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Lowder v. Domingo

Court of Appeals of Ohio, Fifth District, Stark

March 31, 2017

ALBERT T. DOMINGO, M.D., ET AL. Defendant-Appellees

         Appeal from the Stark County Court of Common Pleas, Case No. 2014CV01866

          PAMELA PANTAGES DAVID W. SKALL The Becker Law Firm, L.P.A., PAUL W. FLOWERS Paul W. Flowers Co., L.P.A. For Plaintiff-Appellant

          DAVID M. BEST David M. Best Co., L.P.A., STEPHEN P. GRIFFIN MICHAEL J. KAHLENBERG For Defendant-Appellees

          Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.


          Hoffman, J.

         {¶1} Plaintiff-appellant Janet L. Lowder, Guardian of Kristia Mayers, a minor, appeals the February 2, 2016 Judgment Entry entered by the Stark County Court of Common Pleas, granting judgment in favor of defendant-appellee Dr. Albert T. Domingo, M.D., following a jury trial.


         {¶2} On August 8, 2014, Appellant filed a Complaint, alleging Kristia Mayers sustained permanent brachial plexus injury due to Appellee's mismanagement of shoulder dystocia during Kristia's delivery on June 9, 2009. Shoulder dystocia is a complication during childbirth where a baby's shoulder becomes caught in the birth canal after the head has delivered. Appellant further alleged Appellee applied excessive force during delivery, employed unaccepted medical maneuvers when the baby's shoulder became lodged against her mother's pelvic bone, and failed to offer Kristia's mother the option to deliver by cesarean section due to her diabetes.

         {¶3} The matter proceeded to trial on January 19, 2016.

         {¶4} Marti Mayers, the biological mother of Kristia, testified she was diagnosed with diabetes in 2007. She became pregnant with Kristia the following year. Appellee was Ms. Mayers' obstetrician. Ms. Mayer recalled, following an ultrasound and biophysical profile testing, Appellee advised her the baby was large and she would probably need to deliver by cesarean section. Ms. Mayers testified Appellee told her the diabetes caused the baby to develop broad shoulders and to have a larger bone structure, and indicated shoulder dystocia was a potential concern during delivery.

         {¶5} Appellee testified Ms. Mayers had an ultrasound in May, 2009. The ultrasound revealed her baby's birth weight would likely be less than 4, 500 grams; therefore, Ms. Mayers would not need to deliver by cesarean section. Ms. Mayers had a routine office visit on June 5, 2009. At that time, the baby's gestational age was 36 weeks and 5 days. Appellee planned to check the baby again at 38 weeks. However, on June 9, 2009, Ms. Mayers presented at Appellee's office, and although she was not in active labor, her cervix was dilated approximately one centimeter. Appellee made arrangements to have Ms. Mayers transported to Mercy Medical Center for progression into active labor.

         {¶6} During the delivery, Appellee identified shoulder dystocia involving Kristia's right shoulder. Appellee employed several recognized and accepted maneuvers to alleviate the shoulder dystocia, including a right medial lateral episiotomy, McRobert's maneuver, extension of the episiotomy, the application of suprapubic pressure, and delivery of the posterior arm. Appellee was able to free the baby's shoulder and complete the delivery. Following delivery, Dr. Adyemi Sobowale, the attending pediatrician, noted bruising on Kristia's skin and a lack of movement and sensation in her left arm. Dr. Sobowale charted left Erb's palsy/nerve traction.

         {¶7} Appellant's expert witness, Dr. Frank Bottiglieri, a Board certified obstetrician/gynecologist who has practiced obstetrics and gynecology for thirty seven years, opined Appellee used "an untested, unproven maneuver to address the shoulder dystocia and, as a result, caused the left brachial plexus damage. Dr. Bottiglieri also testified Appellee's failure to offer Ms. Mayers a cesarean section delivery fell below the accepted standard of care.

         {¶8} Attorney Pam Pantages, counsel for Appellant, asked Dr. Bottiglieri if he had ever, during the 6, 000 deliveries he performed, caused a brachial plexus injury. Dr. Bottiglieri replied, "No." Trial Transcript, Vol. II at 235. Thereafter, Attorney Pantages asked whether the doctor had ever performed a delivery during which a brachial plexus injury occurred before shoulder dystocia was identified and addressed, Dr. Bottiglieri replied:

No, that's never happened to me, and there's no literature anywhere that would support that. Forces of labor cannot cause this injury * * * It's physically, anatomically impossible to have five levels of nerves either ripped from the spinal cord or torn apart from forces of labor. And happening before, that's based on a theory based on a model that's flawed that it happened miraculously. The single greatest correlate, over 90 percent of all the studies show, antecedent shoulder dystocia and its management is how you get permanent injury. Id. at 238-239.

