Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons,
JJ., and Whiting, S.J.

KACIE HOWERTON, AN INFANT, ET AL.           OPINION BY
                                    SENIOR JUSTICE HENRY H. WHITING
v.   Record No. 011557                     June 7, 2002

MARY IMMACULATE HOSPITAL, INC.

        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                   H. Vincent Conway, Jr., Judge

      In this medical malpractice action, we review the trial

court's ruling in striking the plaintiffs' evidence on the

ground that it was insufficient as a matter of law to establish

either that the defendant was negligent or that such alleged

negligence was the proximate cause of the damages claimed.

Because the trial court struck the plaintiffs' evidence, we

state the evidence in the light most favorable to the

plaintiffs.   E.g., Hadeed v. Medic-24, Ltd., 237 Va. 277, 281,

377 S.E.2d 589, 590 (1989) (court struck evidence after jury

failed to agree upon a verdict).

      On March 27, 1997, Lora Howerton, the only patient in the

labor and delivery rooms of the Mary Immaculate Hospital, was

awaiting the birth of her first child, later named Kacie

Howerton.   A number of relatives were in the room with the

expectant mother.

      That morning, at the direction of Dr. Kathy O'Connell, Mrs.

Howerton's obstetrician/gynecologist, labor and delivery nurses

employed by the hospital administered Pitocin, a drug designed
to induce labor.   When Dr. O'Connell examined Mrs. Howerton at

2:25 p.m., Dr. O'Connell thought that the frequency of her

contractions and the dilation of her cervix indicated Mrs.

Howerton was in the early stages of labor.      Dr. O'Connell

directed that the Pitocin be continued and she did not expect

the mother’s cervix to be sufficiently dilated for delivery of

the baby for some time.    Although Dr. O'Connell left the

hospital, she was available to be contacted through the hospital

paging system.

     At 2:30 p.m. Mrs. Howerton was experiencing more intense

contractions than she had that morning but the resulting pains

were broad in nature, rather than in one particular spot, and

the pains were not excruciating.       However, at 3:00 p.m., Mrs.

Howerton testified that she experienced intense and different

abdominal pains as if "someone had taken a knife and stuck it

directly in me at that spot and twisted it."      Mrs. Howerton

asked one of her relatives to get a nurse so that she could tell

the nurse of the new and "totally different" pain.

     Whereupon, Howard Linwood Howerton, her husband, went to

the nurses' station adjoining Mrs. Howerton's labor room and

told the nurses that his wife was "in severe pain.      We need

somebody to come in here now . . . she feels it's not normal."

The response was: "It will be a few minutes.      We're in the

middle of shift change."   Later, when Mrs. Howerton's mother


                                   2
went to the nurses' station and stated that "My daughter needs

you now . . . she’s having sharp pains," she received the same

response.    Two of the nurses finally came to the room at 3:15

p.m. after Mrs. Howerton's father, using strong language,

demanded that they do so.

     The husband testified that when the nurses "came in the

room and realized that something was going on . . . [one nurse]

yelled, 'Stat.' "   "Stat" is a code word which signifies an

emergency situation.

     There was a further delay in contacting the doctor because

the one nurse suggested they not call the doctor "yet."   Some

time later, at 3:23 p.m., another nurse, who disagreed with the

first nurse, paged Dr. O'Connell on the doctor's cellular

telephone using the "stat" designation of an emergency

situation.   At that time, Dr. O'Connell was in her car some

distance away from the hospital.

     When the doctor answered the emergency page at 3:25 p.m.,

she was advised that the undelivered baby's heart rate was in

the "60s to 70s" (a normal heart rate being from 120 to 160) and

that the mother was having some abdominal pain.   Dr. O'Connell

learned that the infant's heart rate "had been down for a while,

but [did not] recall exactly how many minutes at that point."

     As Dr. O'Connell was driving rapidly toward the hospital,

she called the labor room again at 3:30 p.m. and learned that


                                   3
the baby's heart rate was "still low in the 60s to 70s."        At

that time "we started talking about moving her back to the

operating room for a C-section."       The doctor described a

Caesarian section or C-section as "the most expeditious way to

deliver a baby in an emergency situation."      Dr. O'Connell

testified that if a reasonably prudent obstetrician/gynecologist

is informed that "a patient was experiencing sudden pain that

was out of the ordinary and there were some decelerations of the

heart rate, one may start to think about a C-section."

