Charlton v. Troy

236 A.3d 22

Alex and Kira CHARLTON, Individually and as Parents and Natural Guardians of G.C., a Minor

v.Steven M. TROY, D.O., Han Ob-Gyn Associates of Delaware County, Health Access Network, Delaware County Memorial Hospital and Crozer-Keystone Health System

Appeal of: Delaware County Memorial Hospital

Alex and Kira Charlton, Individually and as Parents and Natural Guardians of G.C., a Minor

v.Steven M. Troy, D.O., Han Ob-Gyn Associates of Delaware County, Health Access Network, Delaware County Memorial Hospital, and Crozer-Keystone Health System

Appeal of: Steven M. Troy, D.O., Han Ob-Gyn Associates of Delaware County, Crozer-Keystone Health System, and Health Access Network

No. 2937 EDA 2018

No. 2945 EDA 2018

Superior Court of Pennsylvania.

Argued: August 28, 2019

Filed: July 16, 2020

Reargument Denied: September 23, 2020

John Jacob Hare, Philadelphia, for appellant.

Howard Jonathan Bashman, Willow Grove, for appellees.

Joseph A. Del Sole, Pittsburgh, for Troy, participating party.

Maureen Murphy McBride, West Chester, for Troy, participating party.

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:

Appellants Steven M. Troy, D.O., HAN OB-GYN Associates of Delaware County ("HAN"), Delaware County Memorial Hospital (the "Hospital"), and Crozer-Keystone Health System ("Crozer") (collectively, "Defendants") appeal from the September 7, 2018 judgment in favor of Alex and Kira Charlton, individually, and as parents and natural guardians of their minor daughter, G.C. (collectively, "the Charltons"), in this medical malpractice case. After thorough review, we vacate the judgment and remand for a new trial.

The facts pertinent to our review are as follows. On March 2, 2011, Mrs. Charlton underwent routine pre-natal testing at the Hospital. At that time, she was thirty-seven and one-half weeks pregnant with twins. Earlier testing had confirmed that the twins shared a placenta, but each baby had her own sac. The ultrasound that day revealed that "Twin B" was twenty-five percent smaller than "Twin A," which was an indication of discordant growth. Also noted was some tachycardia in Twin B. Dr. Stephanie Pearson, Mrs. Charlton's primary OB-GYN, decided to induce labor.

Induction of labor commenced at approximately 5:00 p.m. that evening and labor progressed throughout the night. Shortly before 5:00 a.m., Mrs. Charlton was taken to the operating room to deliver the twins. An ultrasound performed at that time depicted both babies in the optimum head-down (vertex) position. However, Dr. Pearson determined that Mrs. Charlton was not fully dilated, and thus, not ready to deliver, and sent her back to the labor room.

At 7:00 a.m., there was a shift change at the Hospital and Dr. Pearson was replaced by Dr. Troy. Labor progressed and Mrs. Charlton was taken to the operating room during the early afternoon of March 3, 2011. At 1:08 p.m., Dr. Troy delivered Twin A, I.C., who presented in a vertex position, without complication. Just minutes later, he reached into the uterus and felt the feet of Twin B, G.C., a presentation known as a footling breech. He ruptured the membranes at 1:16 p.m. Using the Mauriceau maneuver, which "confirms that the baby's head is in flexed position when it arrives in the vagina, and maintains it there[,]" Dr. Troy proceeded to deliver Twin B. N.T., 1/15/18, at 228. As the second twin's legs and body rested on Dr. Troy's forearm, her head and shoulders emerged with the first push at 1:18 p.m. She was placed in the warming bed and examined. It was noted that she had poor tone in her upper extremities, head, and neck.

Nurse Caroline Murdaco was the primary labor and delivery nurse for the twins. She testified that for the delivery of G.C., Dr. Troy had his hand on the top of Ms. Charlton's abdomen. When he removed it to rupture the membranes, she placed her hand there in order to follow the head of the baby as it descended, which she testified is the proper procedure with a breech birth. As the second baby's head and shoulders were being delivered, a "snapping" or "popping" sound was heard in the delivery room. Nurse Murdaco looked to see what was going on with the baby, and saw nothing. At the time the pop was heard, Nurse Murdaco confirmed that Dr. Troy was not "doing any sort of maneuvering, pulling, stretching, twisting, rotating, anything at the moment." N.T., 1/16/18, at 163. Nurse Murdaco filled out an incident report describing that "a popping sound was heard by patient and staff" because she had never heard such a sound before and was afraid that perhaps they had injured Mrs. Charlton's hip, knee, or back. Id .