         {¶9} Throughout his direct examination, Dr. Bottiglieri emphasized "the only way you're going to tear the brachial plexus nerves is through the application of excessive lateral traction. Id. at 310-311, 313-314, 381.

         {¶10} During his cross-examination, Dr. Bottiglieri again indicated he had never delivered a baby with a permanent brachial plexus injury. Thereafter, Attorney David Best, counsel for Appellee, showed Dr. Bottiglieri a complaint and lawsuit[1] in which the doctor was named a defendant and was alleged to have used excessive force during delivery which resulted in a permanent brachial plexus injury. Attorney Best asked Dr. Bottiglieri 17 questions regarding this lawsuit before Attorney Pantages asked to approach the bench. The trial court discussed the issue with the parties, stated the objection was overruled, and permitted Attorney Best to continue the line of questioning. Dr. Bottiglieri acknowledged Dr. Mark Landon, one of Appellee's experts in the instant action, served as an expert witness in support of his defense. The lawsuit, which occurred 23 years earlier, resulted in a verdict in favor of Dr. Bottiglieri.

         {¶11} Dr. Robert Gherman, a Board certified obstetrician/gynecologist and maternal fetal medicine physician, testified on Appellee's behalf. Dr. Gherman serves as the chairman of the brachial plexus palsy committee of the American College of Obstetrics and Gynecology, and assisted in the drafting, peer review, and publication of ACOG's 2014 publication, Neonatal Brachial Plexus Palsy. Dr. Gherman opined the standard of care did not warrant offering Ms. Mayers the option of a cesarean section delivery, and it was reasonable for Appellee to proceed with a vaginal delivery. Dr. Gherman noted Appellee appropriately handled the shoulder dystocia.

         {¶12} Dr. Mark Landon, a Board certified obstetrician/gynecologist who specializes in maternal fetal medicine at The Ohio State University, also testified on Appellee's behalf. Dr. Landon agreed because the baby's fetal weight was estimated to be less than 4, 500 grams, the standard of care did not warrant Appellee offering Ms. Mayers a cesarean section delivery. Dr. Landon opined the brachial plexus injury was not caused by any action or failure to act by Appellee.

         {¶13} Dr. Landon testified Appellee's attempts to resolve the shoulder dystocia did not cause the brachial plexus injuries. Dr. Landon stated his belief the injury occurred during the birthing process before the shoulder dystocia actually was apparent or recognized. Dr. Landon indicated if Appellee had used excessive lateral force, the baby's right arm, not her left arm as had occurred, would have sustained injury. Dr. Landon also noted Appellee did not violate the standard of care by failing to deliver the baby by cesarean section simply because Ms. Mayers was diabetic.

         {¶14} Upon conclusion of the evidence and after counsel for the parties gave closing arguments, the trial court instructed the jury on the applicable law. The trial court, over objection from Appellant, included the "different methods" charge. The jury returned a verdict in favor of Appellee on February 2, 2016. The trial court memorialized the verdict in a judgment entry filed the same day.

         {¶15} It is from that judgment entry Appellant appeals, raising the following assignments of error:



         {¶16} In her first assignment of error, Appellant contends the trial court erred in allowing Appellee to impeach her standard of care expert with extrinsic evidence of a prior lawsuit. Specifically, during cross-examination, Attorney Best questioned Dr. Bottiglieri regarding a prior lawsuit in which he was named a defendant and was alleged to have caused a permanent brachial plexus injury.

         {¶17} On cross-examination, Attorney Best and Dr. Bottiglieri engaged in the following exchange:

Q. Now, you've talked a lot about this knowledge that you have about brachial plexus injuries, but you've never personally had a permanent brachial plexus injury yourself, correct?
A. That is correct. That is correct.
Q. So you don't have any personal experience where you delivered a baby with a permanent brachial plexus injury that you can tell this jury about?
A. Thank God, no. I used the appropriate maneuvers and I've avoided it. I don't need to cause an injury to talk about it.
Q. Doctor, let me have just one moment here and I'll grab something and we're getting near the end. I'm showing you a complaint and lawsuit that says that the defendants had a patient that had a history of obesity, weight gain, rupture of membranes, gestational diabetes -
A. Correct.
Q. - there was a delivery, and the delivery was done vaginally?
A. That's correct.
Q. And that the result of the negligence of that, she suffered a shoulder dystocia?
A. Correct.
Q. And then it goes on to state that the defendants caused permanent brachial plexus injuries and other permanent ...

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