to be concerned if the LMP given by the patient is inconsistent with tests performed on the fetus. The record is clear, however, that by January 9, 1981 Dr. Smith still had not diagnosed the fetus as suffering from IUGR. He did not diagnose IUGR until later in 1981.
Continental places emphasis on Dr. Smith's comment that he "considered" the LMP in diagnosing IUGR. In any decisionmaking process a careful decisionmaker considers all possible factors before accepting some and rejecting others. When viewed in the light of his very specific comments and the documentary record which indicate a rejection of the LMP, the only reasonable interpretation of this statement is that Dr. Smith did consider the LMP as part of all of the collected information before ultimately rejecting it as a basis for an IUGR diagnosis and the subsequent decision to perform the cesarean section.
The decision to deliver Tracina was based on two test results that, in Dr. Smith's mind, indicated a lack of fetal health: a thirty percent drop in the serum estriol level and insufficient amniotic fluid.
2. Fetal Age
Continental contends that if Dr. Smith had performed serial sonograms in 1980 "he very likely would have discovered that the fetus was at least several weeks younger than he believed" and he never would have performed the cesarean section on February 19, 1981. (Pl. Mem. P & A at 16.)
Dr. Smith testified in his deposition testimony that the age of the fetus was not a factor in his decision to perform the cesarean section. Absent evidence to the contrary, the Court cannot rule that his failure to conduct serial sonograms in the early part of the pregnancy was the proximate cause of Tracina's injury.
At most, Dr. Smith's estimate of fetal age prompted a "concern" that the baby may have suffered from IUGR. This suspicion motivated him to test the serum estriol levels. Dr. Smith's estimate of fetal age, therefore, caused the tests not the cesarean section. Although Dr. Smith's estimate of fetal age is conceivably in the chain of causation, it by no means qualifies as a "dominant cause" of the delivery. It is only the results of those tests and the oligohydramnios finding that proximately caused the delivery.
Continental has not demonstrated how Dr. Smith's estimate of fetal age influenced his perception of the test results thus dictating, in Dr. Smith's view, the cesarean section. In other words, there is no evidence that if Dr. Smith's estimate agreed with that of the Woods's experts the test results would not have prompted him to perform the cesarean section.
The tests results were independent of fetal age. Indeed, Dr. Smith believed that serum estriol levels should not decline, regardless of age. In addition, Dr. Smith's concerns regarding the level of amniotic fluid would have only increased had his estimate of fetal age agreed with that of the Woods's experts.
Continental argues that the chain of causation may not be broken by Dr. Smith's testimony alone. Continental illustrates its point by analogizing to a surgeon who negligently leaves a surgical sponge in a patient and then defends himself by blaming another doctor. In the hypothetical situation, the plaintiff can avoid summary judgment by rebutting the surgeon with evidence (e.g. eyewitnesses, contradiction by the second doctor). If the surgeon's testimony goes unrebutted, then judgment in his favor might be appropriate.
Likewise, Dr. Smith's recollection may be challenged but it cannot be dismissed as insufficient. Continental's burden in this regard is formidable because it must present evidence that reveals Dr. Smith's decisionmaking process. Continental's hypothetical presents a scenario more susceptible of proof. Proof of a physical act (leaving a surgical sponge) is more readily available than evidence of a thought process (factors influencing a decision to operate).
Continental also challenges Dr. Smith's hypothetical claim that he would have delivered Tracina even if he had thought that she was 26 weeks old. Continental argues that this is merely speculation and of no value.
The hypothetical used here is simply a device for isolating the fact that his estimate of fetal age did not influence his decision to operate. The hypothetical contained all facts and medical information known by Dr. Smith on February 18, 1981 with the exception of fetal age. The hypothetical does nothing more than augment his statement that, in the context of actual events, the baby was delivered "regardless of the length of gestation."
Dr. Smith did not base his decision to perform the cesarean section delivery of Tracina Woods on his estimate of Tracina's period of gestation or on the LMP reported by Ms. Woods. The Court, therefore, holds that the record does not contain any 1980 medical incidents which could have proximately caused the injury to Tracina. The Court, therefore, shall grant Hartford's Motion for Summary Judgment and deny Continental's Motion for Summary Judgment.
An appropriate Order is attached to this Memorandum.
JUNE L. GREEN
UNITED STATES DISTRICT COURT JUDGE
Dated: July 25, 1996
Upon consideration of the Plaintiff's Motion for Summary Judgment, the Defendant's Motion for Summary Judgment, all Responses, all Replies, the arguments of counsel, the Statement of Facts filed by the parties and the entire record, it is this 25th day of July 1996
ORDERED that the Plaintiff's Motion for Summary Judgment is DENIED; it is further
ORDERED that the Defendant's Motion for Summary Judgment is GRANTED; it is further
ORDERED that this case is DISMISSED; and it is further
ORDERED that the Clerk shall send a copy of this Order to:
JUNE L. GREEN
UNITED STATES DISTRICT COURT JUDGE