Medical Expert Witness Wrongly Excluded, Ore. Court Says

Via Law360; By Y. Peter Kang

Law360, Los Angeles (February 1, 2017, 10:13 PM EST) — An Oregon appellate court on Wednesday revived a suit accusing a women’s health clinic doctor of causing a baby’s shoulder injury by ordering a vaginal birth, saying the trial judge erred by excluding the testimony of one of the plaintiff’s expert witnesses.
A three-judge Court of Appeals panel said the trial court was wrong to exclude as irrelevant the testimony of Lydia Patricia Bergstrom’s expert witness, referred to in court papers as Dr. Rice. The panel ruled that the doctor’s proposed testimony as to whether Dr. Miguel Carbonell of Associates for Women’s Health of Southern Oregon LLC failed to obtain proper ultrasound images to accurately measure Bergstrom’s macrosomic, or oversized, fetus was a key factor in the case.

“Testimony regarding defendant’s failure to obtain the correct ultrasound images … supports the proposition that defendant ‘should have known that [Bergstrom] was at significant risk of having a macrosomic baby,'” the court wrote in a nine-page opinion. “Rice’s testimony ‘had some likelihood of affecting the jury’s verdict,’ and, as a result, the trial court’s error in excluding the testimony ‘substantially affected’ plaintiff’s rights.”

The appellate panel also shot down the clinic’s assertion that there was no allegation made in Bergstrom’s complaint relating to improper ultrasound images.

“Plaintiff’s allegation of negligence … is sufficiently broad to make Rice’s testimony regarding the allegedly negligently performed and interpreted ultrasounds relevant,” it said.

An attorney for Bergstrom, Helen Tompkins of Tompkins Law Office LLC, told Law360 on Wednesday that they were satisfied with the result.

“It is the right result for the plaintiff,” she said. “The jury should have been allowed to hear all of the evidence.”

Representatives for the clinic did not immediately respond to requests for comment late Wednesday.

The suit accuses the obstetrics clinic of negligence for opting for a vaginal delivery when it should have known that Bergstrom’s large baby was at significant risk of shoulder dystocia — when a baby’s shoulder is obstructed by the mother’s pelvis.

She claims the shoulder dystocia caused her baby to suffer a brachial plexus injury and Erb’s Palsy in his right arm.

Bergstrom is represented by Helen C. Tompkins of Tompkins Law Office LLC and Keith Tichenor of Tichenor & Dziuba.

The clinic is represented by Michael T. Stone of Brisbee & Stockton LLC.

The case is Lydia Patricia Bergstrom v. Assoc. for Women’s Health of Southern Oregon LLC, case number A158700, in the Court of Appeals of the State of Oregon.