G.C. was later moved to the neonatal intensive care unit (NICU) at the Hospital as there was concern for a possible cervical and thoracic spinal cord injury. Several days later she was transferred to Children's Hospital of Philadelphia ("CHOP"), where an MRI was performed on March 8, 2011. The MRI revealed "no definite abnormality of the cervical spine" but the reliability of the reading was qualified by a note that G.C.’s positioning during the test was less than optimal. An MRI performed eight months later, on November 9, 2011, depicted "evolution of a remote subdural hematoma with myelomalacia of [G.C.’s] spinal cord" and "[n]umerous foci ... in keeping with pseudomeningolcele formation related to nerve root avulsion injury." Plaintiffs’ Exhibit P16B-MRI Report, 11/9/11, at 22-23. In short, G.C. had a permanent spinal cord injury.

The Charltons commenced this action on February 20, 2013, alleging that Dr. Troy was negligent, and that his negligence caused G.C.’s neurological injuries. Liability against HAN was premised on vicarious liability for the conduct of Dr. Troy. The Charltons also alleged that Dr. Troy was the ostensible agent of the Hospital and Crozer.¹ Defendants maintained that Dr. Troy complied with the standard of care in every respect, and that G.C.’s injury occurred in utero due to intra-uterine growth restriction (IUGR) caused by placental insufficiency.

A jury trial commenced on January 5, 2018. At that time, G.C. was six years old. She attended first grade with her twin sister and was a good student academically. However, she could not walk due to decreased muscle tone and paralysis of the lower extremities. She also exhibited weakness of the muscles in the upper extremities, and her right arm was atrophied.

At trial, liability was hotly contested and numerous medical experts testified for each side. Mr. and Mrs. Charlton described the events surrounding the birth of their twin girls. They also offered the testimony of their expert in maternal-fetal medicine, Dr. Benjamin Hamar. Dr. Hamar opined that the standard of care when delivering a second twin in a footling breech position is to perform an ultrasound to determine if the infant's head is in a flexed position. If the head is deflexed or hyperextended, he opined that a cesarean section ("c-section") should be performed. If the head is flexed, a vaginal delivery may be undertaken as long as ultrasound is used throughout to ensure that the infant's head remains in the flexed position. In Dr. Hamar's opinion, Dr. Troy breached that standard of care when he failed to perform the initial ultrasound, and then when he proceeded with the vaginal delivery without the benefit of ultrasound surveillance. It was Dr. Hamar's opinion, to a reasonable degree of medical certainty, that Dr. Troy's deviation from the standard of care caused the injury to G.C. in one of two ways: either he delivered the baby with a malpositioned head, or he exerted too much traction on the head. See N.T., 1/10/18, at 293.

In anticipation of Defendants’ contention that the injury to G.C. occurred in utero due to placental insufficiency and the resulting IUGR, Dr. Hamar noted that G.C.’s weight was not twenty-five percent lower than I.C.’s weight. Additionally, Dr. Hamar maintained that if the placenta was not supplying the necessary nutrients to sustain both twins, one would have seen low amniotic fluid. Furthermore, a Doppler assessment of the umbilical cord would have indicated growth restriction. Dr. Hamar pointed out "[a]ll of those things were normal for [G.C.] and [I.C.] on the ultrasound. Id . at 259. In addition, both babies were active throughout labor, which he called "a very reassuring sign." Id . at 272.

The Charltons also offered the testimony of Dr. Robert Clancy, a pediatric neurologist, who opined that the location of G.C.’s spinal cord injury was "classic" for trauma due to hyperextension at delivery. Id . at 154. He also characterized the avulsion injury to the nerve roots as stretch injuries, and explained that "traction" is a term used to describe a pulling force, as opposed to pushing. Id . at 137.

Pediatric neuroradiologist Paul Caruso, M.D., the Director of Pediatric Neuroimaging at Massachusetts General Hospital, opined on behalf of the Charltons that injury to G.C.’s spine was caused by trauma "at birth or right around birth." N.T., 1/10/18, at 30. He noted that nerve roots were ripped and torn due to a pulling motion that resulted in detachment. Dr. Caruso dismissed the notion that such injuries were congenital, and testified that he had "never seen nor seen reported the occurrence of these particular findings in utero [,]" leading him to conclude that "the findings occurred at birth." Id . at 46.

The Charltons also presented the expert testimony of Dr. Scott Kozin, a pediatric orthopedic surgeon specializing in spinal cord and brachial plexus injuries, and who had treated G.C. since she was two years old. He opined that the tearing of the dura of the spinal cord, as well as the avulsion of the nerve roots, were traumatic injuries, and that the damage is irreparable. See N.T., 1/12/18, at 23-24, 28. Placental pathologist, Dr. Theresa Boyd, opined that the twins’ placental compartments were normal and there was no abnormal pathology in the umbilical cords. In addition, the Charltons offered numerous witnesses to...