Tammy VandeStreek Tim VandeStreek And Claude Ducloux, as Guardian Ad Litem for Courtney VandeStreek, a Minor v. Jo Bess Hammer, M.D.

• Court: Court of Appeals of Texas
• Decided: July 13, 2000
• Docket: 03-99-00355-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00355-CV

Tammy VandeStreek; Tim VandeStreek; and Claude Ducloux, as Guardian Ad Litem for Courtney VandeStreek, a Minor, Appellants

v.

Jo Bess Hammer, M.D., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 97-06257, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

We consider in this appeal whether the evidence shows that appellee Jo Bess Hammer, M.D., violated the standard of care required of a doctor delivering an infant when a shoulder dystocia has occurred. Because Courtney VandeStreek sustained a brachial plexus injury during her delivery, her parents Tammy VandeStreek and Tim VandeStreek and her guardian ad litem Claude Ducloux sued Dr. Hammer for medical malpractice. Following trial to a jury, the jury failed to find that Dr. Hammer was negligent. The trial court rendered judgment on the verdict for Dr. Hammer. We affirm the trial court's judgment.

In a single issue on appeal, the VandeStreeks contend that they established by the great weight and preponderance of the evidence that Dr. Hammer failed to follow the standard of care required for delivering a baby when a shoulder dystocia has occurred. After the evidence was presented at trial, the jury was asked: "Was the negligence, if any, of Dr. Hammer a proximate cause of the brachial plexus injury to Courtney VandeStreek?" The jury answered, "No."

To review the evidence under a challenge that the verdict is against the great weight and preponderance of the evidence, we consider all the evidence and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). A jury's failure to find a fact need not be supported by affirmative evidence, but the jury cannot refuse to find a fact in the face of overwhelming evidence of its existence. Russell v. Hankerson, 771 S.W.2d 650, 653 (Tex. App.--Corpus Christi 1989, writ denied). The jury's failure to find for the VandeStreeks here means, not that they affirmatively found the converse, but simply that the VandeStreeks failed to carry their burden to convince the jury, by a preponderance of the evidence, that the fact of negligence existed. Gensco, Inc. v. Canco Equip., Inc., 737 S.W.2d 345, 347-48 (Tex. App.--Amarillo 1987, no writ).

The trial court instructed the jury that ordinary care means the degree of care that an obstetrician of ordinary prudence would use under the same or similar circumstances. The court also instructed the jury, in accordance with Texas law, that

[a] finding of negligence may not be based solely on evidence of a bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence.

See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 7.02(a) (West Supp. 2000).

During the birth process, after Courtney's head was delivered, her top or anterior shoulder lodged behind the mother's pubic bone, preventing the rest of Courtney's body from being delivered. A delivery complicated by a shoulder impacted in this way is known as a shoulder dystocia. Among her efforts to free the shoulder, Dr. Hammer applied traction to, or pulled on, Courtney's head. Courtney was born with a brachial plexus injury involving her left shoulder and arm. ⁽¹⁾ Dr. Hammer testified that her pulling on the head while the shoulder was impacted behind the pubic bone damaged Courtney's shoulder. The traction tore the muscle, fascia or membranes that help protect the muscle, and three cervical nerves that go to the deltoid, biceps, and triceps muscles. Although two surgeries have repaired some of the damage, Dr. Laurent, Courtney's neurosurgeon, believed that Courtney's left shoulder and arm will remain smaller than normal, that she will have weakness in her left arm and fewer fine motor skills in her left arm and hand, and that shoulder pain and scoliosis may develop.

Five doctors, including Dr. Hammer, testified at trial. Dr. James O'Leary has had a practice primarily at teaching hospitals, teaching medical students, interns, and residents. He is certified in obstetrics and gynecology by the American College of Obstetricians and Gynecologists and has focused on complicated and high-risk obstetrics. He has also maintained a small clinical practice and has published extensively in the field of obstetrics. Dr. John Laurent is the pediatric neurosurgeon who has performed two surgeries on Courtney. He is the chief of neurosurgery at Texas Children's Hospital and co-chief of the brachial plexus clinic within that hospital. Dr. Bruce Halbridge maintains a general obstetrics and gynecology practice in Houston with an emphasis on high-risk pregnancies. He is certified by the American College of Obstetricians and Gynecologists and has delivered many thousands of babies, including several hundred with shoulder dystocias. Dr. George Hilliard is an obstetrician/gynecologist practicing in San Antonio. He has spent much of his career teaching residents obstetrics and gynecology in the United States Air Force, and has also had an active clinical practice in which he delivers about 300 babies a year, involving 9000 to 10,000 deliveries throughout his career. Finally, Dr. Hammer has practiced in Austin as an obstetrician/gynecologist since 1980. She is certified by the American College of Obstetrics and Gynecology, has assumed positions of leadership at the hospital where she is admitted to practice, and has delivered about 4000 babies during her career.

