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October 16, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Trial Judge

Ferren, Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

Raymond D. Battocchi and Kathleen A. Buck appeal from a judgment in favor of Washington Hospital Center (the hospital) and Dr. Douglas Brady (an employee of the hospital at the relevant time) in a medical malpractice action arising from injuries -- including permanent brain damage -- to their son Adam allegedly caused by the use of obstetrical forceps during his delivery. Dr. Brady, then a third-year resident, used the forceps to effect the delivery after the attempts of Dr. Cohn, Ms. Buck's attending physician, also using forceps, had failed. Dr. Cohn settled before trial and was not a party to the instant suit.

Appellants raise several challenges to the conduct of the trial, foremost of which is the Judge's refusal to give a missing evidence instruction as a sanction for the hospital's failure to preserve a note written by an attending nurse shortly after the delivery. We conclude that a remand of the record is necessary for an express finding central to resolution of that issue. Appellants' remaining arguments provide no basis for reversing the jury's determination.

I. The Delivery

Ms. Buck entered the Washington Medical Center Hospital at 11:15 a.m. on April 2, 1982, after her amniotic membranes had ruptured spontaneously earlier that morning. At about 12:00 noon, mild contractions began. From about 1:00 p.m. until 6:30 p.m., a drug was administered to stimulate contractions, and thereafter various measures were taken to combat an abnormal labor. At 1:30 a.m. on April 3, the attending physician, Dr. Cohn, diagnosed the position of the baby as left occiput posterior (face-down). In fact, the baby's position was occiput anterior (face-up). At about 3:59 a.m., after some fifteen hours of labor, Ms. Buck was brought into the delivery room in an exhausted condition. Dr. Cohn decided to attempt a vaginal delivery using obstetrical forceps. The forceps slipped off the baby's head at least twice, perhaps several times, requiring reinsertion. Ultimately Dr. Cohn's attempts were unsuccessful. Dr. Brady was called in and, using the forceps, delivered the baby at 4:50 a.m.

Adam was born with a fracture at the base of the skull, small linear fractures of the right and left parietal bones (located on the upper sides of the skull), intracranial hemorrhaging, shock from low blood volume (hypovolemic shock), and seizures. He spent the next thirteen days in the neonatal intensive care unit. He now suffers from mild cerebral palsy and related permanent motor and perceptual dysfunctions.

The parties appear to agree that the most significant of Adam's injuries resulted from the compressional force exerted on the skull required to move his head through the opening in the pelvic bone. There is sharp disagreement, however, as to whether Dr. Cohn or Dr. Brady, or both, exerted this considerable degree of force. Dr. Brady testified that, when he entered the delivery room, the baby's head had already passed through the pelvic opening and that the delivery was accomplished easily in a single contraction. He contended that the crushing injury occurred during Dr. Cohn's attempts, when the forceps slipped off and the baby's head was squeezed between the tips of the instrument. Plaintiffs maintained that, although the forceps may have slipped off during Dr. Cohn's attempts, causing some superficial injuries, Dr. Brady failed to examine the mother to ascertain the position of the baby, which did not permit safe use of forceps, and his use of the forceps to bring the baby through the pelvic opening caused the more serious injuries.

II. The Nurse's Missing Note

A. Factual background

Marlene Aretino, a registered nurse, was present in the delivery room during the events in question. Because she resided in New Mexico and was unavailable to testify at trial, the court admitted her videotaped deposition in evidence. Aretino testified that, shortly after the birth, although not required to do so, she wrote a nurse's note:

because I felt, after I left that room, that I needed to write my side of what I had observed . . . Because of what went on in there with the forceps and the way they slipped off and then they were reapplied, and what I anticipated, possibly, the condition of the baby might be. . . . wrote a lot. I tried to document times, forceps applied, condition of the mother, condition of the baby, when Doctor Brady came in. I tried to document as much as I could remember. I remember having difficulty remembering times because -- yes, the clock was there and all I had to do was glance at it, but so many things were going on, "Go get another pair of forceps; check the monitor; listen to the fetal heart tone;" that I really didn't have time, at the Delivery Room, to write everything down chronologically. . . .

When I left the Delivery Room, I was very upset; just very upset with the way things had turned out. [Not so much upset with the doctors, but] more upset for the family, okay. . . .

