Moran v. Dean

416 So. 2d 351
CourtLouisiana Court of Appeal
DecidedJune 8, 1982
Docket12986
StatusPublished
Cited by3 cases

This text of 416 So. 2d 351 (Moran v. Dean) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moran v. Dean, 416 So. 2d 351 (La. Ct. App. 1982).

Opinion

416 So.2d 351 (1982)

Carolyn MORAN
v.
Odell DEAN, M.D., Anthony J. Hackett, Jr., M.D., and Flint-Goodridge Hospital of Dillard University.

No. 12986.

Court of Appeal of Louisiana, Fourth Circuit.

June 8, 1982.

*352 Margaret A. LeBlanc, New Orleans, for plaintiff-appellant.

Wiedemann & Fransen, Edmund W. Golden, New Orleans, for defendants-appellees.

Before GULOTTA, GARRISON and BARRY, JJ.

BARRY, Judge.

This appeal is from the dismissal of Carolyn Moran's medical malpractice lawsuit[1] arising out of the delivery and death of her newborn child. Defendants are Dr. Odell Dean, the physician that followed her during pregnancy, Dr. Anthony Hackett, who was on call for Dr. Dean, and Flint-Goodridge Hospital where the delivery took place. Our concern is a review of the Trial Judge's evaluation of conflicting expert testimony.

FACTUAL BACKGROUND

On Sunday afternoon June 16, 1974, this 21 year old plaintiff began having labor pains and attempted to contact Dr. Dean. During her pregnancy plaintiff had been seen only by Dr. Dean and told the child would be delivered at Methodist Hospital. Plaintiff did not know he was on vacation and was informed by Dr. Dean's answering service that Dr. Hackett was taking his calls and told to proceed to Flint-Goodridge Hospital.

At approximately 5:30 p. m. plaintiff was admitted to Flint-Goodridge. Upon reaching the obstetrics unit the nurse on duty, Edwina Morgan, a licensed practical nurse, took a brief history and recorded plaintiff's blood pressure, pulse, respiration and temperature. She was prepped, fetal heart tones taken, and her pains assessed, but was not examined to determine dilation of the cervix. At 6:15 the information was given to the supervisor who called the answering service. At 6:30 Dr. Hackett first called to inquire about plaintiff's condition, was given the above data, and at 6:35 prescribed 100 mg. of demerol and 20 mg. of largon. At 7:00 p. m. the nurse's notes indicate the *353 contractions subsided from moderate to mild and plaintiff was asleep. At 7:30 Dr. Hackett called and was told her condition. Plaintiff awoke at 9:15 with complaints but was in the separation period prior to active labor. At 10:15 Dr. Hackett called and ordered a second round of the same dosages of demerol and largon. At 11:00 there was a "bloody show" and moderately high pains at regular intervals. At 12:02 plaintiff's membranes (water bag) ruptured spontaneously and the amniotic fluid contained a large amount of meconium (a stool which is usually passed after birth). At 12:05 a. m. Dr. Hackett was notified. At 12:20 there was delivery of a 6 pound, 10 ounce viable female with only nurse Morgan in attendance. At 12:21 Dr. Hackett advised he was in route.

The hospital chart reveals there was no cry at birth and coloring was pink with cyanosis (blue) of the extremities. The nurse suctioned fluid and blood from the nose and mouth, noted respiratory effort was poor with deep retractions, and administered oxygen by mask. At 12:35 Dr. Hackett arrived, also noted breathing difficulty, and ordered resuscitation. He felt the infant was having problems and ordered the baby placed in the nursery incubator for additional oxygen. The notes show his order was at 12:45 at which time the nurse reported there was a weak cry upon stimulation, the child was still retracting on respiration, but the color and breathing had improved. At 1:00 a. m. the baby continued retracting on respiration. Dr. Hackett left the hospital between 1:30 and 1:45 a. m. (the time is not in the hospital record). The 2:00 a. m. note indicated respiration was "poor" and oxygen was administered by mask. At 2:10 the supervisor and Dr. Evans (the emergency room physician) were present and found respirations were shallow. The infant was pronounced dead at 2:22 a. m. Dr. Hackett did not request any tests or consult a pediatrician before leaving the hospital.

Plaintiff sued alleging negligent acts of omission, namely: Dr. Dean was unavailable and Dr. Hackett was not present to deliver the baby; Dr. Hackett ordered medication without personally examining plaintiff; the baby's death was caused by improper care and treatment; the hospital did not have a staff doctor on duty.

The Trial Judge dismissed plaintiff's suit because she did not prove, by a preponderance of the evidence, that either Doctor or the hospital did anything contrary to the standard of care in the community.

ARGUMENT

Plaintiff argues her treatment prior to delivery was insufficient because the only person in attendance was the nurse. Also, there was no examination to determine dilation of the cervix and this information should have been available when Dr. Hackett telephoned. Plaintiff's expert, Dr. George Sterne, a pediatrician, testified it was normal in the New Orleans area for a nurse to examine the expectant mother to determine dilation and record fetal heart tones. He felt an accurate judgment of the time for delivery was impossible based solely on the heart tones and contractions. Defendants' two experts, Dr. John Lindner and Dr. Simon Ward, obstetricians, testified there was no correlation between Dr. Hackett's absence during delivery and the child's death. Both defendants' experts also said in most hospitals in the New Orleans area O.B. nurses do not check dilation unless requested by the attending physician and it was usual for the physician to be guided by the nurse's observations through periodic phone calls. The three experts agreed all doctors want to be present for a delivery, but a rare absence does occur. Dr. Ward said "... it is a community standard for the doctor to be in attendance ..."

Next plaintiff argues Dr. Hackett was negligent by twice prescribing demerol and largon without an examination. Dr. Sterne said it was reasonable to order the first dose but it should not have been repeated absent an examination. Defendants' experts thought ordering drugs 6 and 2 hours prior to delivery was appropriate even without seeing the patient.

*354 Dr. Sterne testified when plaintiff's water bag broke with a large amount of meconium in the amniotic fluid it clearly indicated the infant was in distress. He said the fetus had been "compromised in terms of oxygen" and should have been delivered "as expeditiously as possible." He estimated only 1% of all deliveries discharge amniotic fluid containing meconium. Dr. Lindner said meconium was found in the fluid in many instances and its presence did not indicate what was occurring in the uterus. Dr. Ward testified until the membranes ruptured revealing a large amount of meconium, there was no reason to suspect a high risk pregnancy because some meconium is not unusual; however, this definitely pre-alerts to the possibility of a problem. Dr. Ward opined because plaintiff was in the final stage of labor all that could be done was deliver. He felt at that point he would not have proceeded any differently because of the meconium.

The medical experts also disagree on the type and sufficiency of treatment for the child after birth. Dr. Sterne said the APGAR (a device used by less experienced personnel to evaluate newborns) score of 4, with a 2 reflecting the heart rate, indicated the child was revivable but required vigorous attention. He felt strongly there was a lack of diagnostic procedures (x-rays or additional tests) and the treatment was inadequate. He stated the deep retractions with respiration indicated either a central nervous system problem (from drug depression), or asphyxia, or both.

It was Dr.

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Bluebook (online)
416 So. 2d 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-v-dean-lactapp-1982.