Dawn Lawrey, Mother and Next Friend of Aubree Lawrey, a Minor, Plaintiff - Appellant
Good Samaritan Hospital, Defendant, Kearney Clinic, P.C.; Dawn M. Murray, M.D., Defendants - Appellees
Submitted December 18, 2013.
Appeal from United States District Court for the District of Nebraska - Omaha.
For Dawn Lawrey, Mother and Next Friend of Aubree Lawrey, a Minor, Plaintiff - Appellant: Kenneth M. Levine, KENNETH LEVINE & ASSOCIATES, Brookline, MA; Sheila E. Mone, LEVINE & ASSOCIATES, Brookline, MA; Christopher Paul Welsh, James Robert Welsh, WELSH & WELSH, Omaha, NE.
For Kearney Clinic, P.C., Dawn M. Murray, M.D., Defendants - Appellees: Joseph M. Aldridge, Nathan Derek Anderson, James A. Snowden, WOLFE & SNOWDEN, Lincoln, NE.
Before BYE, BRIGHT, and SMITH, Circuit Judges. BRIGHT, Circuit Judge, concurring.
BYE, Circuit Judge.
After Dawn Lawrey's daughter was born with permanent nerve damage in her right shoulder and arm, Lawrey brought a medical malpractice action against Dr. Dawn Murray, the physician who performed the delivery. The case went to trial with a jury issuing a verdict in favor of Dr. Murray. Lawrey appeals claiming the district court abused its discretion by
excluding certain testimony from her experts prior to trial. Lawrey also argues she was entitled to judgment as a matter of law on the issue of informed consent; in the alternative Lawrey contends she should have been granted a new trial because of allegedly inflammatory and prejudicial statements Dr. Murray's counsel made in closing arguments. We affirm.
During a vaginal delivery, a newborn's shoulder can sometimes get stuck in the birth canal behind parts of the mother's anatomy. This condition is called shoulder dystocia. There are two places where a newborn's shoulder can get stuck. The first is behind the mother's sacral promontory, a part of the tailbone. When a newborn's shoulder gets stuck in this location, the condition is referred to as a posterior shoulder dystocia. A posterior shoulder dystocia occurs before the newborn's head has crowned.
The second place a newborn's shoulder can get stuck is behind the mother's pubic symphysis. The pubic symphysis is the fixed joint located at the front of the pelvic girdle, where the two pubic bones meet. It is not actually a bone, but is comprised of cartilage, so is similar to a bone in terms of its rigidity. This location is farther along the birth canal. When a newborn's shoulder gets stuck in this location, the condition is referred to as an anterior shoulder dystocia. An anterior shoulder dystocia occurs after the newborn's head has crowned. In fact, a newborn's head commonly retreats back into the birth canal after initially crowning if there is an anterior shoulder dystocia, a condition known as the turtle sign.
Shoulder dystocia can cause injury to the brachial plexus, the network of nerves running from the spinal cord to the shoulder and arm. These nerves can stretch or tear while the newborn's shoulder is becoming dislodged from behind the sacral promontory or the pubic symphysis. In those instances of shoulder dystocia when an injury does occur, the injury is usually temporary. In rare instances, the condition results in permanent injury.
Aubree Lawrey was born on March 1, 2008, with a permanent brachial plexus injury to her right shoulder and arm. The injury resulted from a posterior shoulder dystocia, meaning Aubree's shoulder got stuck behind her mother's tailbone, before her head had crowned. During prenatal visits with Dawn Lawrey, Dr. Murray had discussed the possibility of the baby getting stuck during the delivery. Dr. Murray had these discussions because of the problems Lawrey had during her first childbirth, and the anticipated size of the second baby. Although Dr. Murray discussed the possibility of the baby getting stuck during delivery, she did not mention the possibility of a permanent injury. Lawrey opted to have a vaginal delivery rather than a cesarean section.
After Lawrey realized her daughter's injury was permanent, she brought a medical malpractice action against Dr. Murray claiming the injury was caused by negligent treatment. She also claimed a lack of informed consent, alleging Dr. Murray was obligated to warn her of the possibility that a vaginal delivery could result in a permanent nerve injury, and if she had been informed of the possibility of permanent injury, she would have chosen to have a cesarean section.
As the suit progressed, Lawrey disclosed the reports of two expert physicians. Both physicians opined the injury resulted from Dr. Murray applying excessive lateral traction to Aubree's head during delivery, notwithstanding the fact that Aubree's shoulder had been stuck behind her ...