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Gilbert v. Miodovnik

March 18, 2010


Appeal from the Superior Court of the District of Columbia. (CAM7696-05). (Hon. Geoffrey M. Alprin, Trial Judge).

The opinion of the court was delivered by: Fisher, Associate Judge

Argued September 17, 2008

Before RUIZ, FISHER, and THOMPSON, Associate Judges.

Opinion for the court by Associate Judge FISHER.

Concurring opinion by Associate Judge THOMPSON at page 30.

Dissenting opinion by Associate Judge RUIZ at page 35.

Appellants Saara Abdul-Haqq and Michael Gilbert brought this medical malpractice action on behalf of themselves and their minor son, Ilyaas Gilbert, who suffered severe injuries at the time of his birth. They claim that Dr. Menachem Miodovnik, an employee of the Washington Hospital Center ("WHC"), was negligent because he did not intervene to alter the treatment plan the District of Columbia Birth Center ("DCBC"), an association of nurse-midwives, had developed for assisting the birth. Dr. Miodovnik, who never met or examined Mrs. Abdul-Haqq, discussed her care with a registered nurse-midwife from the DCBC on one occasion. The trial court held that Dr. Miodovnik did not owe a duty of care to the patient and granted summary judgment in favor of the appellees. We affirm.

I. Factual Summary

A. Mrs. Abdul-Haqq's Medical History

In September 2004, acting upon the advice of women at her mosque, Saara AbdulHaqq sought prenatal care from the District of Columbia Birth Center. Mrs. Abdul-Haqq was pregnant with her third child, she was in normal health at the time, and she understood that all of her prenatal care would be provided by the nurse-midwives at the DCBC.

Mrs. Abdul-Haqq had delivered her two older children via cesarean section, but she wanted to attempt a vaginal birth of her third child. The medical profession refers to this procedure as a vaginal birth after cesarean section ("VBAC"). In the course of the treatment she received from the DCBC, Mrs. Abdul-Haqq was advised of the increased risks that a VBAC posed to herself and her fetus. In October 2004 Mrs. Abdul-Haqq signed a consent form which, among other things, identified tearing of the uterus as a risk associated with a VBAC, and indicated that this risk increased if the patient had had more than one cesarean section.

B. The Nurse-Midwives at the DCBC

The nurse-midwives of the DCBC provide health care services to women throughout the birth process, whether they deliver their babies at the Birth Center or in a hospital. When the DCBC manages a client's care, but birth center delivery is deemed inappropriate, the nurse-midwives make arrangements for hospital delivery. The DCBC nurse-midwives regularly assist women attempting a VBAC, and when they do so, the delivery occurs at the Washington Hospital Center.

C. Dr. Miodovnik and the DCBC

Pursuant to a one-page Memorandum of Understanding ("MOU"), Dr. Menachem Miodovnik, the Chief of Obstetrics and Gynecology at Washington Hospital Center Corporation, served as the Director of Medical Affairs of the DCBC. This title is somewhat misleading, however. Under the DCBC Policies and Practice Guidelines, nurse-midwives do not report to the Director of Medical Affairs; they report to the Director of Clinical Services of the DCBC, and the Director of Clinical Services reports to the President and CEO of the DCBC.

As provided in a separate one-page MOU,*fn1 Dr. Miodovnik also served as a consulting obstetrician for the DCBC. Dr. Miodovnik agreed to interact with the nurse-midwives in various ways that ranged from evaluating patient records to "accept[ing] the transfer and medical management" of patients who developed complications. If a transfer to medical management becomes necessary, DCBC clients have the option of choosing their own physician or using the DCBC's consultant or his designee.

D. The Chart Review

On March 21, 2005, Nurse-Midwife Alexander discussed Mrs. Abdul-Haqq's case with Dr. Miodovnik during a routine "chart review" of several patients. According to Dr. Miodovnik, during such routine reviews, he does not actually examine the medical charts of the patients. Instead, the nurse-midwives present the cases and he writes notes.

