Snow et al v. United States of America

Filing 57

FINDINGS OF FACT, AND VERDICT. Because Plaintiffs have failed to prove by a preponderance of evidence that Defendant breached the standard of care, the Court renders its verdict in favor of Defendant. Defendant shall promptly submit a proposed order and judgment, in accordance with this District's Electronic Case Filing Administrative Policies and Procedures Manual, § 2(h). Signed by Judge Larry Alan Burns on 9/23/11.(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER L. SNOW, a Minor by
and through his Guardian ad Litem,
PAULA GRISWOLD; TANYA SNOW, an
individual; and TIMOTHY SNOW, an
individual,

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CASE NO. 09CV0679-LAB (WMc)
FINDINGS OF FACT, AND
VERDICT

Plaintiffs,
vs.

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UNITED STATES OF AMERICA,
Defendant.

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Plaintiffs Christopher, Tanya, and Timothy Snow brought this medical malpractice

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action under the Federal Tort Claims Act (FTCA). They allege that during labor and delivery

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at the Naval Medical Center, San Diego (NMCSD), medical personnel failed to act within the

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standard of care, resulting in injuries to Christopher Snow. The two specifically identified

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medical personnel are Nurse Midwife Elizabeth Schwartz and Dr. Thomas Gaylord, an OB-

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GYN who oversaw portions of the labor and who delivered Christopher Snow by Caesarean

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section. The complaint alleges that Christopher Snow now suffers from cerebral palsy and

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other disorders as a result of his injuries.

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The Court held a bench trial. After hearing evidence from both parties, reviewing the

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briefing supporting the parties’ closing arguments, then hearing closing arguments, the Court

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now makes its findings of fact and renders its verdict. As discussed more fully below, the
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Court finds the medical personnel at NMCSD acted within the appropriate standard of care.

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The Court therefore does not reach the question of causation, and the question of damages

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need not be tried.

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I.

Discussion

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Under the FTCA, the United States can (within certain limits) be sued to the same

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extent as a private individual could be. 28 U.S.C. § 2674. Where, as here, plaintiffs bring

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their claims under the FTCA, the Court applies the law of the state in which the alleged tort

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occurred. See Toomer v. United States, 615 F.3d 1233, 1239 (9th Cir. 2010). Here, that

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means the Court applies California law.

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“In California, medical personnel are held in both diagnosis and treatment to the

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degree of knowledge and skill ordinarily possessed and exercised by members of their

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profession in similar circumstances.” Hutchinson v. United States, 838 F.2d 390, 392 (9th

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Cir. 1988). Except where medical treatment required is within the common knowledge of

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laypeople, the standard of care must be proved by expert testimony. Id. Plaintiffs must

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prove by a preponderance of the evidence that Defendant’s medical personnel failed to act

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with the required medical standard of care, and that their negligence caused Christopher

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Snow’s medical disorders. See Woods v. United States, 720 F.2d 1451, 1452 (9th Cir.

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1983) (citing trial court’s findings).

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A.

Evidence of Standard of Care

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Here, Plaintiffs offered the testimony of Dr. Barry Schifrin concerning the labor and

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delivery. (Plaintiff’s other expert witnesses testified concerning injury and causation.) His

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testimony focused on available measurements which, he concluded, a competent OB-GYN

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would know that the labor was not progressing normally and the baby was in peril. His

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testimony focused on the fetal heart monitor tracings and what they showed concerning

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possible danger to the baby. Dr. Schifrin in detail discussed his interpretations of the fetal

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monitoring strips beginning at page 3011, continuing through page 3013, then moving to

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page 3018 and finally page 3025; shortly after this, the decision to perform the C-section was

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made.
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Dr. Schifrin, referring to page 2971 of the tracings, identified the baby’s base heartrate

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as being 150, and used this as the reference when discussing whether the heartrate had

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returned to normal after contractions. Beginning at page 3011 (approximately 5:22 a.m.),

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he identified diminished variability. Looking at the monitoring strip, he testified that it

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demonstrated interference with blood flow and lack of availability of oxygen.

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In the next tracing (covering roughly 5:30 to 5:38 a.m.), he testified there was no

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return to the baseline between four contractions, that this was not caused by medication, and

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that After that, he identified a failure of the baby’s heart rate to return to the baseline

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between contractions. He testified this was not caused by medication, and that (around 6:00

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a.m.) there was a need to deal with decelerations. Terbutaline was administered, which

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helped reduce uterine activity, but he testified the tracings showed the baby was not

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recovering between contractions. At this point, the heart rate went up to 180.

