Roger HAUGHT and Delores Haught, individually and as next
friends for their minor daughter, Jamie Marie
Haught, Plaintiffs-Appellants Cross-Appellees,
v.
John MACELUCH, M.D., Defendant-Appellee Cross-Appellant,
and
William C. Martin, M.D., Defendant-Appellee.
No. 81-1103.
United States Court of Appeals,
Fifth Circuit.
July 26, 1982.
Street, Swift, Brockermeyer, Bell & Ward, Kae L. Brockermeyer, Simon, Peebles, Haskell, Gardner & Bеtty, Anne Gardner, Fort Worth, Tex., for plaintiffs-appellants cross-appellees.
Glasgow & Jones, Robert J. Glasgow, Stephenville, Tex., Paul J. Van Osselaer, Austin, Tex., for William C. Martin, M.D.
Cantey, Hanger, Gooch, Munn & Collins, Estil A. Vance, Jr., Sloan Blair, Richard L. Griffith, Fort Worth, Tex., for Maceluch.
Appeals from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, THORNBERRY and GARZA, Circuit Judges.
THORNBERRY, Circuit Judge:
In this medical malpractice suit, appellant Delores Haught claims that Dr. John J. Maceluch deviated from Texas' standards of sound medical practice in the delivery of her daughter, causing her daughter to suffer permanent brain injury. Appellant sued to recover damages for the impaired condition of her daughter, for medical expenses in connection with the child's birth and future care, for loss of the child's future earning capacity, and for appellant's own mental suffering over her daughter's impaired condition. The suit was filed under diversity jurisdiction in the Northern District of Texas, against Dr. Maceluch and Dr. William C. Martin, an alleged partner with Dr. Maceluch.
After a jury trial, the district court entered judgment of $1,160,000.00 for the child's medical expenses and $175,000.00 for her lost future earnings; the court deleted a jury award of $118,000.00 for appellant's mental suffering over her daughter's impaired condition. The court also refused recovery against Dr. Martin, although the jury had found him to be a partner by estoppel. Appellant now appeals the district court's deletion of her mental suffering damages and its refusal to hold Dr. Martin liable; Dr. Maceluch cross-appeals the jury verdict holding him liable for damages caused to the child by his alleged malpractice.
I. The Facts
The complicated facts of this tragedy began in Weatherford, Texas, when appellant was referred to Dr. Martin for an examination just prior to her marriage and again when she later became pregnant. Appellant visited Dr. Martin for two or three months during her pregnancy, until Dr. Martin referred her to Dr. Maceluch; thereafter, she visited each of them alternatively, once a month in the beginning of her pregnancy and weekly at the end.
On March 12, 1977, when the childbirth was eleven days overdue, Dr. Maceluch examined appellant, but sent her home after he found no dilation of the cervix. The next day, appellant went into labor: at 10:00 p. m. she began having рains about three or four minutes apart. Because Dr. Martin was out of the country, appellant called Dr. Maceluch, who told her to go to the Campbell Memorial Hospital in Weatherford. Appellant arrived at the hospital at 10:30 p. m., and hospital personnel immediately called Dr. Maceluch to report that her cervix was not dilated and that her contractions were four minutes apart and moderate. At this point, Dr. Maceluch felt no necessity to go to the hospital himself. Hospital personnel again called Dr. Maceluch at midnight to report that appellant's contractions were four to five minutes apart and irregular; Dr. Maceluch ordered the nurse to admit and prepare appellant, but he still decided not to go to the hospital.
At 3:00 a. m. appellant's amniotic membrane ruptured spontaneously. The hospital's night supervisor noted that the escaped fluid contained dark green meconium-that is, the matter excreted in the baby's first bowel movement. Meconium staining is a symptom of fetal distress, indicating a compromise or interruption of the bаby's oxygen supply.1 Therefore, the night supervisor called Dr. Maceluch again to report the meconium staining; Dr. Maceluch again chose not to go to the hospital.
One hour later-at 4:00 a. m.-Dr. Maceluch called the hospital and ordered the nurses to place an external fetal heart monitor on appellant's stomach in order to measure the baby's heart rate. He also ordered the administration of a minimum dosage of Pitocin, a powerful drug used to stimulate a more regular labor contraction pattern; the Pitocin was supposed to induce labor, or to augment it, according to Dr. Maceluch. At 5:00 a. m. a nurse called Dr. Maceluch to report continued meconium staining and, in her reading of the external heart monitor, a loss of "beat to beat variability" in the relation of the fetal heartbeat to the appellant's contractions.2 Both of these are symptoms of fetal distress. Dr. Maceluch, however, did not consider them reliable, so he did not go to the hospital.
