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IN THE SUPREME COURT OF FLORIDA CASE NOS. SC & SC District Court Case No. 4D HUMANA OF FLORIDA, INC., d/b/a/ HUMANA HOSPITAL-BENNETT, n/k/a COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD d/b/a WESTSIDE REGIONAL MEDICAL CENTER, vs. Petitioner, JACOB THOMAS TOMLIAN, a minor, by and through his parents and natural guardians, DORA LEE TOMLIAN, and KEVIN JAMES TOMLIAN; and DORA LEE TOMLIAN and KEVIN JAMES TOMLIAN, individually, Respondents. RESPONDENTS BRIEF ON THE MERITS TODD R. SCHWARTZ, ESQ. SHELDON J. SCHLESINGER, ESQ. GINSBERG & SCHWARTZ ROBERT W. KELLEY, ESQ. 66 W. Flagler St., Suite 410 -and- SHELDON J. SCHLESINGER, P.A. Miami, Florida S.E. Third Avenue Fort Lauderdale, Florida 33316 -ii- TABLE OF CONTENTS TABLE OF AUTHORITIES... -ii- STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. THIS COURT SHOULD DECLINE DEFENDANTS INVITATION TO ADOPT THE DESERIO BRIGHT- LINE RULE THAT PSYCHOLOGISTS ARE INCOMPETENT TO TESTIFY REGARDING THE CAUSE OR EFFECTS OF BRAIN DAMAGE II. THE TWO-ISSUE RULE DOES NOT APPLY IN THIS CASE CONCLUSION...49 CERTIFICATE OF SERVICE...50 CERTIFICATE OF COMPLIANCE...50 APPENDIX TOMLIAN v. GRENITZ, 782 So. 2d 905 (Fla. 4 th DCA 2001)... A.1-4 -i- TABLE OF AUTHORITES Case Page ADAMSON v. CHIOVARO, 705 A.2d 402 (N.J. Ct. App. 1998)...42 ATLANTIC COAST LINE R. CO. v. CROSBY, 43 So. 318, 330 (Fla. 1907)...35 BARTH v. KHUBANI, 748 So. 2d 260 (Fla. 1999)...48, 49 BISHOP v. BALDWIN ACOUSTICAL & DRYWALL, 696 So. 2d 507, 510, 511 (Fla. 1 st DCA 1997)...31 BROOKS v. STATE, 762 So. 2d 879, (Fla. 2000)...35, 39 BROWARD COUNTY SCHOOL BOARD v. CRUZ, 761 So. 2d 388 (Fla. 4 th DCA 2000), approved, 800 So. 2d 213 (Fla. 2001)...27, 28, 30, 31, 32, 40 BUCHMAN v. SEABOARD COAST LINE R. CO., 381 So. 2d 229, 230 (Fla. 1980)...35 COPELAND v. STATE, 50 So. 621, 624 (Fla. 1909)...35 CUNNINGHAM v. MONTGOMERY, 921 P.2d 1355, 1357 (Or. Ct. App. 1996)...41 DAVIS v. STATE, 32 So. 822, (Fla. 1902)...35 DUPONT HOSP. FOR CHILDREN v. PIERCE, 2001 WL755326,*6,*7 (Del. Ct. App.)...43 DRAKE v. LaRUE CONSTR. CO., 451 S.E.2d 792, 793 (Ga. Ct. App. 1995) ii- EXECUTIVE CAR & TRUCK LEASING, INC. v. DeSERIO, 468 So. 2d 1027 (Fla. 4 th DCA 1985), rev. denied sub. nom., COMMERCIAL UNION INS. CO. v. DeSERIO, 487 So. 2d 1293 (Fla. 1985)... passim FABIANKE v. WEAVER, 527 So. 2d 1253, (Ala. 1988)...38, 42 FRED HOWLAND, INC. v. MORRIS, 196 So. 472, 475 (Fla. 1940)...35 GALLAGHER v. COOPER, 471 N.E.2d 468, (Ohio 1984)...48 GIW SOUTHERN VALVE CO. v. SMITH, 471 So. 2d 81, 82 (Fla. 2d DCA 1985)...31 HAAS v. SEEKELL, 538 So. 2d 1333, 1336 (Fla. 1 st DCA 1989)...31 HADDEN v. STATE, 690 So. 2d 573 (Fla. 1997)...39 HOOPER v. IND. COMM. OF ARIZONA, 617 P.2d 538, 539 (Ariz. 1980)...44 HUNTOON v. TCI CABLEVISION OF COLO., INC., 969 P.2d 681, 689, 91 (Colo. 1998)...40 HUTCHINSON v. AMERICAN FAMILY MUT. INS. CO., 514 N.W.2d 882, (Iowa 1994) KINSEY v. KOLBER, 431 N.E.2d 1316, (Ill. Ct. App. 1982)...43 KRIEWITZ v. SAVOY HEATING AND AIR CONDITIONING CO., 396 So. 2d 49 (Ala. 1981) iii- -iv- LANDERS v. CHRYSLER CORP., 963 S.W.2d 275 (Mo. Ct. App. 1997)...43 LOBUE v. TRAVELERS INS. CO., 388 So. 2d 1349 (Fla. 4 th DCA 1980)...48 MADRID v. UNIV. OF CAL., 737 P.2d 74, 76-7 (N.Mex. 1987)...41 MARTIN v. BENSON, 481 S.E.2d 292, (N.C. Ct. App. 1997), rev d on other grounds, 500 S.E.2d 664 (N.C. 1998)...44 McCLAIN v. WELKER, 761 A.2d 155, (Pa.Super Ct.App. 2000), rev. den., 771 A.2d 1286 (Pa. 2001)...38, 43 McCRYSTAL v. TRUMBULL MEMORIAL HOSP., 684 N.E.2d 721, 728 (Ohio Ct. App. 1996)...49 MEANS v. GATES, 2001 WL (S.C. Ct. App. 2001)...42 NICHOLS v. COLONIAL BEACON OIL CO., 132 N.Y.S.2d 72, 76 (N.Y. App. Div. 1954)...44 O LOUGHLIN v. CIRCLE A CONSTRUCTION, 739 P.2d 347, (Idaho 1987)...43 RAMIREZ v. STATE, 651 So. 2d 1164, 1167 (Fla. 1995)...39 ROWE v. STATE, 163 So. 22 (Fla. 1935)...35 SANCHEZ v. DERBY, 433 N.W.2d 523 (Neb. 1989)...42 SENECA FALLS GREENHOUSE & NURSERY v. LAYTON, 389 S.E.2d 184, (Va. Ct. App. 1990)...43 SHILLING v. MOBILE