Ames, A. v. Gallagher, J. ( 2018 )

J-A23022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANGELA AMES AND DAVID AMES, : IN THE SUPERIOR COURT OF
HUSBAND AND WIFE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 69 WDA 2018
JENNFIER GALLAGHER, D.O., :
PITTSBURGH GYNOB, INC., AND :
WEST PENN ALLEGHENY HEALTH :
SYSTEM, INC., A/K/A THE WESTERN :
PENNSYLVANIA HOSPITAL :
Appeal from the Judgment Entered February 13, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-15-012655
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 04, 2018
Appellants, Angela Ames (“Angela”) and David Ames, Husband and
Wife, appeal from the judgment entered in favor of Appellees on February 13,
2018, in the Court of Common Pleas of Allegheny County.1 We affirm.
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1Appellants purport to appeal from the trial court’s December 11, 2017 order
denying their post-trial motion; however, “an appeal properly lies from the
entry of judgment, not from the denial of post-trial motions.” Century
Indemnity Company v. OneBeacon Insurance Company, 173 A.3d 784,
788 n.1 (Pa. Super. 2017). We have amended the caption accordingly.
J-A23022-18
This is a medical malpractice case involving Angela’s development of
uterine atony2 after giving birth to her son. The claim does not involve the
child, but is made solely regarding the hysterectomy performed on Angela
following the child’s birth and Angela’s ensuing inability to bear children. The
primary issue of contention is the timeliness of a Caesarean section (“C-
section”) performed by Appellee, obstetrician Jennifer Gallagher (“Gallagher”)
of the Appellee Pittsburgh GYNOB, Inc. practice, collectively (“Doctors”).3
The record reflects the following facts in this case. On July 26, 2013, at
approximately 5:00 a.m., Angela was admitted to West Penn Hospital in active
labor and was dilated to five centimeters. N.T., 5/11/17, at 17. Gallagher
was the attending obstetrician. N.T., 5/10-11/17, at 130-131. By 2:45 p.m.,
Angela had progressed to eight centimeters dilated. N.T., 5/11/17, at 17. At
an exam performed at 4:30 p.m., Gallagher reviewed with Appellants her
consideration of rupturing Angela’s membranes because there was no
advancement in dilation. N.T., 5/10-11/17, at 143. Appellants deferred on
that suggestion, but Gallagher’s notations reflect her intent to rupture the
membranes at the next examination if they had not ruptured spontaneously.
____________________________________________
2 Uterine atony is a condition in which the uterus fails to contract following
childbirth. N.T., 5/11/18, at 83; N.T., 5/10-11/18, at 178.
3 By order entered April 10, 2017, the trial court granted the motion for
summary judgment filed by West Penn Allegheny Health System, Inc. a/k/a
The Western Pennsylvania Hospital and dismissed West Penn Allegheny Health
System, Inc. a/k/a The Western Pennsylvania Hospital, with prejudice.
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Id. at 143. After Angela’s labor failed to progress, Gallagher artificially
ruptured her membranes at 6:00 p.m. N.T., 5/10-11/17, at 144. At 7:45
p.m., Gallagher determined that Angela was eight to nine centimeters dilated,
and that Angela had become more uncomfortable. Id. at 145. Gallagher then
determined that
because we had not seen much significant change I ha[d] to do
something to more actively manage this labor. I need[ed] to know
whether this is adequate or not and at this point I want to place
that [intrauterine pressure catheter (“IUPC”)] so that I can
determine whether there is a good labor.
Id. at 145. The IUPC was placed at 8:30 p.m. Id. at 147. Gallagher also
ordered augmentation with Pitocin. Id. Based on the IUPC measurements,
Angela did not have an adequate contraction pattern. Id. at 148. Gallagher
explained:
Again, the importance of adequate here is that it is not anything
other than diagnosing an arrest disorder. So a woman very well
could progress through her full labor without adequate
contractions based on that scientific measurement using the IUPC,
but I cannot diagnose an arrest disorder and, therefore, know that
a C-Section is necessary at a given time without it.
Id. at 148.
On July 27, 2013, at 12:50 a.m., an examination revealed that the
Pitocin was effective in strengthening the contractions and the cervix was
completely dilated. N.T., 5/10-11/17, at 148-149. At that point, it was
determined that Angela would “labor down”, allowing the natural contractions
augmented with Pitocin “to do some of that work for her before she starts
putting in all that energy. So laboring down we know that the uterus continues
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to contract, hopefully the baby descends in a passive, maybe not with mom
pushing manner to take away some of that physical burden.” Id. at 150.
