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Colleen Kaznowski et al v. Rita Biesen-Bradley et al

November 30, 2012

COLLEEN KAZNOWSKI ET AL., PLAINTIFFS AND RESPONDENTS,
v.
RITA BIESEN-BRADLEY ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 07AS00741)

The opinion of the court was delivered by: Murray , J.

Kaznowski v. Biesen-Bradley

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this medical malpractice action following premature delivery of twins, the jury found that the obstetrician, defendant Dr. Rita Biesen-Bradley, was not negligent, but her medical corporation, defendant Rita Biesen-Bradley, M.D., Inc., or RBBI, was negligent. RBBI appeals from the judgment in favor of plaintiffs Colleen Kaznowski and her twin children (referred to herein as twin A and twin B).*fn1 RBBI contends it cannot be vicariously liable for conduct of its employee, Dr. Biesen-Bradley, because the jury found Dr. Biesen-Bradley not negligent, and no expert evidence supports an independent theory of liability against RBBI. We conclude that, although the focus of plaintiffs' case was on Dr. Biesen-Bradley, substantial evidence supports liability of RBBI for conduct of other agents of the medical corporation. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2007, plaintiffs filed a complaint alleging medical malpractice, professional negligence, intentional misrepresentation, negligent misrepresentation, negligent infliction of emotional distress, and loss of consortium.

Evidence at trial included the following:

In July 2005, plaintiff became pregnant through in-vitro fertilization. Plaintiff had high risk factors because of her age and medical history.

Plaintiff's obstetrician, Dr. Biesen-Bradley, practices as the only member of a professional medical corporation, RBBI.

On October 28, 2005,*fn2 an ultrasound showed plaintiff had an "incompetent cervix" or "cervical insufficiency," meaning her cervix was prematurely shortening, which indicated a risk of premature delivery. Plaintiff was hospitalized.

On October 30, 2005, Dr. Biesen-Bradley performed an urgent medical procedure called a modified Shirodkar cerclage -- placing a suture around the plaintiff's cervix to cinch it closed. During the procedure, Dr. Biesen-Bradley identified a tear or thinning in the cervical tissue but did not tell plaintiff. Dr. Biesen-Bradley did not stitch the tear because she believed it was in the mucus membrane (mucosa) rather than in the substance of the cervix (stroma), such that stitching the tear would create an unnecessary risk of the cerclage failing.

Plaintiffs' expert, Dr. Jeffrey Phelan, testified that the tear Dr. Biesen-Bradley had identified occurred in the substance of the cervix (stroma) rather than the mucosa, and it should have been stitched.

Two weeks after returning home, plaintiff began leaking fluid. The leaking liquid did not smell like urine. Plaintiff testified that she believed she first called RBBI about leaking fluid on November 15 -- three days before plaintiff's November 18 birthday. She called RBBI during office hours but, as usual, "got [RBBI's] answering machine." Plaintiff left a message, but no one at RBBI called her back. She called twice on November 16 and left voice mail messages. Her husband also left a voice mail message on November 16 and requested a callback. On November 17, plaintiff, her husband, and her mother called RBBI several times during office hours beginning with plaintiff's call in the morning before 8:30 a.m. Each of them left messages about plaintiff's leaking fluid and asked for a callback. While plaintiff and her husband left voice mail messages on November 17, plaintiff's mother testified that she actually spoke to a person twice sometime during that day. She informed the person with whom she spoke that plaintiff was leaking fluid and Dr. Biesen-Bradley had told them to contact the office if there were any problems. No one returned their calls.

At 5:07 p.m. on November 17, plaintiff again called RBBI. The RBBI office closes at 3:00 p.m., so she was referred to RBBI's exchange service and left a message. RBBI's records show that a message from a patient who was five months' pregnant and who reported a "strange discharge" was relayed to the "on-call" doctor at 5:08 p.m.

The on-call doctor at the time was Dr. Freed.*fn3 Plaintiff testified a Dr. Freed came into her room with Dr. Biesen-Bradley on October 29, before Dr. Biesen-Bradley performed the cerclage the following day. At that time, Dr. Biesen-Bradley said "she wouldn't be able to treat me but that this doctor would treat me." Dr. Biesen-Bradley did not explain, and plaintiff never understood why Dr. Freed was there. Plaintiff had a discussion with Dr. Freed at that time, which she described as "small talk." Dr. Freed introduced himself by name and said he did not want to be there on his day off. He also said he was there for Dr. Biesen-Bradley.

Dr. Biesen-Bradley testified that Dr. Freed was not present when she visited plaintiff. She did not ask him to see plaintiff and had not told him about plaintiff or plaintiff's care, but he was "on call for our group" and on-call doctors make hospital rounds. Dr. Biesen-Bradley acknowledged that Dr. Freed made notes on the medical record for October 29 and issued an order that day that is reflected in the records.