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Beginning on page 3025 of the tracings, Dr. Schifrin identified decelerations, then

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persistent deceleration on page 3026. Shortly after this, he testified, the decision was made

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to delivery the baby by C-section. In his opinion, this decision was made about an hour too

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late. He believes the baby sustained an injury around 7:15 a.m.

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Plaintiffs’ evidence also suggested that the baby was not descending through the birth

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canal normally, and remained at station -2 from approximately 4:00 until 7:15 a.m. Progress

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of one centimeter was noted, which their witnesses attributed to swelling of the baby’s head.

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After delivery, however, the baby’s fontanelles were soft and flat, with no evidence of

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swelling. Dr. David Miller testified for the Defendant that there was no significance to the

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baby’s not descending until the second, active stage of labor, and that no medical authority

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teaches that head compression warrants intervention.

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On the stand, Dr. Miller reviewed pages 3009 through 3026, reaching different

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conclusions than Dr. Schifrin. Beginning at page 3009, he testified the tracings, including

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variability, were within the normal range. Beginning at page 3013, he said nothing would

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have prevented a doctor from calling for a C-section, though it was not required. Reviewing

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pages 3014 through 3024, he testified the labor appeared to be progressing normally, and
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the baby appeared healthy. He had no concern for the baby’s health based on these

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tracings.

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decelerations and normal variability. Then on page 3025 (7:14 a.m.), with the mother dilated

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to 9 cm and the baby at -1 station, he said it would be appropriate to carry out a C-section

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quickly, but not on a “crash” basis. Based on the tracing at page 3026, he said the C-section

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should have been done “as rapidly as safely possible,” which appears to have been what

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was actually done. He also testified he thought the care given in this case was very good.

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Obviously, Dr. Schifrin’s testimony concerning the interpretation of the tracings and

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the descent of the baby through the birth canal conflicts with Dr. Miller’s. Both witnesses’

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testimony on these points was coherent and credible. To be clear, the mere existence of a

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conflict of opinion between the witnesses does not require a finding for the defense.

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Obviously, one expert’s opinion could correctly represent the standard of care, while

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another’s beliefs might not. The problem for Plaintiffs, however, is that while Dr. Schifrin

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testified in detail concerning why he thought the data showed the baby was in danger, he

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never testified that the standard of care would have required a competent OB-GYN or other

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medical personnel to interpret the data as he did. Moreover, it appears unlikely he could

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so testify. He acknowledged, for example, that the Council on Resident Education in

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Obstetrics and Gynecology (CREOG) disagreed with him, that CREOG was of the opinion

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that early decelerations were benign, and that according to CREOG fetal heart monitoring

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was not predictive of injury. Dr. Schifrin agreed such monitoring does not determine whether

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injury has occurred, but disagreed with CREOG, testifying that fetal monitoring can be

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predictive of injury.

Beginning on page 3024, however, he identified some variation between

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In short, no evidence establishes that Dr. Schifrin’s interpretation would be regarded

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as standard, and Dr. Miller’s as exceptional or unreliable. If anything, the evidence is to the

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contrary: On the points he testified about, Dr. Schifrin appears to be a maverick within the

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medical community. There is no evidence his views on the matters he testified about

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accurately reflect the accepted standard of care.

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(discussing standard of care).
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See Hutchinson, 838 F.2d at 392

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This is not to say Dr. Schifrin’s views are wrong; it is possible they may some day

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come to be accepted as correct, and become standard. But it is not for this Court to make

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such a finding in the first instance and hold Defendant retroactively responsible. Because

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Dr. Miller’s testimony appears to represent the standard medical interpretation, or at least

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interpretations that fall within the accepted range, the Court cannot find the medical services

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at issue here fell below the standard of care.

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B.

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As secondary evidence, Plaintiffs offered four pieces of evidence suggesting that the

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medical personnel thought the situation was more serious than they were willing to admit,

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or that it had been mishandled. For reasons discussed below, the Court finds this evidence

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unconvincing.

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Secondary Evidence: What the Medical Personnel Thought

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Whether a C-Section Was Scheduled

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Tanya Snow, Tim Snow, and Paula Griswold testified that Ms. Snow was initially

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either scheduled to have a C-section or told a C-section was appropriate because of the

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baby’s size, but when she arrived at the hospital no provisions for a C-section had been

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made and she was allowed to go into labor. None of them questioned this at the time.