At 2:40 a.m., it was determined that Angela would start “pushing.”
N.T., 5/10-11/17, at 152. At approximately 5:00 a.m., however, labor failed
to progress and Gallagher recommended to Appellants that they proceed with
a Caesarean delivery. Id. at 152 and 153. The family was “upset” and wanted
to continue to try to have a natural birth. Id. at 153. Because mother and
baby were doing well and were not in distress, Gallagher agreed that Angela
could continue to push a little longer. Id. at 153. Labor failed to progress,
however, and at 6:00 a.m., Gallagher advised Appellants that a Caesarean
delivery was necessary. Id. at 154. Appellants agreed that Angela would
have a Caesarean delivery, and at 6:40 a.m., a Cesarean section was
performed. Id. at 155-156. The infant was delivered at approximately 7:00
a.m. N.T., 5/11/17, at 30.
Following delivery, Gallagher began to repair Angela’s uterine incision.
NT., 5/10-11/17, at 157. During this process, Gallagher noticed that the
uterus was not contracting.4 Id. As Gallagher explained, this is a serious
complication because “[i]f the uterine muscle it is [sic] not contracting or
clamping down and so the very large blood vessels that feed the uterine cavity
____________________________________________
4 Appellants’ medical expert explained that “[u]terine atony [when it occurs]
is always encountered in the third stage after the delivery of the placenta.”
N.T., 5/10/17, at 38.
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continue to bleed.” Id. at 158. Pitocin and other medications were given in
an attempt to help the uterus contract, however, the medications did not stop
the hemorrhaging. Id. at 157-159. Gallagher also used various surgical
methods to try to stop the hemorrhaging, to no avail. Id. at 159-160. A
doctor from another obstetrician’s group, Dr. Covatto, also joined the surgery
in an attempt to stop the bleeding. Id. at 160. Due to the significant blood
loss that could not be stopped, Angela was in a life-threatening condition. Id.
at 161-162. Because the conservative and surgical efforts failed to resolve
the condition, Gallagher recommended to Appellants that a hysterectomy be
performed in order to save Angela’s life. Id. at 162. Appellants agreed and
a hysterectomy was performed. Id.
A jury trial occurred from May 8, 2017, through May 12, 2017. At trial,
the Doctors offered, and the trial court accepted, the testimony of Dr. Diana
Curran (“Dr. Curran”) as an expert in obstetrics. Generally, Dr. Curran
testified that Gallagher met the standard of care and did not cause Angela’s
uterine atony. N.T., 5/11/17, at 2-84. Much of Dr. Curran’s testimony related
to Dr. Curran’s use of the terms “adequate” versus “strong” in describing the
contractions and the progress of labor. Id. Following Dr. Curran’s testimony,
Appellants’ counsel moved to strike her opinion based on their claim that Dr.
Curran’s testimony was inconsistent with regard to the strength of the
contractions. N.T., 5/10-11/17 at 118-119. Appellants argued that because
Dr. Curran testified that she was unsure of the strength of the contractions
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prior to insertion of the IUPC, such testimony was inconsistent with her
testimony that the contractions were “inadequate” throughout Angela’s labor.
Id. During argument on that issue, Doctors’ counsel pointed out that Dr.
Curran’s testimony was consistent, and he explained that “strong” and
“adequate” were two different concepts with regard to the contractions. Id.
at 120. The trial court denied Appellants’ motion to strike Dr. Curran’s
testimony. Id. at 123.
Following trial, the jury returned a verdict in favor of Doctors.
Appellants subsequently filed a motion for post-trial relief seeking a new trial,
asserting that the trial court should have struck the testimony of Dr. Curran,
or alternatively, instructed the jury to disregard her opinions on the basis
raised at trial. The trial court denied Appellants’ post-trial motion on
December 12, 2017. Appellants filed a notice of appeal on January 8, 2018.5
Both Appellants and the trial court complied with Pa.R.A.P. 1925.
