The opinion of the court was delivered by: MADELINE COX ARLEO, Magistrate Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, Shernett Campbell ("Campbell") individually and as
guardian ad litem of Keven Davis, her infant son, brought this
action against the United States of America pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, and the Federally
Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n).
She seeks damages for alleged personal injuries she and her son
sustained during his delivery on July 26, 1999 at Muhlenberg
Regional Medical Center ("Muhlenberg").
Campbell claims that the doctors and nurse-midwives*fn1
employed by Plainfield Neighborhood Health Center ("PNHC"), a
federally funded health center, deviated from accepted standards
of medical care with respect to the delivery of her baby.
Specifically, Campbell contends that Defendants (1) failed to
order a fourth ultrasound during the fortieth week of gestation
to estimate fetal weight when they suspected the baby would be
large for gestational age, and (2) consequently failed to present
an alternative course of delivery, namely, an elective cesarian
section ("c-section"). Campbell gave birth vaginally to a 12
pound 4½ ounce baby, and claims that she and her son suffered
permanent injuries therefrom. Finally, Campbell contends that
upon discharge from Muhlenberg, Defendants failed to advise her
to take stool softeners, which further aggravated her alleged
injuries. From April 19 to April 23, 2004, I presided over a non-jury
trial in which the parties were afforded a full opportunity to be
heard, to examine and cross-examine witnesses, to present
evidence bearing on the issues and to argue the law and the
Below I make the following Findings of Fact and Conclusions of
Law pursuant to Fed.R.Civ.P. 52(a) based on the competent
evidence presented at the trial:
FINDINGS OF FACT:*fn2
1. Campbell, at age thirty-seven, came under the care of PNHC
for her pregnancy on January 19, 1999. She had previously given
birth vaginally to a baby girl weighing approximately 6½ pounds.
(Stip. 1, Jt. Pretrial Order at 1.)
2. Plaintiff received comprehensive pre-natal care as a patient
at PNHC. Campbell was examined at PNHC by experienced certified
midwives, Kathryn McElroy ("McElroy") and Shirley McDuffie
("McDuffie") on eleven occasions between January 1999 and July
1999. (Stip.2, Jt. Pretrial Order at 2.)
3. Ultrasounds were performed three times during the course of
the pregnancy: the first, on February 8, 1999, at approximately
sixteen weeks; the second, on March 2, 1999, at approximately
twenty weeks; finally, the last, performed on May 27, 1999, at
approximately thirty weeks, which showed "appropriate interval
growth," and confirmed a due date of July 26, 1999. (Id.) The
ultrasounds also showed the presence of a fundal fibroid, which
the nurse-midwives monitored appropriately. The fibroid did not
interfere with the growth or development of the fetus. 4. In addition to the ultrasounds, Campbell received two
glucose tests, which confirmed that she was not diabetic.
(Id.) A diabetic pregnant woman is at greater risk for giving
birth to a macrosomic baby.*fn3 (Quartell, at 16.)*fn4
5. Campbell also received genetic counseling and an
amniocentesis to address any possible chromosomal abnormalities
of the fetus. The test results were normal. (McElroy, at 149.) At
trial, there was no dispute that all of the pre-natal care that
the PNHC employees provided up through July 21, 1999 was
appropriate. (Soffer, at 125-27.)
6. On Thursday, July 22, 1999 (four days before her due date),
Campbell was examined by nurse-midwife McElroy during her visit.
At that visit, Campbell complained of pelvic discomfort and pedal
edema (swelling of feet). McElroy was supervising Susan Wells
("Wells"), a student nurse-practitioner, that day. (McElroy, at
150-51.) Wells and McElroy both performed Leopold's
maneuvers*fn5 on Campbell during the visit. (McElroy, at
152.) McElroy also measured the fundal height. (Id. at 153.)
Based on these measurements, McElroy estimated that the baby was
between 8 and 8½ pounds. (Id. at 152.) She did not suspect
macrosomia. (Id. at 159.)
7. After her examination of Campbell, McElroy consulted with
the obstetrician/gynecologist on duty, Robert Beim, M.D. ("Dr.
Beim"), who examined the patient with her. (Id. at 151-52,
157-58.) McElroy's management plan at this point was to induce
delivery on the due date, July 26, 1999. Dr. Beim concurred in this plan. (Stip.3, Jt. Pretrial Order at
2.) Dr. Beim and McElroy discussed the possibility of getting a
fourth ultrasound to check the fetal weight. (McElroy, at 157.)
