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Christopher L. Snow, A Minor By and Through His Guardian Ad Litem v. United States of America

September 23, 2011


The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

Plaintiffs Christopher, Tanya, and Timothy Snow brought this medical malpractice action under the Federal Tort Claims Act (FTCA). They allege that during labor and delivery at the Naval Medical Center, San Diego (NMCSD), medical personnel failed to act within the standard of care, resulting in injuries to Christopher Snow. The two specifically identified medical personnel are Nurse Midwife Elizabeth Schwartz and Dr. Thomas Gaylord, an OBGYN who oversaw portions of the labor and who delivered Christopher Snow by Caesarean section. The complaint alleges that Christopher Snow now suffers from cerebral palsy and other disorders as a result of his injuries.

The Court held a bench trial. After hearing evidence from both parties, reviewing the briefing supporting the parties' closing arguments, then hearing closing arguments, the Court now makes its findings of fact and renders its verdict. As discussed more fully below, the Court finds the medical personnel at NMCSD acted within the appropriate standard of care. The Court therefore does not reach the question of causation, and the question of damages need not be tried.

I. Discussion

Under the FTCA, the United States can (within certain limits) be sued to the same extent as a private individual could be. 28 U.S.C. § 2674. Where, as here, plaintiffs bring their claims under the FTCA, the Court applies the law of the state in which the alleged tort occurred. See Toomer v. United States, 615 F.3d 1233, 1239 (9th Cir. 2010). Here, that means the Court applies California law.

"In California, medical personnel are held in both diagnosis and treatment to the degree of knowledge and skill ordinarily possessed and exercised by members of their profession in similar circumstances." Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). Except where medical treatment required is within the common knowledge of laypeople, the standard of care must be proved by expert testimony. Id. Plaintiffs must prove by a preponderance of the evidence that Defendant's medical personnel failed to act with the required medical standard of care, and that their negligence caused Christopher Snow's medical disorders. See Woods v. United States, 720 F.2d 1451, 1452 (9th Cir. 1983) (citing trial court's findings).

A. Evidence of Standard of Care

Here, Plaintiffs offered the testimony of Dr. Barry Schifrin concerning the labor and delivery. (Plaintiff's other expert witnesses testified concerning injury and causation.) His testimony focused on available measurements which, he concluded, a competent OB-GYN would know that the labor was not progressing normally and the baby was in peril. His testimony focused on the fetal heart monitor tracings and what they showed concerning possible danger to the baby. Dr. Schifrin in detail discussed his interpretations of the fetal monitoring strips beginning at page 3011, continuing through page 3013, then moving to page 3018 and finally page 3025; shortly after this, the decision to perform the C-section was made.

Dr. Schifrin, referring to page 2971 of the tracings, identified the baby's base heartrate as being 150, and used this as the reference when discussing whether the heartrate had returned to normal after contractions. Beginning at page 3011 (approximately 5:22 a.m.), he identified diminished variability. Looking at the monitoring strip, he testified that it demonstrated interference with blood flow and lack of availability of oxygen.

In the next tracing (covering roughly 5:30 to 5:38 a.m.), he testified there was no return to the baseline between four contractions, that this was not caused by medication, and that After that, he identified a failure of the baby's heart rate to return to the baseline between contractions. He testified this was not caused by medication, and that (around 6:00 a.m.) there was a need to deal with decelerations. Terbutaline was administered, which helped reduce uterine activity, but he testified the tracings showed the baby was not recovering between contractions. At this point, the heart rate went up to 180.

Beginning on page 3025 of the tracings, Dr. Schifrin identified decelerations, then persistent deceleration on page 3026. Shortly after this, he testified, the decision was made to delivery the baby by C-section. In his opinion, this decision was made about an hour too late. He believes the baby sustained an injury around 7:15 a.m.

Plaintiffs' evidence also suggested that the baby was not descending through the birth canal normally, and remained at station -2 from approximately 4:00 until 7:15 a.m. Progress of one centimeter was noted, which their witnesses attributed to swelling of the baby's head. After delivery, however, the baby's fontanelles were soft and flat, with no evidence of swelling. Dr. David Miller testified for the Defendant that there was no significance to the baby's not descending until the second, active stage of labor, and that no medical authority teaches that head compression warrants intervention.

On the stand, Dr. Miller reviewed pages 3009 through 3026, reaching different conclusions than Dr. Schifrin. Beginning at page 3009, he testified the tracings, including variability, were within the normal range. Beginning at page 3013, he said nothing would have prevented a doctor from calling for a C-section, though it was not required. Reviewing pages 3014 through 3024, he testified the labor appeared to be progressing normally, and the baby appeared healthy. He had no concern for the baby's health based on these tracings. Beginning on page 3024, however, he identified some variation between decelerations and normal variability. Then on page 3025 (7:14 a.m.), with the mother dilated to 9 cm and the baby at -1 station, he said it would be appropriate to carry out a C-section quickly, but not on a "crash" basis. Based on the tracing at page 3026, he said the C-section should have been done "as rapidly as safely possible," which appears to have been what was actually done. He also testified he thought the care given in this case was very good.

Obviously, Dr. Schifrin's testimony concerning the interpretation of the tracings and the descent of the baby through the birth canal conflicts with Dr. Miller's. Both witnesses' testimony on these points was coherent and credible. To be clear, the mere existence of a conflict of opinion between the witnesses does not require a finding for the defense. Obviously, one expert's opinion could correctly represent the standard of care, while another's beliefs might not. The problem for Plaintiffs, however, is that while Dr. Schifrin testified in detail concerning why he thought the data showed the baby was in danger, he never testified that the standard of care would have required a competent OB-GYN or other medical personnel to interpret the data as he did. Moreover, it appears unlikely he could so testify. He acknowledged, for example, that the Council on Resident Education in Obstetrics and Gynecology (CREOG) disagreed with him, that CREOG was of the opinion that early decelerations were benign, and that according to CREOG fetal heart monitoring was not predictive of injury. Dr. Schifrin agreed such monitoring does not determine whether injury has occurred, but disagreed with CREOG, testifying that fetal monitoring can be predictive of injury.

In short, no evidence establishes that Dr. Schifrin's interpretation would be regarded as standard, and Dr. Miller's as exceptional or unreliable. If anything, the evidence is to the contrary: On the points he testified about, Dr. Schifrin appears to be a maverick within the medical community. There is no evidence his views on the matters he testified about accurately ...

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