JANET L. LOWDER, GUARDIAN OF KRISTIA MAYERS, A MINOR Plaintiff-Appellant
ALBERT T. DOMINGO, M.D., ET AL. Defendant-Appellees
from the Stark County Court of Common Pleas, Case No.
PANTAGES DAVID W. SKALL The Becker Law Firm, L.P.A., PAUL W.
FLOWERS Paul W. Flowers Co., L.P.A. For Plaintiff-Appellant
M. BEST David M. Best Co., L.P.A., STEPHEN P. GRIFFIN MICHAEL
J. KAHLENBERG For Defendant-Appellees
W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W.
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.
OF THE CASE AND FACTS
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.
The matter proceeded to trial on January 19, 2016.
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.
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.
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.
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.
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
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.
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 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.
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.
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
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.
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.
It is from that judgment entry Appellant appeals, raising the
following assignments of error:
I. THE TRIAL JUDGE ABUSED HER DISCRETION WHEN
DEFENDANT-APPELLEES [SIC] WERE ALLOWED TO IMPROPERLY IMPEACH
PLAINTIFF-APPELLANT'S STANDARD OF CARE EXPERT WITH AN
EXTRINSIC PRIOR LAWSUIT.
II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FURNISHING
INCORRECT AND UNWARRANTED JURY INSTRUCTIONS.
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.
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,
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 -
Q. - there was a delivery, and the delivery was done
A. That's correct.
Q. And that the result of the negligence of that, she
suffered a shoulder dystocia?
Q. And then it goes on to state that the defendants caused
permanent brachial plexus injuries and other permanent ...