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Vandyke v. Foulk

Court of Appeals of Tennessee, Knoxville

September 18, 2017


          Session March 23, 2017

         Appeal from the Circuit Court for Washington County No. 30591 Jean A. Stanley, Judge

         This is a medical malpractice action[1] in which the plaintiff filed suit against the hospital and her physicians following the death of her newborn son hours after his delivery. The case proceeded to a jury trial. The jury found in favor of the defendants. Following the denial of post-trial motions, the plaintiff appeals, claiming the trial court erred in excluding testimony and when it gave a jury instruction on the sudden emergency doctrine. We reverse and remand for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

          Mark T. Hurt, Abingdon, Virginia, for the appellant, Brittany Nicole VanDyke.

          Charles T. Herndon, IV, Elizabeth M. Hutton, and Stephanie E. Stuart, Johnson City, Tennessee, for the appellees, Medical Education Assistance Corporation, Brooke Elliott Foulk, M.D., and Howard Ernest Herrell, M.D.

          Frank H. Anderson, Jr., Johnson City, Tennessee, for the appellee, Mountain States Health Alliance d/b/a Johnson City Medical Center.

          John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr. and Thomas R. Frierson, JJ., joined.



         I. BACKGROUND

         On February 24, 2011, Brittany Nicole VanDyke ("Plaintiff") presented to Clinch Valley Medical Center ("Clinch Valley") in Richlands, Virginia with signs of premature labor. At that time, Plaintiff was 24 weeks pregnant with dichorionic diamniotic twins, [2]Kayleigh ("Baby A") and Kadan ("Baby B"). Plaintiff's obstetrician arranged for her transport to Mountain States Health Alliance d/b/a Johnson City Medical Center ("JCMC") in Tennessee due to the prematurity of the twins. Plaintiff was given antibiotics to treat any infections that may have caused labor or could cause further complications, steroids to aid in the development of the babies' lungs, and magnesium to slow labor prior to transport. Following her arrival at JCMC, Plaintiff was given pain medication and additional doses of antibiotics and magnesium.[3]

         The next morning, on February 25, 2011, Plaintiff was taken to the operating room for the impending delivery of her twins. Brooke Elliott Foulk, M.D., who was employed by Medical Education Assistance Corporation d/b/a University Physicians Practice Group ("Physicians Group"), served as the attending physician and was assisted by fourth-year residents, Jami Nicole Goodwin, M.D. and Rebecca C. Hobbs, [4] M.D. Dr. Goodwin delivered Baby A vaginally without incident. Baby A was then attended to by other physicians and transferred to the neonatal intensive care unit ("NICU").

         Dr. Foulk then turned her attention to Baby B, who had settled into a transverse or sideways position. Dr. Foulk manually rotated him to a head-down orientation in the birth canal, and labor continued. The fetal monitor later indicated a drop in Baby B's heart rate, necessitating prompt delivery as a result of bradycardia.[5] Dr. Foulk instructed the delivery team to page Howard Ernest Herrell, M.D., [6] also employed by Physicians Group. He arrived moments later. Drs. Foulk and Herrell assessed the situation and then proceeded to attempt an operative vaginal delivery by forceps.[7] Dr. Herrell placed the first blade without incident. He then proceeded to place the second blade while Dr. Foulk held the first. Dr. Herrell met resistance and retracted the second blade before attempting placement a second time. When his second attempt also proved unsuccessful, he retracted both blades. The delivery team then prepared for cesarean section.

         Approximately five minutes later, Drs. Foulk and Goodwin delivered Baby B, who had sustained a skull fracture and a scalp avulsion, meaning that his scalp was no longer attached but was hanging loose from the rear of his skull. Baby B was then attended to by other physicians and transferred to the NICU. He died hours later. The immediate cause of death was listed as "hemorrhagic shock"[8] with underlying causes listed as "scalp avulsion with skull fracture" and "birth trauma." William Devoe, M.D., the attending pediatrician who initially treated Baby B, later confirmed that hemorrhagic shock was a "major contributing factor" to Baby B's death.