In this instance, Dr. Miodovnik did not examine Mrs. Abdul-Haqq's chart. Prior to the chart review, Nurse-Midwife Alexander reviewed Mrs. Abdul-Haqq's medical records and recorded pertinent information on a form which she brought to her meeting with Dr. Miodovnik. In addition to sharing the information on the form, Nurse-Midwife Alexander told Dr. Miodovnik that Mrs. Abdul-Haqq "desired a VBAC, that she wanted -- very much wanted to have a vaginal birth." According to Nurse-Midwife Alexander, Dr. Miodovnik expressed concern about the increased risks associated with a VBAC after two prior cesarean sections and advised her to reiterate the risks of the procedure to Mrs. Abdul-Haqq. She testified: "I remember that the patient really wanted a VBAC. He [Dr. Miodovnik] really wanted us to be sure to reiterate the risk to the patient and asked if she had been properly consented and that we do so again." Nurse-Midwife Alexander resisted the suggestion that Dr. Miodovnik had "approved a VBAC for this patient. . . . [H]e was not happy that this patient wanted a VBAC."

Dr. Miodovnik made an entry on the form (later inserted into Mrs. Abdul-Haqq's file) which stated "P at 35/7 weeks gestation. H/O c/s x 2. Pt. Desires VBAC. Pt. understand [sic] that the risk of VBAC after two cesarean section [sic] is much higher for uterine rupture -- fetal death and risk for having increased morbidity for herself. Needs prophylactic antibiotics in labor."

E. Mrs. Abdul-Haqq's Treatment After the Chart Review

According to her deposition testimony, Nurse-Midwife Alexander intended to tell Mrs. Abdul-Haqq -- "like Dr. Miodovnik told [her] to do" -- that she had a higher risk of uterine rupture than other patients. So far as the evidence discloses, however, after the chart review none of the nurse-midwives reiterated to Mrs. Abdul-Haqq the risks of a VBAC after two prior cesarean sections.

After this "chart review" session, the nurse-midwives did not update Dr. Miodovnik about Mrs. Abdul-Haqq's care, and he did not inquire about her treatment. The doctor never met Mrs. Abdul-Haqq, nor did he ever examine her. Mrs. Abdul-Haqq did not know that a chart review had taken place, and she was not aware of Dr. Miodovnik's existence. Up until the time of her delivery, Mrs. Abdul-Haqq did not know that her treatment had been discussed with anyone other than the nurse-midwives at the DCBC.

F. Mrs. Abdul-Haqq's Labor and Delivery

On April 26, 2005, Mrs. Abdul-Haqq went to Washington Hospital Center because she thought she was in labor. At that time, she was still under the care of the DCBC nursemidwives, and a VBAC at the hospital attended by a nurse-midwife was still planned. She was monitored and discharged. That night, Mrs. Abdul-Haqq returned to the hospital and was placed in the care of Nurse-Midwife Mairi Rothman.

Following standard procedure, Nurse-Midwife Rothman notified the backup physician, Virginia Leslie, that one of the DCBC's patients was in labor. Nurse-Midwife Rothman presented the patient's medical history to Dr. Leslie, who expressed concern about the plan for delivery. As a result of this conversation, Dr. Leslie advised Mrs. Abdul-Haqq of the risks associated with attempting a VBAC and recommended a third cesarean section. Mrs. Abdul-Haqq consented, and the hospital staff began preparing for surgery.

Before the operating room was ready, however, the fetal heart monitor indicated that the baby's heart rate was rising, and then the hospital staff began having trouble detecting the heartbeat. Surgery began, and "[u]pon entry into the abdomen and visualization of the uterus, it was clear" that Mrs. Abdul-Haqq's uterus had ruptured. In the early morning of April 27, 2005, Ilyaas Gilbert was delivered through the rupture in Mrs. Abdul-Haqq's uterus. He sustained brain damage and other severe and permanent injuries.

II. Procedural Background

On September 21, 2005, appellants filed a complaint accusing the DCBC, Dr. Miodovnik, and WHC of negligence.*fn2 Dr. Miodovnik and Washington Hospital Center moved for summary judgment, arguing that the plaintiffs' claim of negligence failed because "Dr. Miodovnik owed no duty of care to Saara Abdul-Haqq." Plaintiffs responded, asserting that Dr. Miodovnik "collaborated on developing and approving a treatment plan" that involved an attempt at a VBAC, and that this was a violation of the standard of care.

The Superior Court issued an opinion and order on January 11, 2007, granting the motion of defendants Miodovnik and WHC for summary judgment. After noting that "a review of binding authority on this court has revealed woefully little applicable law to answer the question of when a duty exists between a consulting physician and a patient," the trial court examined the facts of the instant case in light of the decision in Newborn v. United States, 238 F. Supp. 2d 145 (D.D.C. 2002).The court noted, among other factors, that Dr. Miodovnik never met Mrs. Abdul-Haqq; she was unaware of Dr. Miodovnik's existence; "Dr. Miodovnik only considered and commented on plaintiff's medical care on one occasion"; the nurse-midwives were qualified to exercise independent judgment; and Dr. Miodovnik was not paid for the chart review. In light of these factors, the trial court concluded that Dr. Miodovnik's chart review with Nurse-Midwife Alexander "was insufficient to create a duty vis-a-vis plaintiff Abdul-Haqq."