ANALYTICAL SERVICES, INC., -v- 602 N.E.2d 1154 (Ohio 1992)...42 SIMMONS v. MULLEN, 331 A.2d 892, (Pa.Super.Ct.App. 1974) STEWART AGENCY, INC. v. LESUEUR, 785 So. 2d 1242, 1244 (Fla. 4 th DCA 2001)...39 TERRY v. STATE, 668 So. 2d 954, 960 (Fla. 1996)...39 TOMLIAN v. GRENITZ, 782 So. 2d 905, 906, 907 (Fla. 4 th DCA 2001)...31 TUCKER v. AT&T CORP., 794 F. Supp. 240 (W.D. Tenn. 1992)...43 VALIULIS v. SCHEFFELS, 547 N.E.2d 1289, (Ill. Ct. App. 1989)...40 Other Authorities , Fla.Stat....35, , Fla.Stat (4), Fla.Stat....17, 45 N.C. Sess. Laws , 2 (amending (7a), N.C. Gen. Stat vi- STATEMENT OF THE CASE AND FACTS Jacob Tomlian was born with significant and permanent brain damage. (R. XXIV-2293) Broadly termed cerebral palsy or spastic diplegia, Jacob suffers from an array of mental and physical, functional and behavioral deficits including marked weakness and increase in tone in both legs and to a lesser extent motor problems in both arms, language problems, articulation problems, attention deficit hyperactive behavior disorder, severe learning disabilities, deafness in one ear, and an I.Q. in the mentally retarded range. (R. XVII-1281 to 1285) Age 7 at the time of trial, Jacob drools, wears braces on his legs, is incontinent, and tends to wander away if not closely supervised. (Id., at 1280, 1292; R. XXI-1880, 1892; R. XXXVI-3913, 3914) The cause of Jacob s injuries was and is undisputed. Jacob suffered a hypoxic insult (i.e., oxygen deprivation) to his brain in utero. (R. XXIII ; XXIV-2293) The issue in this case is when that insult occurred. Defendants, the delivering obstetrician and maternity hospital, posited that the insult occurred at some undetermined time 26 to 34 weeks into Jacob s mother s pregnancy (8 or more weeks before their alleged malpractice). (R. XV-1034, 1042, 1056, 1057) Plaintiffs maintained the insult occurred during a contraindicated and unduly protracted, failed trial of labor which culminated in Jacob s urgent delivery by cesarean section and necessary resuscitation. (Id., at 968 to 970) -1- The Pregnancy At the time Jacob s mother, Dora Tomlian, became pregnant with Jacob, she returned to the gynecological practice that had delivered Jacob s older brother, Zachary, a few years before. (R. XXXV-3840, 3841) That practice, founded by Defendant Mark Grenitz s father, no longer had an obstetrician in the group, and Dora was referred across the hall to Dr. Grenitz who rented space from them. (Id., at 3845; R. XXVIII-2772 to 2776) At the time he accepted Dora as a patient, Dr. Grenitz had been in practice only a couple of months. (R. XXVIII-2775, 2844) Dr. Grenitz claims to have reviewed Dora s chart from her earlier pregnancy with Zachary which revealed several risk factors : that Dora had fractured her pelvis several years before in an equestrian accident; that Zachary, a big baby with a large head, would not descend; that Dora s uterus did not dilate progressively; that an attempt at Pitocin induction (a drug that enhances labor by stimulating contractions) had failed; and that Zachary had to be delivered by cesarean section following fetal distress. (Id., at 2792, 2793, 2798, 2799, 2802 to 2805, 2813, 2814) When Dora came under the care of Dr. Grenitz, Dora was also 35 years old, another known risk factor, since older mothers produce older eggs. (R. XVI-1090) Second babies also generally tend to be bigger, and Dr. Grenitz conceded (at trial) he was very concerned that she was going to have another large baby. (R. XXVIII-2808) -2- Notwithstanding all of these known risk factors, Dr. Grenitz advised Dora she was a fine candidate for a vaginal birth after cesarean section ( VBAC ), and he urged her to agree to the procedure which she reluctantly did. (Id., at 2804, 2816; R. XXXV-3857, 3858; R. XXXVI-3869) Dora had a normal and uneventful pregnancy with Jacob. She underwent several routine tests to confirm Jacob s health in utero, all of which produced perfectly normal results. (R. XVI-1115 to 1120; R. XXVIII-2822 to 2828) She also