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While the Court accepts that a C-section might have been considered earlier, or that

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it might have been suggested or recommended, it was never scheduled. Instead, Ms. Snow

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was assigned a nurse-midwife and allowed to begin labor. Even assuming a C-section was

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thought appropriate at some point, it is clear from the medical records and other evidence

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that the prenatal care-givers had changed their minds many days before Ms. Snow entered

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the hospital to give birth. In fact, Ms. Snow was in false labor for two days, so if a C-section

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had been considered necessary, either the Snows or any of the medical personnel had

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ample time to request it.

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2.

“Crash” C-section

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Paula Griswold testified that at some point while Ms. Snow was in labor, possibly

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around 7:30 a.m., Dr. Gaylord exclaimed “We have two minutes or we’re going to lose them

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both,” which she understood to mean both mother and baby were in danger. Medical
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personnel then unplugged the fetal monitors, began quickly putting equipment onto the bed

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where Ms. Snow was lying, and quickly wheeled her (in her bed) to the delivery room. Ms.

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Snow, though she was under the influence of medication at the time, recalled similar events.

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She has only hazy memories of the delivery itself. Mr. Snow was not in the room, but was

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told to put on scrubs and go to the delivery room, which he did quickly. He testified the

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medical personnel appeared to be in a hurry to get his wife ready for the C-section.

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While Ms. Griswold was certain Dr. Gaylord had made such a remark, Dr. Gaylord

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testified he never said anything like this. He testified that such a remark would have been

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highly unusual and he would have remembered making it. Instead, he testified (without

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objection) that he believed someone in the room may have made the remark that two

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personnel would be lost due to a shift change if the C-section wasn’t begun quickly.

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Dr. Gaylord also distinguished between an “emergency” C-section (unplanned and

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performed reasonably quickly) and a “crash” C-section (urgent, and performed as quickly as

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possible). He testified this C-section was the former, not the latter. While other witnesses

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questioned whether there was any distinction between a “crash” and an emergency C-

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section, the factual background tends to corroborate Dr. Gaylord’s explanations. Even

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assuming Christopher Snow’s life was in immediate danger, there is no evidence anyone

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thought Tanya Snow’s life was equally in danger. There would thus have been no reason

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why Dr. Gaylord or anyone of the other medical personnel would have said so. In addition,

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the evidence suggests no one thought a C-section had to be performed within two minutes;

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in fact, it was completed approximately 20 minutes later. The Court finds the remark about

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“two minutes or we’re going to lose them both” therefore cannot reasonably have referred

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to mother and baby.

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3.

NICU Personnel

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Plaintiffs point out the Neonatal Intensive Care Unit (NICU) staff was in attendance,

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and they argue this meant the medical personnel knew they had made some kind of error

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and expected Christopher to be born injured. Dr. Gaylord referred to these personnel as the

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high-risk team. No evidence was offered to show that the presence of NICU personnel
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means medical personnel have made an error. The explanation that their presence was

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precautionary appears reasonable, and has not been seriously challenged.

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Treatment Early in Labor

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Dr. Schifrin pointed out Nurse-Midwife Schwartz had taken steps to slow labor. In his

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view, this showed she and Dr. Gaylord (whom she was consulting) knew the baby was in

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distress. Dr. Miller characterized these as conservative measures, and this appears to be

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a reasonable explanation. Even accepting this as true, it is unremarkable. The evidence

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makes clear that mother and baby were being monitored so that labor could be managed,

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which is what was happening.

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There is no reason to interpret these measures as

expressions of alarm.

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C.

Causation

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Because the Court finds Defendant’s medical personnel met the standard of care, it

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need not reach the question of whether the disorders Christopher Snow suffers from were

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caused by anything they did wrong. It is, however, worth noting that this is not a case where

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the nature of injuries bespeaks medical negligence. See, e.g., Zavala v. Board of Trustees,

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16 Cal. App. 4th 1755, 1764–65 (Cal. App. 6 Dist. 1993) (“The doctrine of res ipsa loquitur

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is applicable only where the injury upon which the action is based is of the kind which

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ordinarily does not occur in the absence of negligence.”) (citing Ybarra v. Spangard, 25

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Cal.2d 486, 489 (1944)). Dr. Ronald Gabriel, for example, testifying for Plaintiffs, said

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cerebral palsy can be caused by a number of things, and that distress during birth is only

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one possible cause.

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III.

Conclusion and Order

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Because Plaintiffs have failed to prove by a preponderance of evidence that

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Defendant breached the standard of care, the Court renders its verdict in favor of Defendant.

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Defendant shall promptly submit a proposed order and judgment, in accordance with

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this District’s Electronic Case Filing Administrative Policies and Procedures Manual, § 2(h).

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IT IS SO ORDERED.
DATED: September 23, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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