Appellants present the following issues for our review:
____________________________________________
5 As noted, judgment was entered on February 13, 2018, after the notice of
appeal was filed. Pursuant to Pennsylvania Rule of Appellate Procedure 905,
Appellants’ notice of appeal shall be treated as filed after the entry of
judgment. See Pa.R.A.P. 905(a)(5) (stating, “a notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof”). This
Court has long recognized that “even though an appeal was filed prior to the
entry of judgment, it is clear that jurisdiction in appellate courts may be
perfected after an appeal notice has been filed upon the docketing of a final
judgment.” Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc.,
77 A.3d 1, 3 n.1 (Pa. Super. 2013).
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A. Whether a [p]laintiff is entitled to a new trial for the [t]rial
[c]ourt’s failure to strike the testimony of an expert who could not
testify to a reasonable degree of medical certainty.
B. Whether a [t]rial [c]ourt should grant a new trial where the [t]rial
[c]ourt fails to give a curative instruction where an expert’s
opinion lacks foundation for her testimony and she cannot testify
to a reasonable degree of medical certainty.
Appellants’ Brief at 3.
It is Appellants’ position that Angela’s Caesarean section should have
been performed at 7:45 p.m. on July 26, 2013, prior to placement of the IUPC.
Appellants’ Brief at 6. Appellants assert that prior to the insertion of the IUPC,
Angela, who had been monitored principally by obstetrical nursing staff, had
contractions that were recorded as being “strong.” Id. at 5. Appellants’
expert witness, Dr. Henry Prince (“Dr. Prince”) testified that by the time an
IUPC had been inserted, however, Angela’s uterus had lost its ability to
contract at a satisfactory level and therefore, a C-section should have been
performed earlier. Id. at 5.
The issues Appellants raise on appeal pertain to the testimony presented
by Doctors’ expert, Dr. Curran.6 Appellants contend that Dr. Curran’s
testimony that Angela’s contractions were inadequate throughout labor lacks
foundation and was not stated to a reasonable degree of medical certainty.
____________________________________________
6 Although Appellants present two separate issues in the statement of
questions involved, the argument section of their brief consists of one section
wherein Appellants address the two issue simultaneously. Although this is a
violation of Pa.R.A.P. 2119(a), we do not find waiver. Furthermore, because
Appellants’ present the issues together, we shall address them together.
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Appellants’ Brief at 6, 8. Therefore, they argue, Dr. Curran’s testimony should
have been stricken or a curative instruction issued. Id. Specifically,
Appellants assert that there was no basis or foundation in the record for Dr.
Curran’s testimony that Angela’s contractions were inadequate, and that such
testimony was contrary to the notations made by nursing staff that prior to
placement of the IUPC the contractions were “strong.” Id. at 5. As Appellants
argue:
It has consistently been [Appellants’] position that by the
time that the IUPC had been placed, [Angela] was suffering from
maternal exhaustion and her uterus’ ability to continue to contract
after such a long period of labor no longer existed. Therefore, the
IUPC data clearly indicated the need for a Caesarian section.
Id. at 8.
“The admissibility of expert testimony is soundly committed to the
discretion of the trial court, and the trial court’s decision will not be overruled
absent a ‘clear abuse of discretion.’” Hatwood v. Hosp. of the Univ. of
Pennsylvania, 55 A.3d 1229, 1239 (Pa. Super. 2012). “An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Grady v. Frito–Lay, Inc., 839 A.2d
1038, 1046 (Pa. 2003). In addition, “[t]o constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful or prejudicial
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to the complaining party.” Schuenemann v. Dreemz, LLC, 34 A.3d 94, 101
(Pa. Super. 2011).
With regard to an expert testifying to a degree of medical certainty, this
Court has explained that:
[t]o be admissible, the opinion of an expert witness must be
rendered within a reasonable degree of medical certainty.
Whether an expert’s opinion is reasonably certain must be decided
after considering the expert’s testimony in its entirety. That an
expert may have used less definite language does not render his
entire opinion speculative if at some time during his testimony he
expressed his opinion with reasonable certainty.
Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004). “Expert
testimony that does not meet the standard of reasonable degree of medical
certainty is properly excluded.” Winschel v. Jain, 925 A.2d 782, 794 (Pa.
Super. 2007).
Furthermore, “expert testimony is incompetent if it lacks an adequate
basis in fact.” Helpin v. Trustees of University of Pennsylvania, 969 A.2d
601, 617 (Pa. Super. 2009). The law provides that:
[w]hile an expert’s opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not competent
evidence. This means that expert testimony cannot be based
solely upon conjecture or surmise. Rather, an expert’s
assumptions must be based upon such facts as the jury would be
warranted in finding from the evidence.