The court noted that its legal conclusion was supported by public policy considerations. Imposing liability on a consulting physician under these circumstances would discourage consultation between health care providers. "Here, the District has seen fit under its regulations to allow nurse-midwives to provide standard primary care for pregnant women, without the aid of a doctor. Encouraging the nurse-midwives to consult with obstetrics professionals is in the public interest. Conversely, extending liability to such consultations, without more, contradicts that interest. The court is unprepared to do this."

The appellants later entered into a settlement with the DCBC. This appeal followed.

III. Standard of Review

We review orders granting summary judgment de novo. See Williams v. District of Columbia, 902 A.2d 91, 94 (D.C. 2006). When doing so, we independently analyze the record in the light most favorable to the non-moving party, drawing all reasonable inferences from the evidence in the non-moving party's favor.*fn3 See generally EastBanc, Inc. v. Georgetown Park Assocs. II, L.P., 940 A.2d 996, 1001-02 (D.C. 2008); Nat'l Ass'n of Postmasters of the United States v. Hyatt Regency Washington, 894 A.2d 471, 474 (D.C. 2006). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super. Ct. Civ. R. 56 (c).

The party moving for summary judgment bears the initial burden of establishing that there is no genuine issue of material fact, and then the burden shifts to the non-moving party to identify specific facts demonstrating a genuine issue for resolution at trial. See LaPrade v. Rosinsky, 882 A.2d 192, 196 (D.C. 2005). To satisfy this burden, the non-moving party must show more than a "metaphysical doubt" or a "scintilla of evidence." Id. "[T]here must be some significant probative evidence tending to support the complaint so that a reasonable fact-finder could return a verdict for the non-moving party." Warren v. Medlantic Health Group, Inc., 936 A.2d 733,737 (D.C. 2007) (citations and punctuation omitted).

In order to defeat a properly-supported motion for summary judgment in an action for medical malpractice, the plaintiff must present a prima facie case establishing the applicable standard of care, showing that the standard of care has been violated, and demonstrating a causal connection between the violation and the damage suffered. See Warren v. Medlantic Health, 936 A.2d at737; Derzavis v. Bepko, 766 A.2d 514, 519 (D.C. 2000); Ferrell v. Rosenbaum, 691 A.2d 641,646 (D.C. 1997). Of course, this abbreviated statement of the elements of proof assumes that the defendant owes the plaintiff a duty of care. "The foundation of modern negligence law is the existence of a duty owed by the defendant to the plaintiff. Negligence is a breach of duty; if there is no duty, there can be no breach, and hence no negligence." N.O.L. v. District of Columbia, 674 A.2d 498, 499 n.2 (D.C. 1996). Accord, Youssef v. 3636 Corp., 777 A.2d 787, 792 (D.C. 2001) ("[A] defendant is liable to a plaintiff for negligence only when the defendant owes the plaintiff some duty of care.").

IV. Statutes, Regulations, and Professional Standards Governing Midwifery in the District of Columbia

The Council of the District of Columbia has recognized the independence of nurse-midwives, and their practice is governed by statutes and regulations. Nurse-midwives are considered to be engaged in advanced practice registered nursing. D.C. Code § 3-1202.04 (b)(1) (2001) ("Advanced practice registered nursing includes, but is not limited to, the categories of nurse midwife . . . ."). Advanced practice registered nurses "may perform actions of nursing diagnosis and nursing treatment of alterations of the health status"; they "may also perform actions of medical diagnosis and treatment" if they are "carried out in accordance with the procedures required by this chapter[,]" D.C. Code § 3-1201.02 (2) (2001), and they may "[m]ake referrals for appropriate therapies or treatments[.]" D.C. Code § 3-1206.04 (3) (2001).*fn4

Advanced practice registered nurses may also obtain clinical and admitting privileges at hospitals. "No provision of District of Columbia law, institutional or staff bylaw of a facility or agency, rule or regulation, or practice shall prohibit qualified advanced practice registered nurses, podiatrists, or psychologists from being accorded clinical privileges and appointed to all categories of staff membership at those facilities and agencies that offer the kinds of ...

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