submitted to amniocentesis, due to her age, which confirmed the absence of any genetic defects, and she had ultrasound testing which was also perfectly normal but confirmed a big baby. (Id.) At 40 gestational weeks and through Dora s 42 nd week of pregnancy (two weeks past her due date), Dr. Grenitz was naturally becoming concerned, however, about Jacob s size and Dora s lack of progress. (R. XXVIII-2829 to 2838) He rightly ordered several fetal non-stress tests during this period (which are used to detect a potential lack of fetal oxygenation) including tests performed five and two days before Jacob s birth. (Id.) Those too were absolutely normal. (Id.) Dora also felt the baby moving around a lot throughout this period which was good. (R. XXXVI-3870, 3876) Five days before Jacob s birth and well past her due date, however, Dora wanted to schedule a cesarean section. (R. XXXVI-3874) She was extremely worried -3- about trying to deliver another huge baby. (Id.) Dr. Grenitz convinced her to wait a few more days. (Id., at ) She did, but nothing happened. Two days before Jacob s birth, Dora felt some slight contractions and she consulted Dr. Grenitz who sent her to the hospital for evaluation where she was examined and fetal heart tracing was performed. (R. XXVIII-2837, 2838) Dora had not progressed, Jacob was fine, and Dora was sent home, like many expectant mothers, with false labor. (Id.) Two weeks past her due date and carrying a very large baby, Dr. Grenitz then scheduled Dora for an induction. (Id., and at 2841) Labor and Delivery Dora arrived at the Defendant Hospital that Saturday, as scheduled, shortly before 7:00 a.m. (R. XXVIII-2839 to 2841) The maternity unit at Defendant Humana- Bennett had only been in operation for a few months at the time, and no longer is. (R. XXVI-2564, 2565; R. XXXI-3216) Dora fell under the care of Nurse Pacifico who also had only a few months of recent labor and delivery experience and very little in her twenty year career. (Id., and at 2693, 2694) Nurse Pacifico attended Dora throughout the day and until Jacob s birth that evening. (R. XXVI-2561) She also admittedly knew, upon Dora s arrival and from reading her chart, that Dora was at risk for the sundry complications which occurred in her earlier labor and delivery with Zachary. (Id., at 2580, 2581, , 2595, 2596, ) -4- Dora was manually examined upon her arrival at the hospital. She was not in labor, she was having no contractions, and she was only 1 to 2 cms dilated and only 50% effaced (a mother needs to be 10 cms dilated and 100% effaced to deliver). (R. XXVI-2603) She was also at only minus 3 station, which meant the baby had not even begun his necessary descent (pelvic station measurements at the Defendant Hospital ranged from minus 3 at the onset of labor to plus 3 at delivery). (Id., and R. XVI-1150, 1151) At approximately 7:50 a.m., Dr. Grenitz broke Dora s water in an attempt to accelerate the process. (R. XXVIII-2845, 2846) He also wrote a note to wait 45 minutes to begin Pitocin. 1 (R. XXVI-2620, 2622) Dr. Grenitz then examined Dora who remained only 2 cms dilated and 80% effaced. (R. XXVI-2604, 2605) Her station also stayed at minus 2, and she began to experience only mild contractions. (Id.) Three hours later, at 10:50 a.m., nothing had changed except for a slight increase in Dora s contractions. She remained 2 cms dilated, 80 % effaced, and at minus 2 station. (Id., at 2606) At 11:05 a.m., Dora s contractions were noted as moderate to strong, she was in labor, but still nothing else had changed. (Id., at ) She remained 2 cms dilated, 80% effaced, and at minus 2 station. (Id.) 1 As will be seen, Pitocin was not administered until 2:30 p.m., six and one-half hours later. (R. XXVI-2617) -5- At 11:40 a.m., Dora still had not progressed at all, but her contractions had markedly increased both in frequency and strength. (Id.) They were coming two minutes apart and were noted to be strong. (Id.) At 12:30 p.m., Dora was administered an epidural to block the