Id. at 617 (Pa. Super. 2009) (internal citations and quotation marks omitted).
In its Pa.R.A.P. 1925(a) memorandum, the trial court stated the
following as the basis for its determintion:
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The reasons for the court’s rulings at issue on this appeal appear
at [N.T., 5/11/17, at 122-125]. The extended discussion
throughout Pages 118-[1]23 of the transcript present the full
context for the court’s decision. . . . Pursuant to Pa.R.A.P.
1925(a)(1), the court relies on its on-the-record reasons. The
court also incorporates and relies on its post-trial memorandum
... Pa.R.A.P. 1925(a)(1).
Trial Court Opinion, 1/31/18, at 2-3. The exchange referenced involved the
following discussion:
[Appellants’ Counsel]: Your Honor, thank you for entertaining a
motion that I would like to make after [Dr. Curan’s] medical
testimony. . . .
I had asked the question, . . . as to whether or not she could
testify as to how strong [Angela’s] contractions were prior to the
insertion of the IUPC, . . . . I asked her if she would be able to
testify how strong that those were prior to the insertion of the
[IUPC] and she said that she could not.
She had testified throughout, and the record will reflect this,
that she had inadequate contractions throughout her labor. So
the opinion regarding any contractions, the strength of any
contractions prior to the insertion of the [IUPC], I am making a
motion to strike that piece of opinion evidence that is being
presented by the [Doctors] in this case.
[Doctors’ Counsel]: What opinion? I don’t understand.
[Appellants’ Counsel]: That [Angela] was [sic] inadequate or did
not have strong contractions which essentially is what she is
saying prior to the insertion of the [IUPC]. My expert has testified
that by the time that the catheter was placed that the uterus was
already exhausted and that’s why you got those readings.
That is what he testified to. I think that the record will
reflect that.
[Doctors’ counsel]: Judge, [Appellants’ counsel] is mixing apples
and oranges. I think that Dr. Curran was very consistent and, in
fact, during my examination we put up a record from the nurse
that indicated at about 8:15 p.m. the contractions were strong
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comparing it to Dr. Gallagher’s 8:30 p.m. note when the IUPC
went in that there was an inadequate labor pattern.
Consistently she indicated that strong and adequate are two
different concepts. So what she said was that she cannot tell
before the IUPC went in how strong that they were, but that does
not mean that they were adequate.
THE COURT: Well, can she tell how adequate that they were
before putting in the catheter?
[Doctors’ Counsel]: She testified that she felt that the
contractions were inadequate based on the dilation that had
happened and that she was at eight, nine through that period of
time suggesting that the contractions were inadequate, and
therefore, Dr. Gallagher wanted to break the membranes, put in
the IUPC to see if what she believed to be true was true, and when
she found it, they were inadequate.
THE COURT: Then the membranes were broken and then the
catheter was put in subsequently, not at the same time?
[Appellants’ counsel]: Right. That’s the only way that you can do
it, Judge. The membranes have to be ruptured in order to put the
catheter in.
THE COURT: I know that, but I don’t think that it was ruptured
and the right next [sic] minute it was cathetered. They ruptured
it and waited to see if anything would change and then they put it
in.
[Doctors’ Counsel]: Correct.
THE COURT: The rupture was at 7:30. It was before the catheter
was put in.
[Doctors’ Counsel]: No doubt, and they had been clear that they
thought that the contractions were inadequate because that is one
way to measure the adequacy of the contractions. You put the
IUPC in and --
THE COURT: Her testimony was that the contractions were
inadequate based on the five hours of the pattern of dilation from
2:30 until like 7:30, 8:00, somewhere around there. That’s what
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your doctor, Dr. Curran’s testimony was. She based it on the
dilation, I believe, and maybe the other numbers too.
[Doctors’ counsel]: That’s right.
THE COURT: The effacement and the fetal position or station.
[Doctors’ counsel]: Regardless, the overall thing was that her
testimony was that it was within the standard of care for this labor
to progress in this fashion and Dr. Gallagher not to intervene.
[Appellants’ Counsel]: May I respond?
THE COURT: You can respond. I guess that her response is that
Dr. Curran can testify to the inadequacy based on the numbers of
the dilation and the effacement and the stations over that five-
hour period.
