NEWSHA KUHBANANI, et al. Plaintiffs
THE OHIO STATE UNIVERSITY MEDICAL CENTER, et al. Defendants
to S.C. Reporter 6/23/17
M. McCarthy William S. Jacobson
A. Turner Mark L. Schumacher Sandra R. McIntosh Special
Counsel to Attorney General
Jeffrey L. Maloon Assistant Attorney General
DECISION OF THE MAGISTRATE
ANDERSON M. RENICK, Magistrate Judge
Plaintiffs, Shahram Gharibshahi, M.D. and his wife, Newsha
Kuhbanani, who are the parents of plaintiff Sooshyance
Gharibshahi, a minor, brought this action alleging negligence
by the medical staff at defendant The Ohio State University
Medical Center (OSUMC). The case proceeded to trial on the
issues of liability and damages.
Plaintiffs' claims arise from the delivery and care
provided to Sooshyance who was born on May 17, 2008 at OSUMC.
During the afternoon of May 16, 2008, Newsha was admitted to
OSUMC with a full-term, normal weight baby. Newsha's
obstetrician, Sarah Artman, M.D., decided to induce labor and
initiate fetal heart monitoring, which provided readings
that, by all accounts, were not concerning prior to 1:00 a.m.
on May 17, 2008. Dr. Artman was assisted by several
obstetrical nurses who, among a variety of duties, observed
and interpreted the fetal heart monitor. The fetal heart
monitoring strips initially showed normal, moderate
variability, meaning fluctuations in amplitude and frequency
from the heart rate "baseline, " which is an
indication that the baby was well-oxygenated. However,
between 1:10 and 1:20 a.m., fetal heart rate
"decelerations" were apparent, an indication of a
transient interruption of the fetal oxygen supply. When
meconium (fecal matter) was detected in the amniotic fluid a
pediatric resuscitation team (peds team) was summoned to the
delivery room. The peds team consisted of Christine Dugan
(nka Adams), M.D., a third-year resident; Edward Nehus, M.D.,
a second-year resident; and Sheria Spain (nka Wilson) M.D.,
an intern. The peds team prepared in the event that the baby
required resuscitation related to either late decelerations
or an effort to prevent development of meconium aspiration
syndrome as a result of inhaling the fluid. By 1:30 a.m.,
delivery was in progress and Dr. Artman had become concerned
by a change in heart rate variability to minimal or absent
variability, followed by recovery and a rise in heart rate.
Thereafter, the fetal heart rate continued to deteriorate and
by 1:40 a.m. it was low with prolonged decelerations and
little variability. At 1:43 a.m., Dr. Artman removed the
scalp electrode that detected fetal heart tracings so that
she could begin use of a vacuum system to extract the baby.
After the scalp electrode was removed, an external ultrasound
device was used periodically to detect a minimal fetal heart
rate in the minutes before delivery at 1:52 a.m.
When Sooshyance was born, he was not breathing and his heart
rate was either dangerously low or non-existent.
Sooshyance's condition was assessed using Apgar scores, a
numerical rating system that reflects an assessment of a
newborn's condition of breathing, tone, reflexes,
movement, and color. The Apgar scores at 1, 5, and 10 minutes
after birth were 0, 0, and 1, respectively. The members of
the peds team followed an established protocol, the Neonatal
Resuscitation Program (NRP), by first suctioning the airway
to remove meconium and then administering oxygen with a
"bag-mask" device to create positive pressure
ventilation (PPV). The peds team continued use of the
bag-mask and applied chest compressions for approximately
three minutes. After Sooshyance did not respond, the
residents performed an endotracheal intubation for
ventilation. At 1:56 a.m., four minutes after delivery,
Daniel Malleske, M.D., who was in his second year of a
neonatology fellowship and had experience in resuscitating
severely depressed neonates, arrived to assist with
resuscitation. Dr. Malleske determined that Sooshyance was
not adequately ventilated and he inserted a second
endotracheal tube and then administered two doses of
epinephrine (at 1:58 and 1:59 a.m.) to stimulate
Sooshyance's heart. Approximately three minutes later,
Sooshyance showed the first signs of a returning heart rate.
