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WALKER v. UNITED STATES

January 11, 1985

Valencia WALKER, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: JACKSON

 JACKSON, District Judge.

 This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., by four-year-old Steven H. Walker and his mother, Valencia Walker, for medical malpractice alleged to have occurred in the course of Steven's birth at the Walter Reed Army Medical Center in November of 1980. Plaintiffs claim that the hospital, acting by its resident physician who managed Valencia Walker's labor and delivery, was negligent in allowing the mother's labor to proceed in such a manner that a low forceps delivery became necessary which, in turn, although properly performed, necessarily inflicted traumatic injury to a facial nerve on the infant's left side. Upon the facts found as hereinafter set forth in accordance with Fed.R.Civ.P. 52(a), following trial without jury, and the conclusions of law drawn therefrom, for the reasons stated the Court will enter judgment for defendant.

 I.

 Valencia Walker, a military wife in the final month of her first pregnancy to be carried to term, presented at the obstetrics ward of Walter Reed Army Medical Center shortly before midnight, November 17, 1980. Her contractions had begun at approximately 10:00 p.m., and her membranes had ruptured spontaneously immediately prior to admission. Upon admission her cervix was found to have dilated to four centimeters and was completely effaced. The baby was at the minus two station.

 Shortly after admission she was seen by Franklin Crane, M.D., the first-year resident in obstetrics who would manage her through to a vaginal delivery a few minutes after 2:00 a.m. Upon his initial examination Dr. Crane made two findings of particular significance to him: Ms. Walker's vaginal discharge contained meconium of "pea soup" consistency, and "decelerations" in fetal heart tones were auscultated by fetascope. Dr. Crane concluded that the baby's status should be followed continuously by internal fetal monitor, in his words, "as soon as possible!", and he made a progress note to that effect which, unfortunately, he failed both to time and to implement. *fn1" By interpolation and inference, however, it is reasonably clear that Dr. Crane had completed his evaluation of Ms. Walker and determined an internal fetal monitor to be indicated at about 12:35 a.m. An external monitor lead was placed about Ms. Walker's abdomen at approximately that time, but it was not until 1:30 a.m. that Dr. Crane attached the internal monitor lead to the baby's scalp. Fetal heart rate was recorded at that moment as 147, but sometime between 1:30 and 1:45 a.m., Dr. Crane perceived (presumably from the internal monitor) patterns of fetal heart rate decelerations he described as "mixed/variable," and at least one episode of fetal tachycardia (to 190), which he characterized on his own as "fetal distress." At 1:45 a.m. he ordered Ms. Walker taken to the delivery room where, at 2:04 a.m., he delivered Steven, using low forceps and making a midline episiotomy under local anesthesia.

 Steven Walker weighed slightly more than five pounds at birth. The umbilical cord was wrapped once about his neck. His Apgar scores were seven and eight (at one and five minutes, respectively), and he bore no superficial evidence of trauma secondary to the application of the forceps.

 Steven's in-hospital postnatal record does not reflect any evidence of facial nerve pathology. However, at an early outpatient clinic visit on December 10, 1980, the examining pediatrician noted Steven to have an "asymmetry" of his mouth when crying. The condition, a lower motor neuron paralysis of a branch of the seventh facial nerve, known as "Bell's palsy," persists to this date. It is not noticeable except when Steven cries or laughs, and it is neither dysfunctional nor disfiguring; it is, however, perceptible, has not improved, and may be permanent. It is that injury for which plaintiffs make claim here. Steven Walker is otherwise apparently neurologically normal.

 II.

 Plaintiffs contend that Steven's facial asymmetry is secondary to the trauma inflicted by the blade of Dr. Crane's forceps upon the left side of his head as he was being delivered. *fn2" They do not contend that Dr. Crane negligently manipulated the forceps or used excessive force; indeed, they concede that the use of forceps was indicated in the circumstances, and that some trauma unavoidably accompanies their use. They contend, rather, that Dr. Crane (and, through him, the defendant United States) was negligent in failing to attach the internal fetal monitor which Dr. Crane himself recognized as necessary to give early and accurate forewarning of conditions endangering the fetus. According to plaintiffs, Ms. Walker presented at the hospital in "high risk" circumstances: she was marginally premature; her membranes had ruptured spontaneously prior to admission; labor was progressing more rapidly than normally anticipated in a nulliparous patient; vaginal discharge showed "pea soup" meconium; and auscultation by fetascope suggested aberrant decelerations in fetal heart rate. Each condition is known on occasion to predispose to, portend, or accompany "fetal distress" (which, for purposes of this case, would occur upon an interruption in fetal oxygenation), although none of them, singly or in combination, indicates that fetal distress is actually present. Nevertheless, the need for careful monitoring is acknowledged by both sides, and it is for the hour or so when the more accurate internal fetal monitor was not in operation that plaintiffs seek to hold the hospital accountable. It is their theory that, during that period, actual fetal distress developed, to which Dr. Crane and the nurses were oblivious until it was finally detected upon insertion of the internal monitor, prompting a precipitous delivery per vagina (the only mode then available, the infant's head having engaged), with the use of forceps then being imperative to extract the baby as quickly as possible. Had the internal monitor been in place when it should have been, the plaintiffs contend, the fetal distress would have been detected earlier, when caesarean section remained not only a viable alternative but the treatment of choice. *fn3"

 The hospital concedes that the internal monitor should have been inserted, as Dr. Crane noted, "as soon as possible." Assuming no more urgent demands upon Dr. Crane's time and attention intruded -- and there is no evidence they did -- reasonable care in the circumstances required him to insert the internal monitor lead immediately upon completion of his initial examination. *fn4" Nevertheless, the hospital says, nothing of significance occurred during the interval of a magnitude to justify a surgical delivery. Consequently, the failure to attach the internal monitor earlier did not result in a failure to do a caesarean section and is not, therefore, the proximate cause of any injury to Steven occurring in the course of the low forceps vaginal delivery.

 III.

 The United States is liable under the Federal Tort Claims Act "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, and its liability is to be determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. §§ 1346(b), 2672. Under District of Columbia law a plaintiff in a medical malpractice case bears the burden of proof on three issues: the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the plaintiff's injury. Meek v. Shepard, 484 A.2d 579 at 581 (D.C.1984). In cases such as this, expert testimony is necessary to prove both a departure from the standard of care and its causal connection with the harm complained of. See Washington Hospital Center v. Martin, 454 A.2d 306, 308 (D.C.1982); Quick v. Thurston, 110 U.S. App. D.C. 169, 290 F.2d 360, 362 (D.C.Cir.1961) (en banc).

 Plaintiffs' expert evidence consisted of the testimony (by deposition) of Dr. Richard F. Morton, currently Associate Director of Medical Services for the March of Dimes Birth Defects Foundation in New York, but from 1956 through 1968 a practicing obstetrician (although not Board-certified) on the West Coast. *fn5" In Dr. Morton's opinion, Mrs. Walker's meconium show and the fetal heart deceleration noted by Dr. Crane at 12:35 a.m. were, in and of ...


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