Dr. Maceluch finally arrived at the hospital at 7:00 a. m. He observed continued gross meconium staining, and because he felt some doubt about possible loss of beat to beat variability, he removed the external fetal heart monitor and placed a more accurate internal fetal heart monitor on the baby's head. He also ordered the Pitocin dosage to be doubled. After noting that appellant's cervix was still dilated only one centimeter and that the baby's head was not yet engaged in appellant's pelvis, Dr. Maceluch left appellant and proceeded to make his morning rounds to other patients. In his absence, at 8:30 a. m., the nurses again increased the Pitocin dosage.
At approximately 8:00 a. m. the nurses noted the first sure signs of fetal heart deceleration, although it is not clear that they informed Dr. Maceluch. At about the same time-beginning at 8:10 a. m. according to the hospital records-Dr. Maceluch started to perform an elective hysterectomy on another patient. In the middle of this operation, though, a nurse interrupted him to tell him of the changes in the fetal heart beat. At this point, Dr. Maceluch decided that he would have to perform a Caesarian section on appellant; he therefore ordered the nurse to stop administering Pitocin to appellant and to have her moved to an operating room. He then proceeded to finish the elective operation.
At 9:00 a. m. appellant's husband signed a permit allowing Dr. Maceluch to perform a Caesarian section on appellant. Appellant was moved into the operating room at 9:10 a. m. and placed under anaesthesia at 9:25 a. m. Dr. Maceluch, who had finished his other operation at 9:15, finally came to appellant's aid, beginning the Caesarian section at 9:26 a. m. and completing it with the delivery of Jamie Marie Haught two minutes later at 9:28 a. m.
Upon delivery, Dr. Maceluch noted that the umbilical cord was wrapped three or four times around the baby's neck; he also found gross meconium covering the baby's body and in the baby's throat. These conditions confirmed Dr. Maceluch's pre-operative diagnosis of fetal distress. A nurse immediately intubated the baby to draw the meconium from the throat. Although the baby then began to breath spontaneously and its color returned, it was not in good general condition: its breathing suffered some retractions, its physical functions were depressed, and it exhibited poor muscle tone. Because of these problems, the baby was transferred to Fort Worth Children's Hospital for further treatment.
A neonatologist at Fort Worth Children's Hospital diagnosed the baby as suffering from severe perinatal asphyxia-that is, a severe deprivation of oxygen before, during, or after birth-and from meconium aspiration syndrome-the distress caused by inhalation of meconium into the lungs. The baby also suffered seizures, indicating damage to the brain. And the baby's pH level was quite low, an acidotic condition often caused by oxygen deprivation. Even more tragically, within three months the baby's head had shrunk because of the atrophy of her brain. According to the neonatologist, the brain damage was permanent and would necessitate continuing institutionalization for the child. In short, Jamie Marie Haught was doomed to a life limited by extraordinarily severe handicaps.
II. Appellant's Mental Suffering
The most difficult issue that we must resolve in this case is whether appellant сan recover for the mental anguish she suffered because of the birth of her child in a defective condition, as distinguished from appellant's suffering caused by the labor and delivery. The district court posed this question to the jury as follows:
Question No. 9 : What sum of money, if any, if now, paid in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate plaintiff, Delores Haught, for such injury as she sustained, if any, from the birth of Jamie Marie Haught in the birth defective condition proximately caused by the negligence, if any, of defendant Maceluch?
The jury answered by awarding appellant $118,000.00 as compensation. The district court, however, deleted this award on the ground that Texas law would not permit such recovery by an "uninjured bystander." But because we think that the Texas Supreme Court would allow appellant to recover on the compelling facts of this case, we reverse the district court and reinstate the verdict of the jury.
A. The Texas Case Law
Of course, as a federal court exercising diversity jurisdiction, we are bound to follow the substantive law of Texas as declared by its Supreme Cоurt. See Erie Railroad Co. v. Tompkins,
Although the Texas Supreme Court has not yet rendered a decision that directly controls the "uninjured bystander" issue before us, it has decided cases relevant to the issue. In Hill v. Kimball,
The Texas Supreme Court again allowed recovery for the negligent infliction of emotional distress in Gulf, C. & S.F. Ry. v. Hayter,
The bystander problem finally received attention in the Texas Supreme Court decision of Kaufman v. Miller,
We recognize that this field of law is in a developing process, as is the field of psychiatry, and we would be reluctant to hold at this time that any one of the enumerated factors would of and by itself be sufficient to require a judgment denying liability. We are satisfied, however, that public policy is better served by denying liability when all are combined.