Dr. Freed did not testify at trial. Plaintiff testified she received a call within a half-hour after leaving the November 17 message on Dr. Biesen-Bradley's exchange service. The call was from a male who did not identify himself, but who said he was the doctor on call for Dr. Biesen-Bradley. As we have noted, the on-call doctor was Dr. Freed. Plaintiff told him about the cerclage procedure she had undergone and told him she was leaking fluid. She asked if she should go to the emergency room. He said she did not need to go to the emergency room, but that she should go to Dr. Biesen-Bradley's office the next morning.

The following morning, November 18 at 9:00 a.m., plaintiff went to RBBI's office. Nurse Rita Shapiro was expecting plaintiff. Plaintiff testified she reported to Nurse Shapiro that she had been feeling wet for more than 24 hours. Nurse Shapiro examined plaintiff and saw that a bulging bag of liquid had slipped from the cervix (i.e., a prolapse of the amniotic sac into the vagina). Nurse Shapiro phoned Dr. Biesen-Bradley and then called an ambulance to take plaintiff to the hospital, where she was hospitalized around 11:00 a.m. At the hospital, plaintiff was kept in an upside-down position (a steep Trendelenburg) in an effort to cause the prolapsed membranes to retreat. The hospital began antibiotics immediately as a precaution, but did not immediately test the amniotic fluid for infection.

Infection complicates treatment. As will appear, there was conflicting evidence as to whether plaintiff had any infection when she was admitted to the hospital on November 18.

On November 22, Dr. Biesen-Bradley went on vacation for six days. Dr. Les Heddleston, a perinatologist, testified as a nonretained expert. He stated that he had first examined plaintiff in the hospital on November 22. He planned to refer plaintiff to Dr. Michael Katz for a rescue abdominal cerclage. However, Dr. Katz was willing to perform the procedure only if the amniotic fluid was not infected. On November 23, Dr. Heddleston performed an amniocentesis, which showed an early infection in the amniotic sac of twin A. The plan of care was to continue with rotating antibiotics and, if twin A appeared to be delivering spontaneously, the doctor would try to be prepared to deliver that baby and then put in another cerclage for the second baby.

When Dr. Biesen-Bradley returned from vacation on November 28, plaintiff fired her. Plaintiff asked Dr. Heddleston to take over.

The infection that began in twin A ultimately progressed to twin B and to plaintiff herself, precipitating premature delivery by Cesarean section on December 27 and resulting in medical complications for the twins. Both twins were born with intra-amniotic infection syndrome (IAIS). Plaintiff presented extensive evidence of damages.

Regarding breach of the standard of care and causation, plaintiffs' retained obstetrics expert, Dr. Jeffrey Phelan, reviewed the medical records and depositions and opined that on November 17, plaintiff had "weeping of the membranes," indicating that the amniotic sac of twin A prolapsed (slipped) into the vagina, probably on November 17. A prolapse results in premature delivery. "The problem is that once the bag is exposed to the vaginal bacteria, that localized area of the bag tends to break. . . . And what happens is the bacteria move in, even if you give them antibiotics, even if you sterilize the area, they will still get a localized infection and then you will have a broken bag in about three to seven days." Dr. Phelan testified, "I think it was a fait accompli when [plaintiff] showed up on the 18th."

Dr. Phelan opined that the membranes of the amniotic sacs had not ruptured at the time plaintiff was admitted to the hospital on November 18, and she herself was not experiencing any signs of infection before her November 18 admission to the hospital. When asked if a pregnant woman can leak fluid without having a prolapse, Dr. Phelan said, "they can rupture membranes, many people call them high leaks, and not have a prolapsed bag. But when you see the weepiness, watery mucous coming out, that means the bag is coming through. And in my experience it is pretty close to 100 percent. [¶] So when she called in on the 17th, and not knowing yet when I had reviewed the records that she had had the prolapse and then they examined her in the office on the 18th, I knew on the 17th she had a prolapsed bag and that bag was at the opening. That was confirmed with the speculum exam [on November 18]. It was confirmed by subsequent examiners. [¶] So if you have a watery, mucousy discharge, and this is just perinatal safety, you need to go in and be evaluated by your doctor."

Plaintiffs' attorney asked what Dr. Phelan would have advised had he been the on-call doctor who received the message that the client was losing fluid -- so much it was filling a menstrual pad. The defense objected that the question was irrelevant, and the trial court sustained the objection. Plaintiffs' attorney then asked whether or not the on-call doctor's advice to wait until the next day was appropriate advice. The defense objected that the question was irrelevant, and the trial court, after an unreported sidebar, sustained the objection. The transcript does not reveal the reason for the rulings.

