal well-being.

At 4:15 p.m., the baby had not proceeded beyond zero station. At 5:10 p.m., mother reached full cervical dilation, marking the onset of second stage labor during which descent of the fetal head should occur. The second stage of labor in a woman who has previously delivered vaginally, normally lasts one to two hours. During the second stage, fetal heart rate monitoring demonstrated episodes of bradycardia accompanied by late/variable decelerations. There was very little progression of the fetus through the birth canal during this stage.

At 8 p.m., mother was taken to the delivery room in an effort to expedite delivery. At that time, the baby had reached only plus one station down the birth canal. By 8:40, she was still at plus one station and Dr. Cher[561]*561ouny became concerned the baby may not have sufficient reserves for delivery, although he believed the baby was tolerating delivery and saw no need for c-section preparation. At approximately 8:44 or 8:45 p.m., Dr. Cherouny attempted a manual rotation of the fetus, following which there was an immediate sudden drop in fetal heart rate from a 120 baseline to 60-80 beats per minute, from which the fetus did not recover. Fetal heart rate remained between 60-80 for approximately 20 minutes, and then dropped further to 40-50 for approximately five minutes. Also, immediately following the manual rotation of the fetus, thick meconium was detected in the amniotic fluid. Both the sudden drop in the baby’s heart rate and the presence of thick meconium concerned Dr. Cherouny.

Dr. Cherouny attempted delivery by forceps immediately after the manual rotation. Defendants testified the baby was at plus two station at this time, indicating a low forceps delivery. Plaintiffs disputed this fact, arguing the baby was still at plus one station, warranting a high forceps delivery. Nevertheless, this procedure was abandoned after both Dr. Cherouny and chief obstetrical resident Dr. Mary Danca were unable to lock the forceps around the baby’s head. At 8:50 p.m., Dr. Cherouny attempted delivery by vacuum extractor, which initially failed. At 9 p.m., Dr. Cherouny called for a “stat” c-section. While c-section preparations were underway, delivery was managed with the vacuum extractor at 9:09 p.m., three hours and 54 minutes after commencement of second stage labor. The baby was born small for gestational age, under the 10th percentile.

Upon delivery, the baby was floppy and unresponsive, not breathing, with a heart rate in the 40s. Attending pediatrician Dr. Abba Cargan removed meconium from her esophagus and intubated her 30 seconds after birth. [562]*562Shortly thereafter, she was resuscitated after her heart rate could not be detected. Within two minutes, her heart rate went up to 150. Her Apgar scores were one at one minute and three at five minutes. Dr. Cargan’s neurological exam in delivery room was abnormal. Attending neonatal intensive care unit pediatrician Keith Marks M.D. evaluated the baby the morning of May 9, 1988. He diagnosed her as having incurred perinatal asphyxia, the symptoms of which included global signs of hypoxic-ischemic insult. He noted her low heart rate prior to delivery, presence of meconium, failure to breathe at delivery, need for resuscitation, lack of spontaneous ventilation until 20 minutes following birth, hypotonic condition, seizure development and oliguria (not passing urine).

Dr. Richard Naeye examined mother’s placenta May 9, 1999. He found it growth-retarded — below the 10th percentile in weight for a 41-week pregnancy. In addition, he found the presence of stage 1 acute chorioamnionitis, an area of placental infection. The umbilical cord, which had remained attached to the placenta, was only 18.5 centimeters long, about one-half normal length, although cord diameter was above average.

LEGAL DISCUSSION

Juror Note-Taking

Following the verdict, plaintiffs learned the jury foreman had taken notes during the course of the trial and had taken them into the jury room during deliberations. In an affidavit, the foreman stated that he asked a person he thought to be a court bailiff whether note-taking outside the courtroom was permissible and was told that it was. He stated he wrote down his recollection of the testimony during lunch breaks and at home after [563]*563the end of each day. He did not take any notes during the trial in the courtroom. He stated that during deliberations, he referred to and commented from his notes.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carter v. United States Steel Corp.
604 A.2d 1010 (Supreme Court of Pennsylvania, 1992)
Petrasovits v. Kleiner
719 A.2d 799 (Superior Court of Pennsylvania, 1998)
Pittsburgh National Bank v. Mutual Life Insurance Co. of New York
425 A.2d 383 (Supreme Court of Pennsylvania, 1981)
Gottfried v. American Can Co.
489 A.2d 222 (Supreme Court of Pennsylvania, 1985)
Thompson v. City of Philadelphia
493 A.2d 669 (Supreme Court of Pennsylvania, 1985)
Boring v. LaMarca
646 A.2d 1199 (Superior Court of Pennsylvania, 1994)
Commonwealth v. Zlatovich
269 A.2d 469 (Supreme Court of Pennsylvania, 1970)
Fisher v. Strader
160 A.2d 203 (Supreme Court of Pennsylvania, 1960)
Commonwealth v. Pierce
309 A.2d 371 (Supreme Court of Pennsylvania, 1973)
Friedman v. Ralph Brothers, Inc.
171 A. 900 (Supreme Court of Pennsylvania, 1934)
Thornton v. Weaber
112 A.2d 344 (Supreme Court of Pennsylvania, 1955)
Farelli v. Marko
502 A.2d 1293 (Superior Court of Pennsylvania, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
41 Pa. D. & C.4th 557, 1999 Pa. Dist. & Cnty. Dec. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-hershey-medical-center-pactcompldauphi-1999.