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CAMPBELL v. U.S.

June 9, 2005.

SHERNETT CAMPBELL, individually and as guardian ad litem of Keven Davis, an infant Plaintiff,
v.
UNITED STATES OF AMERICA Defendant.



The opinion of the court was delivered by: MADELINE COX ARLEO, Magistrate Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

INTRODUCTION

  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 evidence.

  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 ...


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