The witnesses agreed that a shoulder dystocia presents a medical emergency that is potentially life threatening because the baby's umbilical cord can be compressed against the vaginal wall, decreasing the blood flow through the cord. The doctor must deliver the baby within about four minutes to avoid the risk of injuring the baby's brain from the lack of oxygen. Dr. Hilliard testified further that, because the doctor does not know the baby's internal status once the head has been delivered, it is not recommended that the doctor necessarily take a full four minutes to free the shoulder and deliver the baby. He stated that not knowing the baby's status requires the doctor to use her judgment and that this was a case requiring judgment as to whether to deliver the baby to prevent other kinds of injuries and loss of life. About two minutes elapsed in this case between the time Courtney's head was delivered and full delivery was accomplished.

No dispute exists among the witnesses that, to begin treatment of a shoulder dystocia, a doctor who uses the McRoberts position, suprapubic pressure, and gentle traction meets the standard of care. To use the McRoberts position, the mother's knees are pushed up against the abdomen to open up the pelvic bones and rotate the pubic bone, freeing the impacted shoulder in some instances. Suprapubic pressure is applied by a nurse who pushes down on the pubic bone where the baby's shoulder is caught to help dislodge it. Dr. O'Leary testified that while the mother is in the McRoberts position and suprapubic pressure is being applied, the doctor has her hands on the baby's head and exerts the amount of traction normally used to deliver a baby. Employing the McRoberts position, suprapubic pressure, and traction together, according to Dr. O'Leary, relieves about eighty percent of shoulder dystocia cases. Dr. O'Leary also stated that performing an episiotomy, an incision in the vulva to allow more room, is an essential part of treating a shoulder dystocia.

During the delivery in this case, Courtney's upper shoulder lodged against the pubic bone during the descent of the head, and once the head appeared, Dr. Hammer noticed the shoulder dystocia. Dr. Hammer testified that she immediately performed a complete episiotomy to give the most room possible. All witnesses except Dr. Halbridge testified that Dr. Hammer had Mrs. VandeStreek placed in the full McRoberts position, with her knees back to her chest. Dr. Halbridge could not be sure from his review of the case that Mrs. VandeStreek's legs were pulled back far enough to help her deliver the baby without damage. Dr. Hammer testified without contradiction that a nurse applied suprapubic pressure with the palm of her hand.

The amount of traction to be used while treating a shoulder dystocia was a significant issue at trial. Dr. O'Leary described the amount of traction as gentle, downward traction, the same amount of traction the doctor routinely uses to deliver babies. He stated that, although it should never be strong, the doctor's hands-on experience with the baby allows her to know how much traction to use. Dr. O'Leary testified that rather than using strong traction, the doctor should try other maneuvers. While he warned against using strong traction, Dr. O'Leary agreed that in some situations a greater force than that ordinarily given might be necessary to correct a shoulder dystocia. Dr. Halbridge testified that traction that tears nerves and muscle is never justified. He believed that a doctor delivering a child should use only gentle traction. Dr. Hammer testified that because shoulder dystocia is an emergency, a doctor might at times use more than the gentle pressure used at the beginning of delivery. She also stated that when suprapubic pressure is applied, the doctor must apply some amount of traction to guide the shoulder forward; she agreed with the statement that the traction in this circumstance should be gentle. Dr. Hilliard testified that a doctor who has delivered thousands of babies has a feel for the right amount of traction for a particular situation and that that amount is unquantifiable. He testified that using the McRoberts position and suprapubic pressure will often require the doctor to place some traction on the baby's head. Dr. O'Leary referred to a study in which Drs. Allen and Gonik tried to measure the amount of traction exerted during various deliveries; they found that in a difficult delivery, almost twice as much traction is used as during a normal delivery. When the shoulder is stuck, three to four times the normal amount of traction is exerted. Dr. Hilliard stated that a layperson who observes a delivery, and who may have seen one or two deliveries before that, cannot know what traction a doctor routinely uses to deliver a baby and cannot tell whether a doctor is applying too much traction at any one time.