pain of the contractions. (Id., at 2610, 2611) At 1:15 p.m., more than six hours after her arrival at the hospital and five hours since her water had been broken, Dora remained only 3 cms dilated, 80% effaced, and at minus 2 station. (Id., at 2615) It was at this time Nurse Pacifico observed, and advised Dr. Grenitz, that Jacob s heart rate had dropped to a very low 78 beats per minute (normal is 120 to 160 beats per minute). (R. XVI-1215, 1216; R. XXVI-2591, 2592, 2613, 2614) An internal fetal heart monitor was promptly affixed to Jacob s skull at that point to more accurately track his heart rate. (Id.) At 1:45 p.m., Jacob s fetal heart tones measured 80 beats per minute for a continuum of 30 seconds - - not a good thing - - at which point Nurse Pacifico turned Dora on her side and began to administer to her, and thus the baby, oxygen. (Id., at 2616; R. XVI-1215, 1216; R. XXVIII-2852 to 2854) At 2:20 p.m., Nurse Pacifico observed that Jacob was experiencing bradycardia (i.e., a baseline heart rate below 120 beats per minute for a duration of 10 minutes or more). (R. XXVI-2592, 2593, 2646) Notwithstanding these developments, at 2:30 p.m., Nurse Pacifico started to administer the Pitocin Dr. Grenitz had ordered early in the morning. (Id., at 2617, -6- 2624; R. XXVIII-2859 to 2861) It will be recalled that Pitocin promotes the strength and frequency of contractions. At trial, Nurse Pacifico conceded her knowledge that Pitocin administration is contraindicated and potentially harmful when there are any signs of fetal distress or potential hypoxia (i.e., lack of oxygenation). (R. XXVI-2624) She further conceded there was no order in Dora s chart to begin Pitocin at 2:30 p.m., and Nurse Pacifico had no recollection at trial of a second Pitocin order by Dr. Grenitz although she maintained she would not have administered Pitocin without a physician s order. (R. XXVI-2618, 2619) Dr. Grenitz also had no recollection of ordering Pitocin at 2:30 p.m., but in the face of written hospital protocol which required the obstetrician to be present during the first 20 minutes of any Pitocin administration, Dr. Grenitz recalled he may have been present when the Pitocin was administered. (R. XVI-1225; R. XXVIII-2859 to 2862) At 3:30 p.m., after an hour of Pitocin administration and resulting strong and frequent contractions, Dora still remained only 3 cms dilated, 80% effaced, and at minus 2 station. (R. XXVI-2634, 2635) At 3:40 p.m., Dr. Grenitz examined Dora, reviewed the most recent fetal heart tracings, and ordered a cesarean section. (Id., at 2636, 2638) Nurse Pacifico noted his order as urgent, which to her meant it was to be performed as soon as possible. (Id., at 2639, 2640) It was at about this time that Jacob s fetal monitoring strips show a recent -7- pattern of what some of the witnesses in this case identified as late decelerations (i.e., the baby s heart rate is observed going down after a contraction ends as opposed to during the contraction and does not promptly return to baseline [R. XXVI-2592, 2593]), evidence that Jacob was potentially not receiving an adequate and consistent supply of oxygen. (R. XVI-1218 to 1220) Plaintiffs retained expert obstetriciangynecologist noted several lates (in addition to equally concerning severe variable decelerations) beginning around 1:00 p.m., continuing through the 2:00 p.m. period, and markedly recurring following the administration of Pitocin at p.m. 2:31, 2:33, 2:37, 2:40, 2:56, 2:59, 3:01, 3:24, 3:44, 3:59, 4:02, and 4:05, shortly after which Nurse Pacifico suspended the fetal heart tracing (amidst bradycardia). (Id., at 1206, 1216 to 1218, 1230 to 1232; R. XXVI-2648, 2652) At trial, Nurse Pacifico disagreed the strips show any lates, as opposed to less concerning variables. (R. XXVI-2648, 2719, 2720) Defendants retained expert witnesses admitted to a few true lates, characterized the rest as mostly moderate to mild variables, and explained that fetal heart monitoring is subject to some degree of interpretation. (R. XXX-3038, 3100) Unfortunately, and inexplicably, Jacob s original fetal monitoring strips which are, pursuant to law and Hospital policy and procedure, supposed to be attached to and maintained as part of the patient s chart, were unaccounted for in this case. (R. XXVI-2573 to 2575) The Defendant Hospital -8- produced what it represented to be computer generated reproductions of Jacob s strips which were used by the parties experts and which do not contain Nurse Pacifico s notes which would have routinely been made on the original strips concurrent with the events they tracked. 