Sooshyance has been diagnosed with a significant and
permanent brain injury caused by hypoxic ischemic
encephalopathy (HIE) which, according to plaintiffs'
pediatric neurology expert, resulted in a diagnosis of
spastic quadriparesis, a type of cerebral palsy which affects
all four limbs and fine motor activity. As a result,
Sooshyance is fed primarily through a gastric tube in his
abdomen, although he can eat some food by mouth. Sooshyance
also has a significant cognitive abnormality that impedes
learning, seizure disorder which is partially controlled by
medication, and a significant problem with speech and
Plaintiffs contend that Sooshyance's resuscitation was
delayed and that the delay was a proximate cause of his HIE.
According to plaintiffs, the standard of care required an
experienced resuscitator to be present prior to
Sooshyance's delivery and the resuscitation team breached
the standard of care by failing to timely notify Dr. Malleske
of Sooshyance's grave situation. Specifically, plaintiffs
maintain that either the nurses in the delivery room failed
to notify the pediatric residents of Sooshyance's
severely depressed heart rate, or if a nurse did communicate
that there was a reasonable expectation that the baby would
be born in a severely depressed state, that the peds team
negligently failed to timely notify Dr. Malleske of the
situation. According to plaintiffs, Sooshyance's injuries
would not have occurred if Dr. Malleske had been present at
the beginning of the delivery.
"In order to establish medical malpractice, it must be
shown by a preponderance of evidence that the injury
complained of was caused by the doing of some particular
thing or things that a physician or surgeon of ordinary
skill, care and diligence would not have done under like or
similar conditions or circumstances, or by the failure or
omission to do some particular thing or things that such a
physician or surgeon would have done under like or similar
conditions and circumstances, and that the injury complained
of was the direct and proximate result of such doing or
failing to do some one or more of such particular
things." Bruni v. Tatsumi, 46 Ohio St.2d 127
(1976), paragraph one of the syllabus.
The same standard applies equally to claims that a nurse
negligently caused injury to a patient. Ramage v. Central
Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, (1992).
"Because nurses are persons of superior knowledge and
skill, nurses must employ that degree of care and skill that
a nurse practitioner of ordinary care, skill and diligence
should employ in like circumstances. Whether a nurse has
satisfied or breached the duty of care owed to the patient is
determined by the applicable standard of conduct, which is
proved by expert testimony." Berdyck v. Shinde,
66 Ohio St.3d 573, syllabus (1993).
Plaintiffs' expert, Joseph Ouzounian M.D., is board
certified in obstetrics and gynecology (OBGYN) and
maternal-fetal medicine, a subspecialty related to the care
of high-risk pregnancies. Dr. Ouzounian testified that the
fetal heart monitor tracings showed nothing remarkable prior
to 1:00 a.m. Dr. Ouzounian estimated that Sooshyance's
initial fetal heart rate baseline was approximately 145 beats
per minute, which he characterized as normal, and he
testified that moderate variability was a favorable finding.
Dr. Ouzounian related that between 1:00 and 1:10 a.m. fetal
heart rate decelerations became apparent, which could have
been caused by either compression of the umbilical cord or
contractions of the mother's uterus. Dr. Ouzounian
testified that Soohyance's fetal reserves were
"fine" at 1:20 a.m. as indicated by his recovery
from the decelerations with moderate variability. At 1:30
a.m., the delivery was in progress and Dr. Ouzounian noted a
change in variability to minimal, with at least a short
period of absent variability with a deceleration, which he
testified was very common in the minutes before delivery.
However, Dr. Ouzounian opined that the deceleration at this
point, down to the 60s, was "concerning" and that
the baby would likely "need some help" at delivery.
Dr. Ouzounian opined that by 1:40 a.m. a pediatrician or
nurse would have a reasonable expectation that the baby would
have respiratory distress and require intubation. At 1:43
a.m., the scalp electrode was removed to effectuate delivery.
Dr. Ouzounian explained that thereafter, the fetal heart rate
was detected in the 60s, as recorded in nursing notes for the
time just prior to delivery. Dr. Ouzounian opined that the
fetal heart rate tracings indicate that "with proper
resuscitation, the baby would be fine" and that
"the majority of these kids do great." Dr.