Mrs. VandeStreek's mother Sharon Ross testified that during the delivery Dr. Hammer pulled on the baby's head as hard as she could. Shelly Ross, one of Mrs. VandeStreek's sisters, described Dr. Hammer as pulling Courtney's head very hard, like it was a stuck doorknob. Shelly testified that Dr. Hammer pulled more than once, at least three times. Kelly Ross, Shelly's twin, also testified that Dr. Hammer pulled Courtney's head more than once. She stated that Dr. Hammer pulled so hard that it seemed as if Courtney's neck was stretching. Dr. Hammer testified that she applied downward traction on the baby's head to deliver it. She did not think that she was using so much traction that she was causing any injury to Courtney.

The witnesses agreed that the effects of traction on a baby during delivery are not uniform. Dr. O'Leary recognized that in a rare case a child can sustain a permanent brachial plexus injury even though the doctor applies the normal amount of traction. Dr. Laurent testified that each child is different, and that the amount of traction that will tear one child's nerves might not tear another child's. Dr. Hammer disagreed at trial that, according to the medical literature, normal, gentle traction will not injure a brachial plexus. Dr. Hilliard agreed that a normal amount of traction that would cause no injury in one baby might permanently injure another, and stated that it is impossible to know in advance whether the amount of traction that would not injure one child would injure another. Dr. Hilliard cited a study in which babies were controlled for weight, whether the mother had borne previous children, labor course, and pressure during delivery; despite the controls, some babies were injured during delivery and some were not. Dr. Hilliard believed that doctors' clinical experience bore out the study's results: despite appearing similar each baby is different, such that the traction that works for one would not work for another, and under seemingly identical circumstances, one baby will have injuries and another will not.

Testimony was also given on the action that should be taken if the McRoberts position with suprapubic pressure and gentle traction fail. Dr. O'Leary testified that if these techniques do not deliver the baby, the doctor should stop pulling and try other maneuvers before applying additional traction. To continue pulling on the baby if the McRoberts position and suprapubic pressure fail to free the shoulder would be below the standard of care. The witnesses described a number of maneuvers that can be used to help release the shoulder. In one, the doctor reaches her hand into the vagina toward the pubic bone and pushes the baby's anterior or top shoulder off to the side so that it comes out. In the Woods maneuver, the doctor puts her hand behind the posterior or bottom shoulder and rotates it progressively 180 degrees in a corkscrew manner so as to release the impacted shoulder. A third maneuver, delivery of the posterior shoulder, requires the doctor to sweep the baby's posterior arm across the chest, then to deliver the arm and finally the impacted shoulder.

Dr. O'Leary stated that the order in which these maneuvers are used is not fixed, but depends on the doctor's preferences and judgment. Dr. Halbridge testified that if using the McRoberts position and suprapubic pressure with gentle traction do not deliver the baby, he never adds additional traction until the shoulder is released. Dr. Halbridge stated that an obstetrician delivering a baby violates the standard of care by applying additional traction when the shoulder is still impacted behind the pubic bone. Dr. Hilliard agreed that, if additional meant excessive or more than normal traction, then no additional traction should be used. He stated that although a doctor would not use more traction than normally used to deliver a baby, the doctor might come back repeatedly to using normal traction. Dr. Hilliard stated that during the minutes available to treat a shoulder dystocia, the doctor is constantly trying and retrying maneuvers, repeating some that did not work the first time. Dr. Hilliard stated that no protocol of maneuvers can replace good clinical judgment. Although eschewing a standard order of procedures, if the McRoberts position with suprapubic pressure and gentle, downward traction failed, Dr. Hilliard would himself try another maneuver to release the shoulder before applying additional traction.

