Greedy Trial Lawyer
Scapegoating The Nurses Caught By Arkansas Supreme Court
Category: Gaming The System
Nice try, Dr.Costa. The legal sleight of hand of your defense attorneys was pretty good. You almost skated free by convincing a jury that if nurses committed malpractice your own conduct, no matter how negligent, should not create any liability on your part for the cerebral palsy of a newborn. The Arkansas Supreme Court, according to the Hope Star News, has caught this miscarriage of justice and sent you back to a jury trial over your conduct or misconduct. You see, sometimes there is more than one bad actor contributing to a serious injury. Nurses are certainly involved in pre-delivery care, but they do not have a big red Scapegoat printed on their foreheads.
High court sends lawsuit back for new trialBy KEN McLEMORE, Hope Star News Editor
The Arkansas Supreme Court has overturned the verdict of an Hempstead County civil jury in a 2004 lawsuit against a former Hope physician because the judge hearing the case allowed a change to the standard form of jury instruction, which the high court said unfairly weighted a presumption regarding negligence in favor of the doctor.
The court sent the lawsuit by Daphne and Larry England against former Hope physician Dr. Emil Costa back to Eighth Judicial District-North Circuit Judge Duncan Culpepper for a new trial.
Supreme Court Associate Justice Tom Glaze, writing for the court in a Nov. 10 opinion, said the changes made to the standard jury instruction AMI Civil 4th 602 by Culpepper could not be considered “harmless error” on Culpepper's part.
“Without the giving of the erroneous instruction, it would have been clear that the jury determined that Dr. Costa ‘possessed and applied with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same type of practice in the locality in which he practices, or in a similar locality,' and that there was no negligence on his part that was the proximate cause of Morgan's injuries,” Glaze wrote.
That circumstance followed from the facts in evidence that after Daphne England became pregnant in 1997 and had not gone into labor at the time of her due date of Dec. 24, 1997, that Dr. Costa advised her to see him on Dec. 31, 1997.
After determining that Mrs. England still had not gone into labor, Costa scheduled a “nonstress test” for her on Jan. 2, 1998, at Medical Park Hospital in Hope. Monitoring during the course of the test showed a baseline heart rate for the baby of about 120, within normal ranges, Glaze wrote.
“At 4:16 a.m., however, the baby's heart rate dropped down, went back up, and then dropped back down again,” he wrote. “This deceleration, or slowing of the heart rate, lasted about four minutes. The nurse attending England did not inform Dr. Costa of the deceleration.”
Testimony during trial also showed that after reviewing the findings, Costa determined that the results were “within a normal range,” and he sent Mrs. England home for another day.
Further testimony at trial showed that through the course of Jan. 2, 1998 to Jan. 4, 1998, Costa reviewed Mrs. England's condition, but did not order an induced labor. Testimony evinced that about 12:30-12:40 p.m. on Jan. 4, 1998, Mrs. England showed a cervical dilation of one centimeter, and Costa ordered the administration of Cytotec to induce labor.
“England experienced a deceleration around 1:30 p.m., but the nurse on duty failed to tell this to Dr. Costa,” Glaze wrote.
After returning to the hospital at about 6 p.m., Costa reviewed the monitoring results, and was told by the attending nurse that nothing unusual had occurred. Mrs. England remained in the hospital through the night, experiencing regular birth contractions with no distress. Glaze wrote that Costa “decided to let England's labor move forward, as opposed to performing a cesarian (sp) section.”
Before retiring for the night, Costa left instruction that if Mrs. England did not go into labor by 3-3:30 a.m. the next morning, she was to be given Pitocin to induce labor.
At 2:21 a.m., Jan. 5, 1998, Mrs. England asked nursing assistance to go to the bathroom, and nursing notes in evidence indicate at that time “the baby was still doing well.”