[Appellants’ Counsel]: Then I am seeking – for the record, I am
seeking instruction to the jury that says that specifically, ladies
and gentlemen of the jury, you are to disregard Dr. Curran’s
testimony regarding the strength of the contractions prior to the
insertion of the [IUPC].
That is the instruction that I am seeking and that is what
she said that she could not testify to to [sic] a reasonable degree
of medical certainty.
THE COURT: No. She was talking about there is a difference
between the strength and the inadequacy.
[Appellants’ Counsel]: She can argue that on close, but when I
asked her about strength, she clearly said she could not testify to
a reasonable degree of medical certainty.
[Doctors’ counsel]: But she never said that strength had anything
to do -- he is confusing his facts with our position.
THE COURT: Right. I think that strength and adequacy are two
different things and I think that Dr. Curran was harping on
inadequacy and not strength.
[Doctors’ Counsel]: That’s right, Judge. I don’t think that she
ever said one way or the other. She just said that the nurses said
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that they are strong and I am not -- I can’t say whether or not
they were. I am just saying that they were inadequate.
THE COURT: And she based that on that five hours preceding?
[Doctors’ Counsel]: Yes.
***
THE COURT: [Appellants’ ] motions . . . are all denied.
N.T., 5/10-11/17 at 118-123.
In its Post-Trial Memorandum, the trial court incorporated its on-the-
record decision during trial, but also added the following explanation:
Additionally, the court adds and/or reiterates the following.
Dr. Curran qualified at trial as a defense expert in obstetrics and
gynecology. She indicated that the accurate way to measure the
adequacy of uterine contractions is by use of an intrauterine
pressure catheter (“IUPC”). The IUPC can be used to measure the
strength of contractions, and relatively simple calculations can
then be done to assess whether the contractions are medically
adequate for or during labor. Curran explained that a nurse
palpating the uterus could gain a sense of the strength of
contractions and might subjectively judge the contractions to be
strong when, in fact the contractions could actually be inadequate.
Curran did not equate the strength or perceived strength of a
contraction with the adequacy in the way [Appellants] seem to
contend.
Also, Curran explained that observations of cervical changes
(i.e., dilation and effacement), and changes in the baby’s position
during labor are relevant to an overall assessment of the
progression of labor. Adequate contractions are needed to cause
proper cervical changes. [Dr. Gallagher] had not observed proper
cervical changes and, as such, took steps in an attempt, to make
the contractions adequate. Ultimately, Dr. Curran opined within
a reasonable degree of medical certainty that [Dr. Gallagher] met
the applicable standard of care when treating [Angela].
Trial Court Opinion, 12/12/17, at 3.
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The evidence of record supports the trial court’s determinations. During
her testimony, in response to questions by Doctors’ counsel, Dr. Curran
explained “adequate contractions” as follows:
A. So the only way that you can really tell whether a
contraction is adequate is if there is an [IUPC]. An external
monitor and even a nurse palpating the uterus can tell you when
and how long that a contraction happens, but in order to really
say how strong that a contraction is, they have to put a tube inside
the uterus which requires the membranes to be ruptured, and, it
will tell you exactly how strong that each contraction is. When
you add up the baseline and the top and it has to be over 200
Montevideo units. I can go more in detail if you want me to.
Q. Let me ask you this: Which is more reliable? A nurse feeling
the contractions or this [IUPC]?
A. The [IUPC] is more accurate.
Q. Can a nurse feel contractions that she feels are strong which
are really inadequate?
A. Yes.
Q. Is that something that happens with any regularity or
frequency?
A. Yes.
Q. Why is it important to have adequate contractions?
A. Well, to affect cervical change, you need adequate
contractions.
N.T., 5/11/17, at 19-20.
Dr. Curran stated that when the IUPC was placed at 8:30 p.m., the IUPC
indicated that Angela was not having adequate contractions. Id. at 21-22.
Dr. Curran further explained that the uterus is a smooth muscle, and does not
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“fatigue” as other muscles do after prolonged use. Id. at 24. The following
exchange occurred during which Dr. Curran addressed the idea of muscle
fatigue and “adequate contractions”:
Q. With a nurse indicating that contractions were strong and
then the [IUPC] put in and they were determined to be
inadequate, was that a sign of uterine muscle fatigue?