         On February 22, 2012, Plaintiff provided pre-suit notice of a potential suit against JCMC, Physicians Group, and Drs. Foulk and Herrell (collectively "Defendants").[9] On June 22, 2012, Plaintiff filed a complaint, with an attached certificate of good faith, against Defendants, alleging medical malpractice, wrongful death, and loss of consortium. Plaintiff essentially claimed that had the defendant physicians acted in a medically reasonable manner when the fetal monitor indicated bradycardia, they would have proceeded with an emergency cesarean section and avoided the catastrophic skull and scalp injuries that caused Baby B's death. Physicians Group, on behalf of Drs. Foulk and Herrell, denied wrongdoing and claimed that the defendant physicians conformed to the standard of care for physicians in their specialty of obstetrics and exercised the degree of skill and care ordinarily possessed and exercised by physicians of good standing throughout the labor and delivery of the twins. Physicians Group further claimed that the physicians did not proximately cause harm or injury by any alleged errors or omissions.

         Likewise, JCMC denied wrongdoing and further claimed that it was not vicariously liable for the actions of Drs. Foulk and Herrell, who were not hospital employees. JCMC also alleged its employees or agents complied with the applicable standard of care throughout the labor and delivery of the twins. JCMC later filed a motion for summary judgment, citing numerous forms signed by Plaintiff indicating her understanding that the physicians practicing at JCMC were not employed by JCMC. One such form provided, in pertinent part, as follows:

RELATIONSHIP BETWEEN HOSPITAL AND PHYSICIANS/ALLIED HEALTH PROFESSIONALS: I have been informed and understand that the treating physicians . . . are not employees or agents, express or implied, in any manner of the hospital, but are independent practitioners having permission to practice at the hospital and make medical decisions as clinically determined by them.
As such, I have been informed and understand that I may be treated in the Emergency Department or the hospital by any physician or health professional of my choice who may have clinical privileges to practice at this hospital. That physician or allied health professional, and not the hospital, will be responsible for directing the patient's care and shall exercise their own independent medical judgment during my care and the hospital does not control their treatment decisions.

         Plaintiff responded, in pertinent part, by claiming that genuine issues of material fact remained regarding whether she received meaningful notice of the relationship between the hospital and defendant physicians under the circumstances presented and whether she had an adequate opportunity to make an informed choice. The court ultimately denied summary judgment, finding that there was

evidence creating genuine issues of material fact as to whether: 1) JCMC held itself out to the public as providing medical services; 2) [Plaintiff] looked to JCMC rather than to individual healthcare providers at JCMC, including [the defendant physicians], to perform those services for her and her twins; and 3) [Plaintiff] accepted those services in the reasonable belief that the services were being provided by JCMC or its employees. While the Court finds that there was evidence that JCMC provided written notice to [Plaintiff] disavowing the existence of any employment or agency relationship with any physicians who would be treating her, the Court also finds that there are genuine issues of material fact as to whether that written notice constituted meaningful notice to [Plaintiff] in the circumstances in light of the evidence in the parties' submissions . . . .

         Defendants filed a motion in limine before trial seeking to exclude testimony elicited during the depositions of Drs. Goodwin and Hobbs. The testimony at issue concerned an approximate 30-second discussion between Drs. Foulk, Goodwin, and Hobbs in which Drs. Goodwin and Hobbs suggested that an emergency cesarean section was warranted. This discussion occurred prior to Dr. Herrell's arrival and the decision to proceed with delivery by forceps. The trial court excluded the testimony, finding that Drs. Goodwin and Hobbs were not qualified to give standard of care opinion testimony because they were not licensed physicians at the time. Further, the court granted Defendants' request to include a jury instruction on the "sudden emergency" doctrine.

         The case then proceeded to a six-day jury trial, commencing on August 25, 2015, during which the jury was presented with a "battle of the experts." John Mercer Thorp, Jr., M.D., a professor of obstetrics and gynecology at the University of North Carolina's School of Medicine, opined that an emergency cesarean section was indicated at the time of bradycardia and that the decision to attempt an operative delivery by forceps and the actual attempt of delivery by forceps was a breach of the applicable standard of care due to Baby B's positioning in the birth canal, his prematurity, and the fact that Plaintiff was no longer fully dilated following delivery of Baby A. He believed Baby B died as a direct result of the injuries sustained during the attempted delivery by forceps. He further claimed that bradycardia was not an unexpected occurrence as evidenced by the fact that Plaintiff was taken to the operating room prior to delivery. He noted that the proper resources, including anesthesia, were readily available in the room to conduct a cesarean section because such an occurrence was anticipated. He agreed that neurological damage could occur within eight to ten minutes of bradycardia but claimed that the defendant physicians could have waited approximately three to four minutes to determine whether Baby B was truly bradycardic or simply experiencing a deceleration in his heart rate.