“However, according to Dr. Costa's testimony, the urge England felt was more than likely the baby's head putting pressure on her pelvis,” Glaze wrote. “Dr. Costa averred that the nurses should have conducted a pelvic examination and called him to return to the hospital. No pelvic exam was performed until 2:40 a.m., at which time the nurses noticed that England's cervix had dilated to nine centimeters.”
Costa was not informed until 2:51 a.m., when a nurse called to tell him the baby's heart rate had dropped and was not returning to normal.
“Dr. Costa immediately called for an emergency cesarian section and returned to the hospital, but when he arrived at the operating room, no surgical staff was present,” Glaze wrote. “Dr. Costa ended up performing an emergency cesarian (sp) section with only one nurse present to assist him.”
Testimony showed that Morgan England was born with cerebral palsy, “which, according to England's expert witness, was most likely caused by a ‘significant hypoxic insult in the time immediately prior to the emergency cesarean section.'”
Prior to trial, the hospital settled its portion of the lawsuit with the Englands for $2.5 million, and at trial of their claim against Costa the jury was informed of the settlement “and admitted that the negligence of the hospital and the nurses was a proximate cause of their damages.”
Consequently, Glaze wrote, at the close of testimony in the suit against Costa, an instruction to the jury was written based from AMI Civ. 4th 602. Glaze wrote that the standard instruction provides that “'[e]very person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will [use ordinary care] [and] [obey the law]. To act on that assumption is not negligence.'”
Glaze wrote that the Englands contended the instruction was used in Arkansas only in automobile accident cases in which “contributory negligence” was an issue.
Instead, Culpepper allowed the revision of the standard jury instruction to read, “Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.”
The jury ultimately returned a verdict in Costa's favor on Feb. 26, 2004, and the Englands appealed that verdict.
“The effect of the erroneous instruction, they contended, was that the jury was urged toward the defense's theory of the case and rendered a verdict that was contrary to the preponderance of the evidence,” Glaze wrote. “By telling the jurors that Dr. Costa had a right to rely on the nurses to use ordinary care, the Englands assert, there was no way that Dr. Costa could have been found negligent.”
Glaze said that after reviewing Arkansas cases and other precedents the high court agreed.
“Further analysis of cases from other states with a similar jury instruction makes it plain that the instruction should only be given when contributory negligence is an issue,” he wrote. “In sum, where there is no evidence of contributory negligence, AMI 602 should not be given.”
Glaze said the utilization of the instruction within the context of the current case before the court “was entirely improper, and is not to be countenanced.”
“Obviously, there was neither evidence nor intimation that Daphne England was negligent in any manner,” Glaze wrote. “The trial court was clearly wrong in giving AMI 602 in any form.”
Consequently, Glaze wrote that since the Arkansas Supreme Court has never before disallowed the retrial of an issue “when a trial court gives an erroneous instruction involving the trial mechanism to be used in deciding either a civil or criminal case, we will not require the appellant to demonstrate prejudice.”
Glaze said that “because it is impossible to determine the degree to which the improper instruction tainted the jury's consideration of Dr. Costa's negligence, we must reverse and remand this case.”
Associate Justice Jim Gunter of Hope did not participate in the case.
Costa, who practiced in Hope for about five years in association with Medical Park Hospital, has since moved, according to MPH Chief Executive Officer Jimmy Leopard.
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Comments
This is just great. The only problem is that increasing the rate of c-sections to about 25% of all deliveries hasn't dropped the rate of cerebral palsy one iota. Additionally, nearly every birth that I've been in on has had multiple decelerations, suggesting that decelerations alone don't prove anything. Finally, the current thought is that cerebral palsy is an inherent defect in the brain itself that makes an infant more susceptable to the stress of deliveries, and hence, may demonstrate more decelerations. In other words, the decelerations didn't cause the CP, the CP caused the decelerations. But of course, lets throw science out the window, play on the emotions of this sad case, ram the doc up the azz with a big 'ol lawsuit, and then sit back to enjoy the lucrative windfall for taking 40% of the winnings for your own pockets.
Fricking typical.
Posted by: Just Great at December 23, 2005 11:30 AM