Kelly on Malpractice

In Olinger v. University Medical Center, 2008 WL 162535 (Tenn.Ct.App.), plaintiffs filed a birth trauma action after their son was born with brachial plexus palsy. The lawsuit was filed by the child’s parents against the University Medical Center in Lebanon, Tennessee, as well as Charles B. Lanning, Jr., M.D., and StarMed Health Personnel, Inc. (“StarMed”). StarMed employed Sheila Sturgill, R.N., who was the nurse involved in the delivery. Plaintiffs claimed the injury occurred because the defendants failed to take the proper medical steps to resolve a delivery complication known as shoulder dystocia. Following a trial, the jury returned a verdict in favor of all of the defendants. Plaintiffs appealed claiming the trial court erred: (1) when it gave a jury instruction on the sudden emergency doctrine, (2) when it refused to permit cross-examination of a witness by the use of medical literature which plaintiffs maintained had been established as a reliable authority pursuant to TENN. R. EVID. 618.

Dr. Lanning was the treating gynecologist and obstetrician for the birth of plaintiff Katherine Olinger’s first child. Ms. Olinger’s first child was born without complications in August of 1995. When Ms. Olinger became pregnant with her second child in 1999, Dr. Lanning again served as her treating gynecologist and obstetrician. Ms. Olinger was admitted to the University Medical Center for delivery of her second child, Michael Eugene Hale. A complication known as shoulder dystocia occurred during the delivery. Shoulder dystocia occurs after the head of the infant is delivered and one of the infant’s shoulders then becomes lodged under the mother’s pubic bone. The Child suffered significant and permanent damage to his right arm as a result of the shoulder dystocia. He was diagnosed with brachial plexus palsy and has since undergone several surgical procedures.

One of Plaintiffs’ allegations was that Nurse Sturgill improperly applied fundal pressure during the delivery. Fundal pressure is pressure on the mother’s abdomen. Plaintiffs claimed the fundal pressure should not have been applied and caused or contributed to the Child’s injuries. The defendants argued that the “sudden emergency” confronted by Dr. Lanning and the delivery room nurses was not the occurrence of shoulder dystocia, but the fact that the shoulder dystocia was not resolved after the typical steps used to resolve that complication failed. Dr. Lanning added that in his 21 years of practicing medicine as an obstetrician, Ms. Olinger’s delivery was the first time he encountered shoulder dystocia that was not resolved by the McRoberts maneuver and suprapubic pressure. The jury was presented with conflicting testimony as to whether Nurse Sturgill did or did not apply fundal pressure. In short, plaintiffs’ proof was that she did and defendants’ proof was that she did not.

The issue about the sudden emergency charge was fairly simple. The defendants argued that the sudden emergency occurred when the McRoberts maneuver and suprapubic pressure failed to resolve the shoulder dystocia. The plaintiffs argued that Dr. Lanning should have anticipated that those initial steps would not work, therefore, no sudden emergency arose.

The Court of Appeals revisited the sudden emergency doctrine in a medical malpractice case in Ross v. Vanderbilt University Medical Center, 27 S.W.3d 523 (Tenn. Ct. App. 2000). In Ross, the plaintiff went to the emergency room because of a cut on her finger. The emergency room physician injected the plaintiff’s finger with Lidocaine in order to numb it. Then, almost immediately thereafter, the plaintiff had an allergic reaction to the shot. She felt ill. Her arm jerked up, and her eyes rolled back in her head. She fainted and fell to the floor on her head, suffering brain damage. The plaintiff in Ross contended that there could not be a sudden emergency in an emergency room because “the circumstances underlying the sudden emergency doctrine are already taken into account in an emergency room setting.”

Once in Defendant’s emergency room, the emergency that justified the sudden emergency instruction was not the plaintiff’s cut finger, but her allergic reaction to the shot. There was testimony that plaintiff’s allergic reaction was both sudden and unexpected. It is highly unusual for a patient to suffer seizure-like activity from an allergic reaction. The circumstance that underly the sudden emergency doctrine — the existence of a sudden or unexpected emergency which calls for immediate action — was only present because the plaintiff experienced the allergic reaction. Therefore, the court in Ross held that under the appropriate facts, the sudden emergency doctrine may and should be applied in the assessment of the fault of an emergency room doctor.

Returning to the facts of this case, the Court of Appeals agreed with Plaintiffs’ argument that because of a physician’s training and background, the sudden emergency doctrine has a limited application in medical malpractice cases. “Simply because there is a medical complication does not necessarily mean that there is a sudden emergency.” However, the Court was unwilling to hold that the sudden emergency doctrine never applies in a medical emergency situation. Under the material evidence standard following a jury verdict, the Court concluded that there was sufficient proof presented at trial that when the shoulder dystocia did not resolve after application of the McRoberts maneuver and suprapubic pressure – something not seen or experienced by Dr. Lanning in his twenty-one years as an obstetrician delivering roughly 4,000 babies – a sudden emergency charge is appropriate.

Plaintiffs’ second issue on appeal was whether the trial court erred when it refused to allow Nurse Sturgill to be cross-examined by using certain medical literature as provided for by TENN. R. EVID. 618. Plaintiffs called Nurse Eakes as an expert witness at trial. During direct examination, Nurse Eakes identified an article titled “Intrapartum Management Module” as being a reliable medical authority. When plaintiffs later attempted to cross-examine Nurse Sturgill using this article to support Plaintiffs’ position that the application of fundal pressure during the delivery of the Child was a violation of the acceptable standard of professional practice, the defendants objected. The defendants argued that plaintiffs had not established that the article set forth the applicable standard of care during the relevant time frame. When counsel for plaintiffs stated, “So basically your ruling would be the additional foundation would have been necessary to link it to the year …”, the trial court responded in the affirmative. Court of Appeals found that the plaintiffs waived this issue, and that any error in this regard was harmless.

Here are the lessons from Olinger. First, simply because there is a medical complication does not necessarily mean that there is a sudden emergency. However, the sudden emergency doctrine does apply in some medical situations. The defendant physician was clever to combine paradoxically his wealth of experience with his lack of experience. In so doing, he was able to prove that the rarity of the situation he confronted justified giving an experienced physician a pass. Perhaps, the physician’s failure to anticipate should be the focus of the case when a sudden emergency defense can be alleged. Second, greater foundation may be expected when counsel attempt to link medical treatises to the standard of care under TENN. R. EVID. 618.

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