Stein v. Insurance Corp. of America

566 So. 2d 1114, 1990 WL 122963
CourtLouisiana Court of Appeal
DecidedAugust 22, 1990
Docket21662-CA
StatusPublished
Cited by13 cases

This text of 566 So. 2d 1114 (Stein v. Insurance Corp. of America) 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
Stein v. Insurance Corp. of America, 566 So. 2d 1114, 1990 WL 122963 (La. Ct. App. 1990).

Opinion

566 So.2d 1114 (1990)

Sandra Arleen STEIN, Individually and Sandra Arleen Stein and Steven R. Stein, as Natural Tutors of the Minor Child, Emily Mae Stein, Appellants,
v.
INSURANCE CORPORATION OF AMERICA, et al., Appellees.

No. 21662-CA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 1990.
Writ Denied November 26, 1990.

*1115 Jack H. Kaplan, Shreveport, for appellants.

Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for appellees.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

NORRIS, Judge.

Plaintiffs, Steven and Sandra Stein, appeal a judgment in favor of Drs. Dale Bauman and John Waterfallen, and their insurer, Insurance Corporation of America, contending the jury erred in not finding the doctors guilty of medical malpractice in the prenatal care and delivery of their daughter, Emily, in 1982. Finding no manifest or clear error, we affirm.

FACTS

On April 13, 1982, Mrs. Stein consulted Drs. Bauman and Waterfallen, specialists in obstetrics and gynecology, and arranged for them to provide prenatal care and to deliver her baby. Drs. Bauman and Waterfallen were partners at the time.

At the initial visit, Dr. Bauman obtained a medical history of Mrs. Stein's first birth, which had been less than a year before, in July 1981. At that time she delivered an 8 lb. 12 oz. baby girl at full term with no major complications. She had gained 43 lbs. during that pregnancy and was in labor for 17 hours. There was, however, nothing to cause concern except for some bleeding early in the term. Now, at age 25, Mrs. Stein's normal weight was 130 lbs. Dr. Bauman performed a urine test, weighed her at 141 lbs. and determined she was about three months pregnant. He observed no major risk factors in this pregnancy. He estimated her due date at October 24.

Mrs. Stein returned on April 27. Her weight was 145 lbs. and her gestational age was estimated at 14 weeks. On May 23, Dr. Bauman measured the fundal height of the uterus at 18 centimeters. He also ran a sonogram, a device that uses ultrasound to project an image, to ascertain the gestational age of the fetus. The test revealed a gestational age of 17 weeks and one day.

Dr. Bauman saw Mrs. Stein several times in the next four months. By September 10, at 34 weeks gestation, Mrs. Stein weighed 168 lbs. and the fundal height of the uterus was 35 cm. On October 1, Dr. Bauman noted that the fetus's head was floating out of the pelvis, which means it had not dropped into the pelvic cavity.

Dr. Waterfallen examined Mrs. Stein the next three times in October. He found no risk factors in her pregnancy and that the fetus's head was still floating. On October 28, Dr. Bauman examined Mrs. Stein and reported that the fetus was beginning to *1116 drop into the pelvic cavity. By this time, Mrs. Stein weighed 172 lbs. and the gestational age of the fetus was 41 weeks.

On November 5, after 42 weeks of gestation, Mrs. Stein asked that labor be induced. She was concerned about the length of pregnancy and the weight of the fetus. She weighed 174 lbs. and the fundal height of the uterus was 45 cm. Dr. Bauman examined her and noted that the fetus's head was still floating but that it was "presenting." He saw no reason to suspect that this infant was significantly larger than her first. He believed that although the uterus appeared extremely large, this was the result of excess fluid and not an abnormally large baby. He scheduled an induction for labor for November 8.

On November 8, at approximately 6:00 a.m., Mrs. Stein checked into Schumpert Hospital. At 7:30 a.m., pitocin was administered to induce labor. At 9:30 and 11:00 a.m., the nurse increased the pitocin. Dr. Bauman checked on Mrs. Stein twice in the morning and performed a pelvic examination. At approximately 12:00 noon, Mrs. Stein was taken to the delivery room and Dr. Bauman performed an amniotomy, the artificial rupture of the membranes to drain amniotic fluid from the uterus. This allowed the fetus's head to drop into the pelvic cavity. At 1:00 p.m., Mrs. Stein was given an epidural anesthesia.

The second stage of labor began at 2:00 p.m. when Mrs. Stein was completely dilated at 10 cm. Dr. Bauman repeatedly urged Mrs. Stein to push harder. Two nurses applied fundal pressure at the top of the abdomen. Eventually the baby's head began to emerge. Dr. Bauman tried to place forceps on the baby's head to help pull it out, but could not get a satisfactory grip. He cut a third degree episiotomy to open the womb to help get the head delivered. After more fundal pressure, Dr. Bauman again applied the forceps and was successful in getting the baby's head out to the neck. At this time, Dr. Bauman realized the baby's right shoulder was lodged above the pubic bone. This occurrence, known as "shoulder dystocia," is a medical emergency requiring immediate delivery. While the baby is in the birth canal, the umbilical cord is totally compressed, cutting off the blood flow; the baby must be delivered within seven minutes before it suffers brain damage or death. Dr. Bauman first attempted to rotate the baby's head. He then used the Woodscrew maneuver by reaching behind the baby's left shoulder and rotating it around. Both procedures were unsuccessful, as the shoulder could not be turned. Finally, the nurse applied superpubic pressure above the pubic bone; this dislodged the right shoulder. The baby was delivered at 2:45 p.m. She weighed 11 lbs. 10 oz. Dr. Bauman made sure the baby was stable and then repaired the episiotomy.

The baby was born with a fractured right clavicle and right rib cage. She also suffered damage to the right brachial plexus nerve which resulted in Erb's Palsy of her right shoulder. Because of this injury, she cannot raise her right arm above her head without difficulty. The condition is permanent.

In November 1983, plaintiffs filed a claim against defendants with the Office of the Commissioner of Insurance. They contended that Drs. Bauman and Waterfallen were negligent in failing to determine the baby's large weight by ultrasound and in failing to determine if Mrs. Stein was a gestational diabetic, a condition which disappears shortly after birth. Pursuant to LSA-R.S. 40:1299.47, a medical review panel was formed to review the case and issue a recommendation. The panel was composed of Dr. Douglas King, Dr. Timothy Hart and Dr. Samuel Burke. On May 27, 1986, the panel rendered an opinion in favor of defendants. It found no deviation below the applicable standard of care and, consequently, no medical malpractice.

On July 28, 1986, plaintiffs filed suit against Drs. Bauman and Waterfallen and their insurer. Other named defendants were dismissed on a peremptory exception of prescription. The case proceeded to a jury trial in April 1989. The expert medical testimony is summarized below. As noted, the jury rendered a verdict in favor of the *1117 defendants and the plaintiffs have appealed.

EXPERT MEDICAL EVIDENCE

Dr. Richard Cursell, an OB-GYN specialist from St. Louis, Missouri, testified on behalf of plaintiffs. After reviewing the records of the delivery, he testified that Dr. Bauman unquestionably performed all of the appropriate maneuvers to deliver the baby once the shoulder dystocia occurred. He conceded that shoulder dystocia is hard to predict. However, he believed that defendants were negligent in their prenatal care in two respects. First, they failed to rule out gestational diabetes with a 50 gram glucose loading test. He said that although Mrs.

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Bluebook (online)
566 So. 2d 1114, 1990 WL 122963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stein-v-insurance-corp-of-america-lactapp-1990.