Mrs. VandeStreek's sister Kelly had testified at her deposition that after the episiotomy she saw Dr. Hammer insert her fingers into the vagina to help the delivery. Dr. Hammer testified that, although she had not initially remembered it, the deposition testimony of Kelly helped her remember that she inserted her fingers into the vagina posteriorly or behind the baby. At trial, however, Kelly stated that at no time after the episiotomy did she see Dr. Hammer insert her hand to try to deliver the posterior arm. Sharon Ross and Shelly also denied seeing Dr. Hammer insert her fingers into the vagina to attempt to free the impacted shoulder. Dr. O'Leary's perception from watching the videotape of the delivery was that Dr. Hammer's hands remained on Courtney's head while she was treating the shoulder dystocia. Dr. Hammer testified that sweeping her fingers in the vagina would mean that she was going behind the posterior shoulder to try to move the arm up to deliver that shoulder. The attempt to deliver the posterior shoulder did not work.

Dr. Hammer testified that by using the McRoberts position with suprapubic pressure and downward traction, she was able to deliver the baby. The purpose of giving downward traction was to dislodge the shoulder from behind the pubic bone. Because these procedures delivered the baby, Dr. Hammer did not proceed to other maneuvers such as rotating the shoulder.

Dr. O'Leary agreed that brachial plexus injury can occur even though a doctor applies appropriate obstetric maneuvers. Similarly, Dr. Laurent testified that brachial plexus injuries can occur without negligence on the doctor's part. Dr. Halbridge stated, to the contrary, that based on his studies and experience a permanent brachial plexus injury caused by a shoulder dystocia has never occurred absent negligence by the doctor.

Dr. Laurent testified that the damage to Courtney's muscles and nerves was caused by severe lateral traction to the neck at the time of birth, but formed no opinion as to whether Dr. Hammer did anything inappropriate during the delivery. Dr. O'Leary testified that after gentle traction, used with the McRoberts procedure and suprapubic pressure, failed to free the shoulder, Dr. Hammer should have stopped what she was doing and used some of the other maneuvers. He believed that Dr. Hammer used undue force to deliver Courtney. Dr. Hilliard stated that from his review of the medical records in this case, Dr. Hammer did what any reasonable physician would do to deliver a baby with a shoulder dystocia and that she did not deviate from the standard of care.

The jury in this case heard a range of testimony concerning the appropriate methods for treating a shoulder dystocia and the actions Dr. Hammer took during Courtney's delivery. When the evidence conflicts, the jury can choose to believe one witness and disbelieve others or resolve inconsistencies in their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). It is within the province of the jury to weigh expert opinion testimony and to determine which expert witness should be credited. Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex. App.--Dallas 1991, writ denied). On this record, the jury could have found that some amount of traction was necessary to release the shoulder and that Dr. Hammer, using her experience in delivering 4000 babies, applied a proper amount of traction to deliver Courtney. That Courtney sustained injuries as a result does not alone determine that Dr. Hammer violated the standard of care. See art. 4590i, § 7.02(a). Because the jury's failure to find that Dr. Hammer violated the standard of care is not against the great weight and preponderance of the evidence, we overrule the VandeStreeks' issue.

We affirm the trial court's judgment.

Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: July 13, 2000

Do Not Publish

1. The brachial plexus is made up of nerves that go to the arm and the hand.

oulder before applying additional traction.

Mrs. VandeStreek's sister Kelly had testified at her deposition that after the episiotomy she saw Dr. Hammer insert her fingers into the vagina to help the delivery. Dr. Hammer testified that, although she had not initially remembered it, the deposition testimony of Kelly helped her remember that she inserted her fingers into the vagina posteriorly or behind the baby. At trial, however, Kelly stated that at no time after the episiotomy did she see Dr. Hammer insert her hand to try to deliver the posterior arm. Sharon Ross and Shelly also denied seeing Dr. Hammer insert her fingers into the vagina to attempt to free the impacted shoulder. Dr. O'Leary's perception from watching the videotape of the delivery was that Dr. Hammer's hands remained on Courtney's head while she was treating the shoulder dystocia. Dr. Hammer testified that sweeping her fingers in the vagina would mean that she was going behind the posterior shoulder to try to move the arm up to deliver that shoulder. The attempt to deliver the posterior shoulder did not work.

Dr. Hammer testified that by using the McRoberts position with suprapubic pressure and downward traction, she was able to deliver the baby. The purpose of giving downward traction was to dislodge the shoulder from behind the pubic bone. Because these procedures delivered the baby, Dr. Hammer did not proceed to other maneuvers such as rotating the shoulder.

Dr. O'Leary agreed that brachial plexus injury can occur even though a doctor applies appropriate obstetric maneuvers.