         Michael Aaron Hawkins, M.D., a practicing general obstetrician and gynecologist in Dixon, Tennessee, claimed that Baby B's bradycardia necessitated immediate delivery and that the defendant physicians chose the fastest route using a method accepted in the medical community. He described the situation as an emergency and claimed that the defendant physicians did not deviate from the applicable standard of care by attempting delivery by forceps. He noted that a cesarean section is a major operation with risks of severe complications. He believed that the attempted delivery by forceps was a "great idea and a great option to expedite delivery." He explained that the placement of the second blade likely caused an initial laceration, which was extended when Baby B was removed during the cesarean section. He further alleged that Baby B's bradycardia was likely caused by placental abruption, which he claimed was not necessarily "an automatic" occurrence but was a "possibility" in twin deliveries that necessitated advanced mental preparation. He claimed that blood obtained from the umbilical cord indicated that Baby B was "severely acidotic and because of [his] extreme prematurity, [he was] even at further risk for a bad outcome" prior to the attempted delivery.

         Brian Smith, M.D., a professor at Duke University School of Medicine, opined that Baby B had an approximate 66 percent chance of survival had he not sustained injuries during the attempted delivery, while Scott Osborn Guthrie, M.D., a neonatologist and assistant professor at Vanderbilt Medical School, opined that Baby B only had a 38 to 42 percent chance of survival as indicated by, inter alia, his prematurity, male gender, Caucasian race, birth order, and hospital location, factors known for affecting an infant's chance of survival. Dr. Guthrie further claimed that Baby B also experienced distress during labor prior to the failed extraction. His opinion was based upon the laboratory values drawn from blood obtained from the umbilical cord after delivery. He believed the blood's base deficit value indicated that Baby B was in distress at 9:47 a.m., two minutes prior to the drop in heart rate at 9:49 and three minutes prior to the failed extraction by forceps at 9:50. He alleged that the fetal distress experienced prior to the failed extraction was a "huge contributing factor" in Baby B's failure to survive.

         Drs. Foulk, Herrell, Goodwin, and Hobbs also testified, as pertinent to this appeal, concerning their recollection of the labor and delivery of Baby B. Dr. Herrell stated that he entered the operating room after Baby B was bradycardic. He recalled immediately putting on his gown and gloves as he listened to Baby B's heartrate. He examined Plaintiff and found that she was fully dilated and that Baby B was in what he considered a proper position for an operative delivery by forceps. He described a "bigger sense of urgency" among the staff and stated that the situation presented was "an emergency of all emergencies." He stated, "I don't know the words that were used, but the consensus was that if I thought we could do this, let's get it done." He provided that he later confirmed that Baby B was bradycardic as a result of placental abruption, which he characterized as a "catastrophic emergency that was threatening [Baby B's] life."

         Dr. Herrell testified that he was a third-year attending at the time of Plaintiff's delivery, while Dr. Foulk was a first-year attending. He explained that she likely deferred to him for placement of the forceps because of his two additional years of training. He recalled that the forceps were ready and available on the surgical table at the time of his arrival. He confirmed that the use of forceps in this case was unusual due to Baby B's positioning in the birth canal and further explained that he had only performed a forceps delivery on one other set of premature twins at a gestational age of 32 weeks. He agreed that a 23 to 24-week infant has delicate skin.

         Dr. Foulk testified that Plaintiff was at risk for complications due to the fact that she was carrying twins, had hypertension, was obese, and had a history of insulin resistance. She stated, "[W]e know with twin pregnancy anything you can imagine going wrong or scary in pregnancy is times a thousand." She noted that Plaintiff was either 24 weeks and 2 days or 23 weeks and 5 days along in her pregnancy, depending upon whether the ultrasound or the last menstrual period was used as the marker. She explained, "[W]e were hoping for the best and worried [about] what could happen." She recalled that Plaintiff desired a vaginal delivery, if possible once labor was imminent. She explained that the type of cesarean section required was a "much more serious procedure" than what could be performed for a term pregnancy. She recalled that she remained in the hospital after her initial consultation with Plaintiff because "[a]nything that high risk, you don't want to [not be] there, something could happen."

         Dr. Foulk testified that Plaintiff was moved to the operating room once they discovered that delivery was imminent. She explained,

This is not just going to be [a] simple delivery. We knew we needed the operating room. We knew we need[ed] ultrasound. Anesthesia. Two NICU ...

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