Ouzounian did not have any criticisms of Dr. Artman.
Dr. Ouzounian related that HIE is brain damage due to a
hypoxic event. Dr. Ouzounian explained that acidemia, a
buildup of acid in the blood, usually precedes acidosis,
which involves acid buildup in the tissue. Dr. Ouzounian
testified that an interruption in oxygen flow causes
respiratory acidosis in the blood, the first step in a
continuum which is followed by respiratory acidemia, mixed
respiratory/metabolic acidosis, then metabolic acidemia,
ultimately resulting in brain injury. Dr. Ouzounian explained
that if an interruption of oxygenation and the development of
respiratory acidosis continues, acid will begin to build up
at the tissue level, leading to respiratory acidemia.
Eventually, a mixed respiratory and metabolic acidosis
develops as the fetus begins to use its "buffer
bases" (bicarbonate) to counter the acidemia. When the
buffer bases begin to become depleted, acid will build up in
the blood as metabolic acidemia and oxygen deprivation
eventually cause brain damage. Dr. Ouzounian opined that
metabolic acidemia is a prerequisite for brain damage due to
intrapartum hypoxia. According to Dr. Ouzounian, respiratory
acidosis is generally not harmful to the fetus.
Soon after the delivery, umbilical cord gases for both the
umbilical artery and umbilical vein were measured by OSUMC
staff from blood that was drawn at the time of birth. Dr.
Ouzounian related that the fetus gets oxygen from the mother
and from the placenta. The umbilical artery contains blood
coming from the baby to the placenta and the vein contains
blood from the placenta to baby. Dr. Ouzounian testified
that, conceptually, blood gases from the umbilical artery
reflect the fetal status. Dr. Ouzounian explained that the
blood gases that were measured included pH, a measure of
acidity; PCO2, or carbon dioxide, which reflects respiratory
status inasmuch as carbon dioxide increases as breathing
decreases; PO2 which reflects oxygenation; and HCO3, or
bicarbonate, a measure of a buffer base that can offset the
buildup of acid. Dr. Ouzounian testified that normal readings
for umbilical artery blood are: pH between 7.25 and 7.35;
PCO2, about 50; PO2, about 20; and HCO3 between 20 and 25.
According to Dr. Ouzounian, the arterial blood gas readings,
which reflect fetal status were within the normal range for
PO2 and HCO3, while the PCO2 was very high and pH was very
low. Dr. Ouzounian testified that a formula is used to
correct the pH reading based upon the high PCO2, which in
this case results in a corrected pH of approximately 7.35.
According to Dr. Ouzounian, a pH of 7.35 is "basically
normal" and indicates respiratory acidosis, or possibly
a metabolic component, but does not suggest a brain injury
because the lack of metabolic acidemia shows that the baby
had fetal reserves. Dr. Ouzounian defined base excess, or
base deficit, as a calculated value that demonstrates whether
a component of metabolic acidemia exists. Dr. Ouzounian
testified that base excess or base deficit builds up when
bicarbonate has been depleted and is not available to
neutralize acid buildup. Dr. Ouzounian calculated the base
deficit as approximately 11. Dr. Ouzounian opined that prior
to birth Sooshyance did not sustain any brain injury caused
by intrapartum oxygen deprivation based upon Dr.
Ouzounian's assessment of Sooshyance's fetal
reserves, considering his oxygenation and buffer bases.
Ouzounian testified that he would defer to the opinion of a
pediatric neurologist regarding Sooshyance's condition
after birth and his ability to respond to the supportive
treatment that was provided thereafter. Nevertheless, Dr.
Ouzounian was critical of the level of experience of the peds
team, characterizing the team members as "rookies"
who had never treated a baby in such a depressed condition.