A. No.
Q. Did it have anything to do with uterine muscle exhaustion?
A. No.
Q. So why at 8:30 when the pressure catheter was placed did
it show inadequate contractions?
A. Because she wasn’t in adequate labor.
Q. Can you progress from five centimeters dilated to nine
centimeters dilated with inadequate contractions?
A. Yes.
Q. Did [Angela] ever have adequate contractions?
A. No.
Q. Even after the Pitocin?
A. Correct.
Q. With the Pitocin was she able to progress to ten centimeters
dilated?
A. Yes.
Q. At 7:45 p.m. should a Caesarean section have been
performed?
A. I don’t believe so.
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Q. And why do you feel, that?
A. Well, let’s see. The IUPC had not been placed yet and she
had progressed from the five centimeters to eight plus
centimeters and there was no -- Dr. Gallagher had no idea
whether these contractions were adequate or not because there
was no IUPC or intrauterine pressure catheter.
Q. Is it important to determine the adequacy of contractions
before you do a Caesarean section?
A. Yes.
N.T., 5/11/17, at 24-25.
Dr. Curran provided the following additional testimony regarding the
progression of Angela’s labor:
A. So the first stage of labor is the start of painful contractions
that make the cervix change until you get to complete, which is
ten centimeters.
Q. Do the records reflect that [Angela] was complete by 50
minutes after midnight?
A. Yes.
Q. Ten to one a.m.?
A. Yes.
Q. At any moment up to that point was there any indication
that Dr. Gallagher should have intervened and recommended a
Caesarean section?
A. Not in my opinion.
Q. And what do you base that opinion on?
A. That she had made steady, albeit a little slow progress, but
she had progressed to complete despite the fact that she never
had adequate contractions.
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N.T., 5/11/17, at 27.
On cross-examination, when Appellants’ counsel questioned Dr. Curran
regarding notations by the delivery nurse that Angela’s contractions were
“strong,” the first being at 3:32 p.m., the following exchange took place:
Q. At 3:32 that she is having strong contractions; correct?
A. She did chart that. The problem is that that [sic] is external
and it doesn’t correlate with the pressure catheter.
Q. I understand that, but I can go through all these if you like,
but on every entry from 3:32 p.m. until the [IUPC] was put in she
recorded strong contractions; correct?
A. Correct, but that still doesn’t really correlate with how
strong the contractions are.
Q. Let me show this to you real quick to make sure that we’re
in agreement. Page 637. Down at the bottom here.
At 8:15 p.m., right before the catheter was put in, she
records them as strong; correct?
A. She did record that.
Q. So there are multiple examinations, and again, I don’t want
to waste the jury’s time, but we can go through this, it is just
nurses examining her regularly; correct?
A. Yes.
Q. And every time from 3:32 p.m. to 8:15 p.m., this nurse is a
33 year veteran labor and delivery nurse, records the contractions
as being strong; correct?
A. She did record that.
Q. We actually don’t know because there was no [IUPC]; right?
A. Correct, until 8:30 when it was put in.
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Q. So your testimony that she never had adequate contractions
prior to 8:15 p.m., you’ve chosen to disbelieve Nurse Braun;
correct?
A. I am not disbelieving her. I am sure that they felt strong
and I admire her service to obstetrics, but it is still not the same
as having an [IUPC]. Even me and I have done this for 21 years.
N.T., 5/11/17, at 49-51.
Dr. Curran again stated on cross-examination that, despite Nurse
Braun’s designation of Angela’s contractions as being strong, Angela did not
have “adequate contractions according to the IUPC.” N.T., 5/11/17, at 55.
Dr. Curran explained: “. . . but again, we’re - - I guess that we will have to
agree to disagree that while I respect Nurse Braun’s experience, her palpating
a strong contraction does not correlate with [IUPC] measurements.” Id. at
55. Throughout her testimony, Dr. Curran consistently distinguished “strong”
contractions as measured by the obstetrics nurses, from “adequate”
contractions as measured by the IUPC.7 Id. at 57, 58, 61, 65, 67-68, 82.