Around the corner from the nurse's station there's a little quiet area. I wanted to make note here that when I did chart, my intent was not to incriminate anyone or lay blame anywhere; I just wanted to write what I had seen, as I had seen it, as accurately as possible.

Aretino further testified that she wrote the note, about 1 1/3 pages long, on a blank form entitled "Progress Notes" obtained from the nurses' station, and placed it in the medical chart. She said that it should have appeared after other progress notes she made prior to delivery (the last at 3:50 a.m.), but when she reviewed the copy of the chart produced in discovery in preparation for her deposition, the note was not there.

To ascertain what may have become of the note, plaintiffs deposed Michael Anthony Forte, Director of Washington Medical Center. Forte testified that standard procedure in the records department was to retain original charts in active status there for eighteen months after the last activity. Following that, they would be sent to a firm in Baltimore to be microfilmed. Ms. Buck's record should have been retained in original, hard copy form until October of 1983, and then sent to be microfilmed; but after investigating the matter, Forte concluded that the chart had never been sent for microfilming.

Forte acknowledged that on May 26, 1983, the medical records department had received a request for Ms. Buck's chart from Truman Haskell, then Risk Manager for the Washington Hospital Center. The original chart was transmitted to Haskell's office, and a departmental form indicating this fact was placed in Buck's file folder in lieu of the record. Haskell was among the few hospital personnel permitted to review a chart outside the medical records department, a privilege not enjoyed even by physicians. Forte testified that, after his internal investigation to ascertain whether the chart had been misfiled, he determined that "subsequent to Mr. Haskell's request of May 26th, 1983, the original copy . . . had not been returned to the [medical records] Department." *fn1 When asked what he thought had happened to the chart, Forte said:

We suspected that at some point after 1983 -- some point in time after May 26, 1983 when the chart was initially signed out to Mr. Haskell and subsequent to his physical move from one office building to another office building, the medical record may have been misplaced or that he may have given it to someone, whereabouts currently unknown.

We had a reorganization. Truman Haskell was reassigned and I'm hoping this is accurate, to the corporate office. A Risk Management Department was established with Marilyn Owens assuming some of the responsibilities that Truman Haskell had. Subsequently, Linda Jones. Therefore, I am surmising that they would have shared information in those files.

I think when Truman Haskell moved to the corporate office, which is on campus, a separate building, the subsequent reassignment of responsibilities, the fact that legal also moved about the same time, there was some involvement on their part, I'm sure. The fact that Marilyn Owens' files were subsequently moved even though this was after the fact, much after the fact, it probably was misfiled or has yet to be located somewhere between the move and where they currently are.

Forte acknowledged that Haskell's job included reviewing charts in anticipation of litigation. At trial, as part of plaintiffs' proffer on the "missing evidence" issue, the court permitted a neonatologist, Dr. Cherian, to testify out of the jury's presence that the current practice was for Risk Management to be informed whenever an infant was born with birth trauma. It was his understanding that the same rule obtained in 1982 when Adam was born, but he did not know personally whether Risk Management had been informed in this case. He noted that the standard procedure was for the attending neonatologist or nurse to note on the chart that Risk Management had been contacted, but that there was no such notation on the charts in this case.

At trial, plaintiffs sought to have the Judge instruct the jury that it could infer from the defendants' failure to preserve and produce Nurse Aretino's note that it would have harmed their case. The court, analogizing to "missing witness" cases, observed that those decisions:

support[] my inclination that the Court of Appeals looks with disfavor on creating evidence out of no evidence, which, of course, is what the missing evidence inference does.

The court noted that, "unlike the missing witness inference where a witness is floating around somewhere who is peculiarly available to a party, and the party fails to call the witness," the missing evidence situation is "a little different because its more like a failure to preserve than a failure to produce. . . . The [missing evidence] inference really is an illogical inference because . . . the failure to preserve really doesn't in any logical way give rise to an inference that what was not preserved would have been unfavorable to the party who failed to preserve it." *fn2 Plaintiffs' counsel responded that the inference might indeed not be logical in circumstances where, at the time the records were lost, the party failing to preserve them had no knowledge of a reason (such as of the possibility of a lawsuit) to ...

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