In Charlton v. Troy, a Pennsylvania Superior Court nixed a $40 million verdict, ordering a new trial in a birth injury lawsuit alleging excessive traction caused a severe spinal injury.
Facts of Charlton v. Troy
The case revolves around the events that occurred during the birth of the Charlton twins. Mrs. Charlton underwent routine prenatal testing at the hospital when she was 37 and a half weeks pregnant with twins. The ultrasound revealed that “Twin B” was 25 percent smaller than “Twin A,” indicating discordant growth and some tachycardia in Twin B.
Mrs. Charlton’s primary OB-GYN, decided to induce labor. After the labor progressed throughout the night, Mrs. Charlton was taken to the operating room to deliver the twins, but the doctor sent her back to the labor room as she was not fully dilated. Later that morning, Dr. Troy took over the care, and labor progressed again until Mrs. Charlton was taken to the operating room during the early afternoon. The mother was previously told that the babies would be delivered via a cesarean section. But the new doctor opted for a vaginal delivery, which involved pulling Charlton’s body through her mother’s cervix birth canal.
Dr. Troy delivered Twin A, I.C., without complication. Minutes later, he delivered Twin B, G.C., in a footling breech position. A loud popping sound was heard throughout the delivery room during this process. This was not just the parents’ word for it; a nurse also heard the loud popping. It was immediately noted that she had poor tone in her upper extremities, head, and neck. G.C. was moved to the hospital’s neonatal intensive care unit (NICU) and later transferred to Children’s Hospital of Philadelphia, where an MRI revealed that G.C. had a permanent spinal cord injury.
The Charltons filed a birth injury lawsuit alleging that Dr. Troy was negligent and that his negligence caused G.C.’s neurological injuries. As with any significant birth injury lawsuit, numerous medical experts testified for each side, and the liability was hotly contested. The Charltons alleged that Dr. Troy breached the standard of care when he failed to perform the initial ultrasound and proceeded with the vaginal delivery without the benefit of ultrasound surveillance, causing the injury to G.C. in one of two ways: either he delivered the baby in a malpositioned head, or he exerted too much traction on the head.
Defendants disputed this, and their expert witnesses provided alternative explanations for G.C.’s injury. Defendants maintained that G.C.’s injury occurred in utero due to intra-uterine growth restriction (IUGR) caused by placental insufficiency and that the child was born with the spinal injury. That is the classic defense argument you see over and over – it happened before the child was born. It is usually nonsense but, of course, sometimes it happens that way.
The life care planner testified that the child would require continuous physical and occupational therapy, personal assistance, and regular medical check-ups for the rest of her life. She will likely, bar great scientific advancement we all should pray for, be confined to a wheelchair for the rest of her life and will be unable to feed herself. An economist estimated that her future medical expenses would amount to $29 million.
The jury returned a verdict in favor of the Charltons and against all of the Defendants, finding that Dr. Troy’s conduct fell below the standard of reasonable medical care and was the cause of harm to G.C. The jury also found that Dr. Troy was the apparent agent of the Hospital and Crozer and awarded $40,258,000 in damages. The verdict was later molded to include delay damages. The liability verdict was not unanimous, with ten jurors voting in favor of the Charltons and two voting against the defendants. The defendants appealed, requesting a new trial.
Defendant’s Argument on Appeal
Defendants claimed that the plaintiffs’ expert did not establish a standard of care for using traction or breach of that stand d. That argument did not go anywhere.
But what did gain currency with the court was judges was the trial court’s allowing Charltons’ birth injury lawyer to use the Neurology of the Newborn textbook, also known as the Volpe text, to cross-examine Dr. Troy without establishing its authority and reliability.
The defendants alleged the court allowed hearsay excerpts from the text as substantive evidence and permitted the Charltons to improperly push forth the argument that the delivering doctor exerted excessive force while pulling on the infant during delivery Plaintiff’sff’s theory was that there was a loud popping sound that reverberated throughout the delivery room which was a sign of this excessive fo ce. The argument was that popping was the tearing of spinal cord tissue due to the use of excessive force during childbirth.
So plaintiffs’ malpractice lawyer presented evidence from a neurology textbook that linked the popping sound to the tearing of spinal cord tissue caused by excessive traction during childbirth. That evidence was presented using the Volpe text to impeach Troy’s credibility. But no foundation was laid to establish it as a learned treatise. Experts can with statements contained in a text or publication deemed authoritative or reliable by them or other experts in the same field if they agree is it authoritative… but he had never heard of the Volpe text (I’m an obstetrician, sir, he demurred)… and Dr. Troy was not even testifying as an expert anyway.
Pennsylvania Appellate Court Holding
The trial court erred in allowing Dr. Troy to be cross-examined with the Volpe text without a proper foundation. Dr. Troy was not an expert witness and could only be cross-examined with a publication he agreed was authoritative or reliable. Even if he were an expert witness, a treatise could only be used to cross-examine with the attestation of that expert or another expert in the field. The use of the Volpe text as substantive evidence was also prohibited and highly prejudicial to the case. It suggested that Dr. Troy negligently employed too much traction and ruptured the dura, as evidenced by the sound, which was the crux of the entire case. The admission of this hearsay evidence tended to support Charltons’ theory of causation and was not legally supported by their expert testimony.
Plaintiffs’ argument that the doctor opened the door under Pennsylvania law to address the contents of the book failed. The doctor stated, “I have never read about any pop occurring with association with the delivery in the obstetrical literature.” However, the court ruled that this statement did not permit the use of the book’s discussion of a popping sound because the book was not obstetrical literature but neurological literature.
The defendants get a new trial. Reportedly, they made no settlement offer in this case. This is insane in a case that led to a $40 million verdict, regardless of what happened on appeal. This case should settle before another jury lays eyes on it.