Furthermore, Nurse Braun’s testimony was consistent with and
supported Dr. Curran’s testimony. Nurse Braun testified that at 7:40 p.m.,
she had made a record entry noting that Angela’s contractions were “strong,”
but also explained that Angela’s labor was not progressing. N.T., 5/10-11/17,
at 105. Nurse Braun testified that she was aware that at 10:45p.m., Pitocin
____________________________________________
7 Dr. Curran explained that “adequate” is a defined term in obstetrics and
defined “adequate contractions” as follows: “So adequate contractions are
defined by an [IUPC] in measuring the strength of the contractions for a
certain period of time.” N.T., 5/11/17 at 65.
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was increased because the contractions were not “adequate” as measured by
the IUPC. Id. at 106. On cross-examination, Nurse Braun provided the
following testimony regarding the strength of contractions as felt through
palpation versus the adequacy of contractions as measured by an IUPC:
Q. Which is more accurate measuring the strength of the
contraction; your ability to feel it or the IUPC, the intrauterine
pressure catheter?
A. The intrauterine pressure catheter.
Q. Can you feel contractions and consider them to be strong
but an intrauterine pressure catheter does not believe that they
are adequate?
A. Yes.
Q. Does the -- I am going to call it the IUPC.
A. Thank you.
Q. So I don’t have to keep saying it. Well, why don’t you tell
the jury because I am not sure that they have been told how an
IUPC works to measure the adequacy of contractions?
A. Okay. The IUPC, it is inserted, and it has a very small tip
that goes up into the uterus and from within that it measures the
pressure within the uterus during a contraction.
Q. And then once you get that measurement, what do you do?
A. You take a range of contractions in ten minutes and you take
the baseline because it records -- I don’t know if we have that in
pictures, but there is a baseline, and based on each individual
contraction in that ten-minute period we add all of those up. Say
if it is a baseline of 20 and it goes to 40, that would only be a 20
minute -- a 20 millimeter of mercury contraction and strength.
Q. Let me give an example so to be sure what you are talking
about. Can we get page 315.
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Ms. Braun, why don’t you tell us what that is?
A. That is a recording of the uterine contractions monitored by
the IUPC and the fetal heart rate monitored by the external
monitor.
Q. Is the fetal heart rate on the top?
A. Yes.
Q. And then the contractions are on the bottom?
A. Yes.
Q. And every time that the patient has a contraction you see
this curve?
A. Correct.
Q. Now, when you talk about measuring the strength of the
contractions on the IUPC, can you tell the jury what you’re
measuring and what you are comparing?
Do you want a pointer? It might help.
A. Sure. This would be the baseline (indicating), which is
running around 25 millimeters. A contraction right here goes up
to about 60. So 60 minus 25 is 35.
Then the next contraction only goes up to 50, so that is
about a 25 millimeter contraction. Over here it goes up to 60
again, so that is a 35. So that looks like about ten minutes. The
units added up would be 75.
Q. 35, 35 and 25. 95?
A. Yes.
Q. And to be considered adequate labor, they have to be over
200?
A. 200 and above is what we consider adequate labor.
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Q. Is it possible for a nurse to feel a contraction in the absence
of this monitor and think that it is strong, but the pressure monitor
is saying that they are not adequate?
A. Yes, it is. It is very subjective.
N.T., 5/10-11/17, at 107-109.
As reflected by the testimony, Dr. Curran consistently described
Angela’s contractions as inadequate as measured by the IUPC. Dr. Curran
also consistently stated that she could not address the measurement of the
contractions prior to the placement of the IUPC because she could not know
the strength (measure) of those contractions without the placement of the
IUPC. She explained that the nurse could have felt contractions that she
believed were “strong”, but that designation was subjective. Moreover, a
contraction could feel “strong” by palpation, but still be “inadequate” as
measured by the IUPC. Furthermore, Dr. Curran’s determination that Angela’s
contractions were inadequate, even prior to placement of the IUPC, was based
on the evidence of record regarding Angela’s progression, or lack thereof, in
labor. Additionally, Nurse Braun, whose notations Appellants rely on as
evidence establishing that the contractions were “strong” prior to placement
of the IUPC, provided testimony consistent with Dr. Curran’s that a contraction
could feel “strong,” but not be “adequate” as measured by an IUPC.
Thus, we disagree with Appellants’ claims that Dr. Curran’s testimony
lacked foundation and was not made to a degree of medical certainty.
Accordingly, the trial court did not err in denying Appellants’ post-trial motion
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to strike Dr. Curran’s testimony or to issue a curative jury instruction. Thus,
Appellants’ are entitled to no relief on their claims.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2018
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