According to Dr. Ouzounian, every minute is critical when
treating a baby who is born with no respiration and no heart
rate. Dr. Ouzounian testified that according to times noted
in the medical record, there was approximately three and one
half minutes between the time that Dr. Malleske testified
that he would have intubated (an estimate of one and a half
minutes after birth) and the time that the baby was
effectively ventilated at 1:57 a.m. Dr. Ouzounian explained
that there are five categories that are assessed in assigning
an Apgar score and he opined that the one-minute Apgar was
not significant in determining a prognosis, in part, because
it is dependent on the effectiveness of resuscitation
Dr. Ouzounian related that the American College of
Obstetricians and Gynecologists (ACOG) is a professional
organization that publishes clinical guidelines, including a
guideline for determining the existence of HIE during labor
due to intrapartum hypoxia. Dr. Ouzounian testified that the
ACOG criteria included pH of less than 7 and a base excess
greater than 12. Dr. Ouzounian stated that even if all the
enumerated ACOG criteria were met, the guidelines also
provide that all other possible causes for neonatal brain
injury must be excluded and that Sooshyance's cardiac
respiratory arrest after delivery was another explanation for
HIE. During cross examination, Dr. Ouzounian testified that
neonatal resuscitation is outside his area of expertise and
that he has not performed that service since his residency.
Dr. Ouzounian stated that he did not have any criticism of
either the peds team, Dr. Malleske, or the nurses who
assisted during and after delivery.
Plaintiffs nursing expert, Laura Mahlmeister, RN, PhD., had
worked as a floor nurse for over 40 years before retiring to
teach as a clinical professor of nursing at the University of
California San Francisco School of Nursing. Dr. Mahlmeister
also writes, lectures and serves on committees that formulate
polices and procedures regarding labor and delivery. Dr.
Mahlmeister testified that obstetrical nurses are "the
eyes and ears of the doctor." Her review of the medical
record showed that there were four experienced obstetrical
nurses in the labor and delivery room, Nurses Cox, Jenkins,
Elliot, and Cowles, and one nurse in training. Dr.
Mahlmeister testified that she had no criticisms in this case
if Nurse Cox notified the residents of the decreased fetal
heart tracings as Cox testified in her deposition. Dr.
Mahlmeister opined that the standard of care required the
nurses to notify the residents of that change in condition.
Dr. Mahlmeister explained that ensuring the proper personnel
and equipment was ready for resuscitation was a crucial part
of the nurses' duty. According to Dr. Mahlmeister, in the
last 10 to 15 minutes before delivery, a reasonable
obstetrical nurse under the same conditions would have had an
expectation of severe birth depression based upon the very
low fetal heart rate and rapidly diminishing variability. Dr.
Mahlmeister testified that by about 1:40 a.m., a reasonable
and prudent nurse would have communicated concerns about the
fetal heart rate tracings. According to Dr. Mahlmeister, the
peds team would have had to be notified of the depressed
fetal heart tones by no later than 1:48 a.m. to allow them to
notify Dr. Malleske in time for him to arrive prior to
During cross examination, Dr. Mahlmeister testified that a
pattern of decelerations and minimal variability is a
characteristic fetal pattern of metabolic acidosis and that
the pattern was cause for the nurses to notify the peds team.
Dr. Mahlmeister stated that metabolic acidosis is associated
with a baby being born with an Apgar score of 0. Dr.
Mahlmeister admitted that there is some controversy regarding
the predictive value of electronic fetal monitoring. Dr.
Mahlmeister acknowledged that lactic acid causes metabolic
acidosis which then causes the decrease in heart rate
variability. Dr. Mahlmeister testified that the residents
knew there were decelerations when they were called, but she
was not aware whether the heart rate monitor was audible in
the delivery room. Dr. Mahlmeister opined that the only
difference between Sooshyance's condition at birth and
that of a stillborn baby is the fact that Sooshyance was able
to be resuscitated.
Edward Karotkin, M.D., plaintiffs' neonatology expert,
testified that he has over 40 years of experience and that he
is board certified in pediatrics and neonatal- perinatal
medicine. Dr. Karotkin is a coeditor (with defendant's
expert, Dr. Goldsmith) of the textbook, Assisted
Ventilation of the Neonate. Dr. Karotkin testified that
for most of his career, he has practiced in a teaching
hospital, instructing medical, resident, and fellowship
students. Dr. Karotkin related that, ...