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07/23/97 BOBBI JO WELSH v. DONALD W. BULGER

July 23, 1997

BOBBI JO WELSH, AS ADMINISTRATRIX OF THE ESTATE OF KYLE A. GAINES, DECEASED, AND BOBBI JO WELSH, IN HER OWN RIGHT, APPELLANTS
v.
DONALD W. BULGER, M.D., CLAYSBURG MEDICAL ASSOCIATES, INC. AND NASON HOSPITAL, APPELLEES



Appeal from the Memorandum and Order of the Superior Court entered on July 26, 1994 at No. 0089PGH94 affirming the Order of the Blair County Court of Common Pleas, Civil Division, entered on December 14, 1993 at 91 CP 2172. Composition OF The Court: Mr. Chief Justice John P. Flaherty, Zappala, Cappy, Castille, Nigro, Newman, JJ. Mr. Justice Castille files a Concurring and Dissenting opinion. Mr. Chief Justice Flaherty files a Dissenting opinion.

The opinion of the court was delivered by: Newman

OPINION OF THE COURT

MADAME JUSTICE NEWMAN

DECIDED: JULY 23, 1997

This appeal concerns claims for corporate negligence by Appellant, Bobbi Jo Welsh, against Appellee, Nason Hospital, which emanated from the delivery of her son, Kyle A. Gaines, now deceased. The Court of Common Pleas of Blair County (trial court) granted summary judgment in favor of Nason Hospital and dismissed the hospital. The Superior Court affirmed. We now reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In 1989, Welsh, then sixteen years of age, received prenatal care from Donald W. Bulger, M.D., and his practice at Claysburg Medical Associates, Inc. At that time, Dr. Bulger had obstetrical privileges at Nason Hospital but these privileges did not permit him to perform surgery at the hospital.

At approximately 4:00 a.m. on January 1, 1990, Welsh began experiencing contractions. She arrived at Nason Hospital at approximately noon and the nursing staff conducted an initial internal examination, which revealed that Welsh's cervix was dilated five centimeters and that her membranes were intact. Dr. Bulger first examined Welsh at 7:55 p.m. and performed an amniotomy, *fn1 which produced meconium stained fluid. *fn2 He also placed an internal monitoring device on the fetus to monitor the fetal heart rate.

Welsh's cervix became fully dilated at 8:15 p.m. and Dr. Bulger instructed her to begin pushing out the baby. By 9:13 p.m., the fetal monitoring device indicated that the fetal heart rate had experienced consecutive nonassuring variable deceleration patterns, suggesting possible interference of umbilical blood flow to the fetus. The fetal monitoring device continued to show nonassuring variable deceleration patterns until approximately 9:38 p.m., when monitoring was discontinued.

At approximately 9:50 p.m., Welsh was transferred to the delivery room. Dr. Bulger vaginally delivered the child with forceps at approximately 10:35 p.m. Following the delivery, the child was dusky in color, was lacking in muscle tone, was without spontaneous respiration, and had a low heart rate. The child had Apgar scores of four at one minute after delivery and six at five minutes after delivery. *fn3 At approximately 11:25 p.m., the child was transferred to Altoona Hospital for additional care. After the child was released from Altoona Hospital, he suffered numerous complications and required several hospitalizations. On November 27, 1990, the child died at the age of eleven months.

Welsh filed a complaint, individually and on behalf of the estate of her child, against Dr. Bulger, Claysburg Medical Associates, Inc., and Nason Hospital. *fn4 The claims against Nason Hospital are couched in negligence and are premised on separate theories of vicarious liability and direct liability. First, Welsh alleges that Nason Hospital is vicariously liable for the negligent acts of its staff in failing to monitor and to respond to an infant showing signs of fetal distress. Second, Welsh alleges that Nason Hospital is directly liable for its own negligence because it granted non-surgical obstetrical privileges to Dr. Bulger without requiring a qualified surgeon to be available in case surgery was necessary and because its staff failed to notify the hospital that Welsh's child needed a surgical delivery.

During discovery, Welsh produced the reports of three expert witnesses to support her claims against the defendants. The first expert, Dr. Warren E. Cohen, M.D., opined that Welsh's child suffered severe brain injuries at birth, which were more than likely caused by the combined effects of hypoxia, *fn5 ischemia, *fn6 acidosis, *fn7 and the resultant cerebral edema. *fn8 Dr. Cohen concluded that the child's death eleven months later was the result of the injuries sustained at birth.

The second expert, Dr. Marshall E. Klavan, M.D., also concluded that the child's injuries at birth resulted in the child's death. Dr. Klavan explained that the presence of nonassuring variable deceleration patterns on the fetal monitoring readout indicated that the umbilical cord had become compressed and the fetus was not receiving sufficient blood flow. He opined that such a readout dictated that monitoring should not have been discontinued at 9:38 p.m. and that a surgical delivery, either vaginally or abdominally, should have been performed. Dr. Klavan concluded that "this infant's permanent injuries relate to intrapartum asphyxia which would have been avoided had Dr. Bulger adhered to the accepted standards of obstetrical practice."

The final expert, Stanley M. Warner, M.D., agreed that the fetal monitoring readout evidenced a need for a surgical delivery. His report, which is addressed ...


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