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Asher v. OB-GYN Specialists, P.C.

Supreme Court of Iowa

May 9, 2014

ALAN ASHER and LARYSA ASHER, as Parents and Next Friends of ALEXANDRA ASHER, a minor, and ALAN ASHER and LARYSA ASHER, Individually, Appellees,
v.
OB-GYN SPECIALISTS, P.C., and ANTHONY A. ONUIGBO, M.D., Appellants

Page 493

Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge. Defendants in a medical negligence action appeal a jury verdict.

AFFIRMED.

David L. Baker, Cedar Rapids, and James A. Gerk and Christine L. Conover of Simmons Perrine Moyer Berman PLC, Cedar Rapids, for appellants.

Mark McCormick of Belin McCormick, P.C., Des Moines, and H. Daniel Holm Jr., Max E. Kirk, and Eashaan Vajpeyi of Ball, Kirk & Holm, P.C., Waterloo, for appellees.

APPEL, Justice. All justices concur except Mansfield and Zager, JJ., who take no part.

OPINION

Page 494

APPEL, Justice.

In this professional negligence action, we consider whether the district court committed reversible error by providing the jury with a causation instruction based upon the Restatement (Second) of Torts rather than an instruction based upon the Restatement (Third) of Torts, as adopted by this court in Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009). We also consider whether substantial evidence supported submission of two specifications of negligence to the jury, one based on a physician's use of a vacuum extractor during the delivery of a baby and another based on the physician's failure to keep adequate documentation of the labor and delivery process.

For the reasons expressed below, we conclude that although the district court should have submitted a causation instruction based upon the Restatement (Third) of Torts and Thompson, the error was harmless under the facts and circumstances of this case. We further conclude substantial evidence supported submission of the two challenged specifications of negligence to the jury.

I. Factual Background and Proceedings.

A. Overview of Proceedings.

Larysa Asher was admitted to Covenant Medical Center (Covenant) in Waterloo for the delivery of a baby. The physician providing delivery services at Covenant was Dr. Anthony A. Onuigbo. Unfortunately, the baby was born with a brachial plexus injury and broken clavicle. Asher and her husband filed an action individually and as parents and next friends of their minor child, asserting Onuigbo was negligent in connection with the delivery of the baby.[1]

Page 495

After substantial discovery and a two-week trial, the district court instructed the jury. Instruction No. 12 asserted Asher had to prove Onuigbo was negligent in at least one of the following ways:

A. In failing to document the progress of descent during the second stage of Larysa Asher's labor;
B. Using a [vacuum extractor] to assist in the delivery of [the baby];
C. In failing to perform a cesarean section on Larysa Asher for the purpose of delivering [the baby];
D. In failing to recognize and diagnose [the baby's] shoulder dystocia;
E. In failing to perform proper maneuvers to deliver [the baby] after she developed shoulder dystocia;
F. By applying excessive lateral and/or rotational traction to [the baby's] head in an effort to deliver her.

Instruction No. 12 further informed the jury it could award damages only if it found Onuigbo's negligence was a proximate cause of the damage. Onuigbo objected to the instruction, arguing Asher failed to present substantial evidence of a causal link between any failure to document and the alleged harm or the use of the vacuum extractor and the alleged harm.

The district court also instructed the parties on causation. Instruction No. 13 instructed the jury as follows:

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damages and when the damage would not have happened except for the conduct.
" Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.

Onuigbo objected to Instruction No. 13 on the ground that while it would have been proper in the past, Thompson substantially altered the law of causation and the instruction did not reflect the current state of the law.

The jury found in favor of Asher and awarded substantial damages. After the district court denied Onuigbo's posttrial motions, he appealed. On appeal, Onuigbo claims Instruction No. 13 inaccurately reflected the current state of the law in light of Thompson and, as a result, the judgment must be vacated and the case remanded for a new trial. Onuigbo also claims there was insufficient evidence to support a finding of negligence based upon the failure to document the progress of the fetus's descent through the birth canal during the second stage of labor or the use of the vacuum extractor to assist in the delivery. Onuigbo argues that ...


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