     Dr. O'Connell was able to deliver Kacie Howerton by C-

section at 3:55 p.m., promptly after her arrival, because she

had alerted the hospital to set up the C-section as she was

driving toward the hospital.   After Kacie's delivery, it was

discovered that the mother's uterus had ruptured in three places

during labor resulting in extensive neurological damage to

Kacie.

     Georgia Holder, a nurse with extensive experience in labor

and delivery nursing, qualified as an expert witness on the

standard of care required of labor and delivery nurses.         In

Nurse Holder's opinion, this standard of care required one of

the labor and delivery room nurses immediately to have gone to

Mrs. Howerton when "notified of this worsening pain," evaluate

her condition, and notify her physician.




                                   4
     Dr. Robert Juskevitch, an obstetrician/gynecologist, also

testified as an expert witness.   Dr. Juskevitch stated that an

expectant mother's complaints of pain of a different type and

character and intensity than labor pains prior to delivery of

the baby "could [indicate] a ruptured uterus, also could be a

separation of placenta."   Hence, in the performance of the

requisite standard of care, a reasonably prudent physician

should immediately go to the mother's bedside and be prepared to

perform any necessary C-section within 30 minutes of being

informed of such complaints.

     Dr. Juskevitch also testified that Mrs. Howerton's

complaints of a new and different deep, sharp, and knife-like

pain indicated that there was "a rupture [or tearing of the

uterus] that occurred at 3:00 [p.m.], and in general, things

like this tend to be progressive."    "It might start out as a

small tear and extend, become larger, over time."   Dr.

Juskevitch opined that these knife-like instances of pain were

associated with episodes of increased tearing.

     Dr. Juskevitch explained that these instances of tearing

presented challenges to the unborn baby which began when the

first tear occurred at 3:00 p.m., and were evident at 3:17 p.m.

when "the nurses came into the room, realized that the baby's

heart rate was erratic."   However, if these partial and

progressive tears had not ruptured the blood vessels from which


                                  5
the unborn baby received its necessary oxygen through the blood

flowing through the mother's uterus to the placenta and from it

to the baby, Dr. Juskevitch did not think that the baby would

have suffered neurological damage provided it was delivered

promptly after the tearing occurred.

     Dr. Juskevitch opined that if Dr O'Connell had been

informed at 3:09 p.m., the baby should and would have been

delivered by 3:39 p.m.    Because Dr. O'Connell was not advised by

the nurses of the change in the mother's condition until 3:25

p.m., the baby was not delivered until 3:55 p.m., thirty minutes

after Dr. O'Connell responded to the delayed page.

     This delayed delivery was 46 minutes after the doctor

should have been called at 3:09 p.m. and 16 minutes after the

baby would have been delivered at 3:39 p.m., had the doctor been

called at 3:09 p.m. 1   According to Dr. Larry E. White, a child

neurologist called as an expert witness by the plaintiff, if the




     1
      The time of 3:09 p.m. was used as a basis for Dr.
Juskevitch's opinion because counsel for the defendant suggested
to the court that Nurse Holder had testified this was the time
when the nurses should have come in, evaluated the patent after
her complaints of a worsening pain and immediately notified the
doctor of this change in the nature of the pain. Counsel was
wrong about the time; Nurse Holder testified that the nurses
should have come in when the relatives told them of the
worsening pain and the husband's evidence was that he did so at
3:00 p.m. Had the correct earlier time been the basis for the
opinion, the time period for a safe delivery would have
increased.

                                  6
baby had been delivered 15 minutes before 3:55 p.m., or by 3:40

p.m., she would have sustained no neurological damage.

     Kacie, by her mother and next friend, and Kacie's parents

joined in this action against Mary Immaculate Hospital to

recover damages arising from Kacie's delayed delivery.   The

plaintiffs have not appealed the trial court's limitation of

their claims to the following: (1) Kacie, for her injuries and

disabilities, (2) Kacie's parents, for their medical expenses,

and (3) Kacie's mother, for her emotional distress. 2

     During the several-day jury trial, the court denied the

defendant's motion to strike the plaintiffs' evidence made at

the conclusion of the plaintiffs' evidence but took under

advisement the same motion made at the conclusion of all the

evidence.   When the jury was unable to agree upon a verdict

following deliberation for a period of over two days, the court

discharged the jury, declared a mistrial, and, after additional

argument, finally struck the plaintiffs' evidence and entered

summary judgment for the defendant.   The plaintiffs appeal.