2 (Id.) Dr. Grenitz delivered Jacob by cesarean section at 4:44 p.m., more than an hour after the decision to perform the urgent surgery had been made. (R. XVI-1234) (He denied the cesarean was urgent, notwithstanding Nurse Pacifico s note to the contrary. [R. XXVIII-2869, 2870]) According to Plaintiffs retained expert obstetriciangynecologist, this violated Hospital protocol and the applicable standard of care which requires that all non-scheduled cesarean sections be accomplished within 30 minutes from the time of decision to incision. (R. XVI-1233, 1234) Since fetal heart tracing was suspended at 4:21 p.m. (another violation of Hospital protocol and the standard of care according to Plaintiffs expert), there is no uninterrupted strip record of 2 Also unfortunately, Nurse Pacifico, who has been out of labor and delivery nursing for several years following this incident, claimed to have no independent recollection of anything that happened on the day of Jacob s birth. (R. XXVI-2563, 2566, 2567) Her testimony in this case was informed entirely by what remained in the medical charts. (Id.) She even denied knowledge that Jacob was hypotonic (i.e., limp) and completely colorless at birth, which was observed by all other personnel in the operating room who witnessed the birth. Nurse Pacifico explained her job as a labor and delivery nurse was to attend Dora not Jacob. (R. XXVI ) -9- Jacob s condition from that point until the time of his delivery twenty three minutes later. (Id., at 1235, 1236, 1239) Jacob was observed to be hypotonic (i.e., he had abnormally decreased tone) at birth. (R. XVII-1296; R. XXXI-3184, 3185) He was also blue in color. (Id.) He had a nucal cord (i. e., his umbilical cord was wrapped two times around his neck). (R. XVII-1333) He required one minute of administered oxygen at birth, and he did not cry or otherwise react when given a vitamin K injection. (R. XXI-3187, ) His overall Apgar scores, as reported by Hospital staff, were unremarkable except for a 0 for color and a 1 for heart rate at birth, although these (subjective) scores were concededly changed by someone for reasons unknown. (Id., at , R. XVIII- 1370; R. XXIV-2356) Jacob s legs were also observed to be turned inward and his feet pointed down, but this was initially explained (and treated for more than 18 months) by Hospital staff physicians as an orthopedic, rather than neurologic, problem. (R. XXXI-3225, 3226; R. XXXVI-3888 to 3895) Almost two years after Jacob s birth he was diagnosed by an independent neurologist as having sustained brain damage in utero. (R. XXXVI-3896, 3897) Defendants experts at trial conceded the damaging event occurred in utero and that such damage occurred to an otherwise healthy brain. (R. XXIV-2292, 2293) But for the event, they admitted, Jacob would be perfectly normal. (Id.) -10- The Trial The trial of this complex medical malpractice case naturally promised to be a battle of the experts. The subject matter was already difficult - - the etiology of fetal brain injury - - but the delicate contest over when that injury occurred would determine Defendants liability in this case. Plaintiffs burden was further complicated by the disappearance of the original fetal monitoring strips, by the failure to produce continuous strips for Jacob s final twenty three minutes in utero, and by an amended pathology re
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