They recognized that to schedule a Level II ultrasound on a
non-emergent basis would take approximately one to two weeks.
(Id. at 159.) Considering all the factors, including Campbell's
prior vaginal delivery, her large "proven" gynecoid
pelvis,*fn6 and her growing discomfort, Dr. Beim and McElroy
concluded that induction was the appropriate course of treatment.
8. McElroy spoke to Campbell about inducing labor on Monday,
July 26, 1999, her actual due date. (Jt. Exh. 1, at 20; McElroy,
at 153-54.) She did not discuss the option of performing an
elective c-section with Campbell because she did not believe it
was indicated at the time. (McElroy, at 154.) Assessing the
situation with Campbell, McElroy believed that an induction and a
vaginal delivery would be the best course of treatment. (McElroy,
at 153-54.) Campbell agreed, and McElroy scheduled the induction.
9. Student Wells wrote a "progress note" for Campbell's July
22, 1999 visit. (McElroy, at 152.) She entered a note in the
chart which indicated, inter alia, "r/o macrosomia . . . will
induce on 7/26/99." The note also indicated "EFW-?"*fn7 (Jt.
Exh. 1, at 10), but there is no recorded estimated fetal weight
in the chart. McElroy did not review or co-sign the note because
she was on the phone with Muhlenberg scheduling the induction as
well as speaking with Campbell. (McElroy, at 160.) However,
McElroy testified that she did not believe the baby was
macrosomic, and that Campbell was not sent for an induction due to suspected macrosomia.
McElroy's testimony on this point was credible.
10. Campbell was admitted to Muhlenberg on the morning of July
26, 1999 under the care of midwife McDuffie and Dr. Mary Powderly
("Dr. Powderly"), director of the OB/GYN Department at PNHC. (Jt.
Exh. 3, at 12.) She presented weighing 208 pounds, and was having
contractions every six to eight minutes. The admitting
examination revealed that she was already two centimeters
dilated. Campbell was in the early latent phase of labor when she
arrived at Muhlenberg. (Quartell, at 43.)
11. At approximately 9:30 a.m., McDuffie performed a cervical
exam and Leopold's maneuvers on Campbell. (Jt. Exh. 3 at 12;
McDuffie, at 11-12) McDuffie's contemporaneously recorded note
indicated an estimated fetal weight of 9 pounds. (Joint Exh. 3,
at 12.) McDuffie discussed her findings, including estimated
fetal weight, with Dr. Powderly. (McDuffie, at 12.)
12. Dr. Powderly also reviewed Campbell's chart and examined
her. (Powderly, at 174-75.) Dr. Powderly determined that Campbell
had a large gynecoid pelvis. (Id. at 176-77.) She also
estimated the fetal weight of the baby to be approximately 9
pounds, which was large for gestational age,*fn8 but Dr.
Powderly testified that she did not suspect macrosomia. (Id. at
177.) Consequently, Dr. Powderly decided to follow a standard
induction procedure and a trial of labor based on her estimates
of fetal weight. (Id. at 177-78.) Dr. Powderly's testimony on
this point is credible.
13. Anthony Quartell, M.D., Defendants' expert in obstetrics
and gynecology, testified at trial that there are several methods
for estimating fetal weight. These methods include (1) comparing fundal height to gestational age; (2) performing
Leopold's maneuvers; and (3) performing an ultrasound. Neither
method is more accurate than any other. The Court finds Dr.
Quartell's testimony to be trustworthy and supported by his
expertise in obstetrics.
14. After consultation, Dr. Powderly and McDuffie explained the
induction and trial of labor plan to Campbell. Dr. Powderly
explained to Campbell that she felt Plaintiff could successfully
deliver vaginally and that the induction of labor would proceed
according to standard protocol. (Id. at 175-76.) Furthermore,
Dr. Powderly informed Campbell that in case of any difficulty,
such as labor failing to progress, the patient "[falling] off
Friedman's curve,"*fn9 or fetal distress, Dr. Powderly would
perform a c-section.
15. It was undisputed at trial that Campbell's labor did in
fact proceed normally, in accordance with Friedman's curve. From
the point of Campbell's induction, throughout her delivery, labor
did not fail to progress. (Soffer, at 127.) Indeed, Plaintiff's
expert for obstetrics and gynecology, Jeffrey C. Soffer, M.D.,
testified that ...