Dr. Phelan opined that during plaintiff's hospitalization from November 18 onward, plaintiff "received all appropriate care that could be provided for someone in her situation." He did not testify that plaintiff received appropriate care from November 15 through 17 when her repeated calls to RBBI were ignored and the on-call doctor told her not to go to the emergency room. Nor did he testify that the "fait accompli" related back earlier than the 18th.

Dr. Phelan opined the tearing of the stitch and the failure to correct it contributed to or caused the premature delivery of the twins.

Dr. William Patrick Joseph, plaintiffs' retained expert in infectious diseases, testified it was not possible to say exactly when the infection started, but he opined it was already present when plaintiff was admitted to the hospital on November 18, and from his experience, that type of infection usually becomes manifest in one or two days, so he suspected that the infection started November 16 or 17. Usually an infection occurs after a breakdown of the cervix; it is not usual that an infection causes a breakdown of the cervix. He opined plaintiff had cervical incompetence but no infection on October 28. After she left the hospital on October 31, she developed IAIS inside the amniotic sac of first one, and then both, twins.

Dr. Joseph stated it was "clinically apparent" (i.e., by plaintiff's elevated white blood count, elevated pulse rate, and abdominal tenderness) that the infection was present in plaintiff and twin A when plaintiff was admitted to the hospital on November 18. If the cervix membranes that are supposed to be up inside the uterus "either prolapse or bulge through or get exposed to vaginal bacteria, the bacteria will actually penetrate through the outside and cause an infection. [¶] So the most common cause of intra[-]amniotic infection is vaginal bacteria going right up through the cervix or touching the membranes if they're prolapsing through, and bacteria will penetrate the membranes. [¶] So with the whole picture of [plaintiff], that is she clearly had a proven infection later on, and on the 18th she had membranes that were not supposed to be exposed to vaginal bacteria under normal circumstances, that represents the usual cause of this infection." The fact that plaintiff had leaking fluid was not a diagnostic factor but was a risk factor for infection.

Dr. Joseph was aware the perinatologist opined plaintiff was not leaking amniotic fluid. Dr. Joseph testified:

"Q. If bacteria penetrates the amniotic sac and causes inflammation that results in compromising the sac, is there any length of time, standard length of time that you're aware of that that occurs? How long does it take to compromise the sac?

"A. [Dr. Joseph:] I don't know. In my experience, the incubation period, that is from the time the bacteria entered the sac until mom gets tenderness and mom gets a high white count is one to two days. Now, what happens after that really depends upon the circumstances of treatment. [¶] In this case, [plaintiff] had access to hospital care, was put in a hospital right away and so her sequence of events, that is the course of her infection, would be different from someone who did not have access to health care."

Dr. Joseph opined plaintiff's infection was controlled during her hospital stay, in that it did not get worse. However, things changed about five weeks later. The infection got worse despite the antibiotic therapy.

Dr. Joseph opined plaintiff either had "an explosion or a worsening of her underlying infection or the original infection went away and she got a second infection because the membranes were still exposed. That's not possible to say." At that point, plaintiff's health was in jeopardy.

Dr. Joseph had no opinion on whether the infection necessitated the delivery on December 27, but he opined to a degree of reasonable medical probability or medical certainty that the infection that spread to twin B and to plaintiff was the result of the prolapsed membranes being exposed to vaginal bacteria.

Defense expert, Dr. Ruth Haskins, testified cerclages fail even in the best of hands. Dr. Heddleston agreed.

Dr. Haskins testified that Dr. Biesen-Bradley had acted within the standard of care for an obstetrician/gynecologist. Dr. Haskins would not have sent plaintiff to the emergency room on November 17 had she been the on-call doctor because leaking fluid in a pregnant woman is usually urine. However, Dr. Haskins admitted you cannot tell over the phone whether the leaking fluid is urine or vaginal transudate or amniotic fluid. When asked if it would be appropriate for a doctor to call back a patient who reported fluid leakage for several days, Dr. Haskins said, "That's a difficult question to answer. Most calls come during the work day and are triaged by the office staff and would land on the primary physician's desk and a call would be made in a reasonable period of time, especially if a patient called two days in a row with the same complaint and the physician is aware that that complaint, documented, came to the office two days in a row 'I am still having this problem.' "

Defense obstetrics expert, Dr. Maurice Druzin, opined plaintiff received excellent care.

Dr. Biesen-Bradley also testified that leaking fluid may be urine, but she would have told a patient in plaintiff's situation to go directly to the hospital, because one cannot tell whether it is urine or amniotic fluid without checking it.

On August 11, 2009, the jury returned a special verdict finding:

1. Dr. Biesen-Bradley was not negligent, but RBBI ...


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