In the case of Hughes v. Wilkes-Barre Hospital Company, No. 16-CV-6463 (C.P. Lacka. Co. April 18, 2018 Nealon, J.), the court addressed plaintiff’s motion in limine, which sought to preclude the defendants from presenting a causation defense, or alternatively, an adverse inference instruction based upon the defendant physician’s failure to collect an umbilical cord blood gas sample at the time of the birth of the child, “WRH.”
WRH’s mother, who was at 37 weeks gestational age, was evaluated by her obstetrician on September 6, 2012, approximately 20 days prior to the estimated date of delivery. At that time, she complained of new onset headache, dizziness, back pain, and decreased fetal movement. Following several pressure readings that were above the mother’s prenatal baseline rate, the nurse contacted the on-call obstetrician, who instructed the mother to go home, take Tylenol, Bengay and to eat bland food for the rest of the day. (Plaintiff claimed that the obstetrician should have admitted to the hospital for a biophysical profile and close monitoring.) The next day, WRH’s mother returned to her OB-GYN practice at or around 8 a.m. and underwent a biophysical profile, which was markedly abnormal; however, she was not admitted to the adjacent labor and delivery unit until approximately 11:30 a.m. At that time, plaintiff’s claim that the fetal monitoring strips showed tachycardia, minimal to absent variability and episodes of variable deceleration. Notwithstanding the ominous findings, plaintiff’s claim that the defendants unreasonably delayed Cesarean section delivery until 12:55 p.m.
WRH’s Apgar score was 5 at 5 minutes, and notwithstanding this finding, the obstetrician failed to order an umbilical cord blood gas measurement. Moreover, the hospital had a policy in effect which arguably obligated the attending physician to “collect cord blood specimens” if there was “non-reassuring fetal surveillance” or the Apgar score at 5 minutes was less than 7. The obstetrician testified that she was not aware of the policy and did not have a standard practice for ordering cord blood gases.
WRH suffered a significant hypoxic ischemic brain injury, which the plaintiffs believed was due to delayed C-section. The defendants argued that WRH suffered an unexpected and unpredictable accident prior to September 6, 2012. Plaintiffs’ experts were highly critical of the defendant obstetrician’s failure to obtain a cord blood gas and opined that had they been secured they would have been unfavorable of the defendant doctor. Therefore, the plaintiffs’ sought an adverse inference jury instruction based upon the defendant obstetrician’s spoliation of evidence. The defendants argued that such an instruction was not appropriate because the defendant did not destroy or alter evidence.
The Court conducted medical-legal research and determined that an umbilical cord blood gas analysis is a critical piece of evidence in determining when intrauterine hypoxia occurs. “In other malpractice litigation, the results of umbilical cord blood gas testing have exculpated or implicated specific medical care as the cause of a newborn’s hypoxic-ischemic brain injury.” The Court also determined that “spoliation of evidence” is the non-preservation or significant alteration of evidence for pending future litigation. Pyeritz v. Com., 613 Pa. 80, 88, 32 A.3d 687, 692 (2001). The relevant factors to be considered by the court in determining an appropriate remedial sanction for the spoliation of evidence are: (1) the degree of fault of the party who altered or destroyed the evidence: (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. Schroeder v. Com., Dept. of Transportation, 551 Pa. 243, 250-51, 710 A.2d 23, 27 (1998).
After carefully comparing the facts to Pennsylvania law pertaining to sanctions for alleged spoliation of evidence, the court granted plaintiffs’ request for an adverse witness jury instruction but denied the plaintiff's request to preclude the defendants from presenting a causation defense.
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