     The plaintiffs contend that their evidence was sufficient

to raise two factual issues: (1) whether the nurses were

negligent in their delayed response and notification of Dr.

O'Connell; and (2) whether that negligence was a proximate cause




                                 7
of Kacie's neurological disabilities and the other damages

claimed.   During oral argument on appeal, the defendant

conceded, and we agree, that the evidence was sufficient to

create a jury issue regarding the alleged negligence of the

nurses.    Defendant argues, however, that the plaintiffs'

evidence was insufficient as a matter of law to establish that

such negligence was a proximate cause of the damages sustained.

     To support that claim, the defendant argues that, even if

the nurses were negligent between "3:00 and 3:11," 3 there was no

evidence that, had the necessary information been communicated

to a reasonably prudent obstetrician/gynecologist during that

period, anything he or she would or should have done "would have

changed the result to Kacie."   We do not agree with the

defendant.

     The defendant fails to state the evidence and all

reasonable inferences deducible therefrom in the light most

favorable to the plaintiffs whose evidence was struck, as

required by well-settled appellate principles exemplified in

Hadeed.    Instead, the defendant seeks to confine the crucial

period of its negligence to an 11-minute period, overlooking

evidence in the record from which a jury could have found that


     2
       We refused the defendant's appeal of the court's
recognition of the mother's right to assert a claim for
emotional distress.
     3
       The defendant does not cite a source for its 3:11 p.m.


                                  8
its negligence extended over the 25-minute period before the

nurses informed Dr. O'Connell of the mother's change of

condition.   The jury could have found that this 25-minute

period, when combined with the 30-minute period it took Dr.

O'Connell to deliver Kacie after the 25-minute delayed

notification, effectively destroyed Kacie's chances of being

delivered without neurological damage.

     This was because Dr. White opined that the neurological

damage to Kacie occurred 15 minutes before her birth at 3:55

p.m. and that no such damage would have occurred if Kacie had

been delivered 16 minutes earlier, or by 3:39 p.m.   Thus, the

jury could have found that had Dr. O'Connell been notified by

3:09 p.m., she would have delivered Kacie without neurological

damage by 3:39 p.m. 4

     Indeed, the jury could have found proximate causation even

under the theory of the defendant's expert witness, Dr. Jay Paul

Goldsmith.   He opined that the uterine rupture was complete and

the blood flow to the fetus had entirely ceased between 3:23

p.m. and 3:25 p.m. and that "you had 10 to 20 minutes after that

when the injury occurred."   Reviewing this evidence in the light


hypothesized time and we were unable find one.
     4
       The defendant advisedly does not claim that Dr. O'Connell
negligently delayed Kacie's delivery. Three doctors, two of
whom were defendant's experts, testified that a 30-minute
reaction time after the doctor’s notification was within the
standard of care.


                                 9
most favorable to the plaintiffs, the jury could have concluded

that if Dr. O'Connell had been called promptly at 3:00 p.m., the

baby could have been delivered without extensive neurological

damage at any time up to 3:45 p.m., "20 minutes after" the blood

flow entirely ceased.

     In explaining why it sustained the defendant's motion to

strike the evidence, the trial court discussed and rejected

parts of Dr. Juskevitch's opinion which conflicted with the

opinions of the defendant's experts.   In doing so, the trial

court violated the principle we articulated in a similar

situation in Austin v. Shoney's, Inc., 254 Va. 134, 138, 486

S.E.2d 285, 287 (1997), by assessing the weight and credibility

of the evidence and rejecting inferences favorable to the

plaintiffs which did not defy logic and common sense.

     Reviewing the evidence in accordance with the principles

set forth above, we conclude that the evidence was sufficient to

raise a jury issue regarding the nurses' negligence and whether

such negligence proximately caused Kacie's injuries and the

other injuries and losses claimed.   Hence, we hold that the

trial court erred in striking the plaintiffs' evidence and in

entering summary judgment for the defendant.

     Accordingly, we will reverse the judgment in favor of the

defendant and remand the case for a new trial.




                               10
     Reversed and remanded.




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