Id. at 171. The Texas Supreme Court therefore chose to deal with these claims on a case by case basis. Id.
Further guidance on the circumstances that would justify recovery for a bystander's emotional suffering has had to come from the Texas Courts of Civil Appeals. The most recent cases, decided after the landmark California case of Dillon v. Legg,
The most direct application occurred in Landreth v. Reed,
Similarly, in Bedgood v. Madalin,
Again, in Newman v. Minyard Food Stores, Inc.,
Finally, in two other cases, the Courts of Civil Appeals concurred in the application of general negligence principles to bystander recovery. In Covington v. Estate of Foster,
This reading of the Texas case law clearly reveals that Texas will follow the modern rule of measuring bystander recovery according to the general negligence principle of foreseeability. The relevant Texas Supreme Court decisions have opened the door for such recovery, and the Texas Courts of Civil Appeals have generously accepted the invitation. Under these circumstances, we cannot refuse either; we must judge appellant's recovery in this case under the modern rule.8 See Mott v. Mitsubishi International Corp.,
B. The Texas "Foreseeability" Test
While it is clear that Texas will allow bystander recovery to the extent that the bystander's injuries were foreseeable, it is less clear what the Texas courts mean when they use foreseeability as a test. We know only that the determination of foreseeability will depend on a number of factors and must be made on a case by case basis. See Kaufman v. Miller, supra,
According to the Landreth court, three factors constitute the primary test for determining foreseeability. The court stated these factors as follows:
(1) whether the plaintiff was located near the scene of the accident; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from a contemporaneous perception of the accident, as distinguished from learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related.
(1) Whether plaintiff was located near the scenе of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
C. Were Appellant's Injuries Foreseeable?
When we apply the appropriаte factors to determine the foreseeability of appellant's mental suffering in this case, we can come to no different conclusion than that drawn by the jury. All three of the factors of the modern rule counsel for a finding of foreseeability, precisely as the jury found. The district court therefore erred in deleting appellant's damages for mental suffering; rather, the award compensating appellant for the foreseeable consequences of Dr. Maceluch's negligent conduct should be allowed to stand.
Quite clearly, the facts of this case satisfy the first and the third factors of the modern rule. Not only was appellant located near the scene of the accident, she was in some sense the scene itself. Dr. Maceluch's negligent conduct was visited upon her and upon the child within her body; no closer proximity can be imagined. And the appellant and the victim were closely related-indeed, as a mother and child in childbirth their relationship was unitary.
The difficult question arises from the second factor. The district court found that appellant had not "contemporаneously perceived" the accident and therefore that the Texas courts would bar appellant's recovery as a matter of law. While this is a complex issue on the facts of this case, we must disagree with both parts of the district court's conclusion. Initially, we note that even in the absence of appellant's contemporaneous perception of the accident, the Texas courts would not necessarily bar appellant's cause of action. As the Texas Supreme Court stated in Kaufman v. Miller, "we would be reluctant to hold at this time that any one of the enumerated factors would of and by itself be sufficient to require a judgment denying liability."
Moreover, we think that the Texas courts would find appellant to have contemporaneously perceived the accident. The district court held otherwise becаuse it found that appellant "did not witness or even know of any injury to her daughter at the time of defendant's negligent act." But this finding misstates the inquiry. The correct question turns on whether the plaintiff had "an experiential perception of (the accident), as distinguished from a learning of it from others after its occurrence." Landreth v. Reed, supra,
Of course, in the typical "uninjured bystander" case, the plaintiff has in fact seen both defendant's negligent act and the injury that it causes to the third person; in these cases, the Texas courts have had little trouble concluding that the plaintiff contemporaneously perceived the accident. See Hill v. Kimball, supra,
Other "uninjured bystander" cases, though, do not present this simple eyewitness scenario; nevertheless, the Texas courts have been willing to find contemporaneous perception. In Bedgood v. Madalin, supra,
In Landreth v. Reed, supra,
Using these cases and their standards as guides, we think that we can cоnsider appellant here to have contemporaneously perceived the accident which befell her daughter. Appellant was certainly "brought so close to the reality of the accident as to render her experience an integral part of it." Indeed, this Court can imagine no more integral an experience than that of a mother giving birth to a child through a protracted and difficult labor and delivery. Appellant here was conscious during more than eleven hours of painful labor. She perceived that something was wrong, wrong enough to cause her to fear for her child's life. She was aware of Dr. Maceluch's negligent acts, particularly his absence in a near-emergency situation and his over-administration of a powerful drug which caused distress to herself and to her child. In short, appellant had an "experiential perception" of the accident. Cf. Krouse v. Graham,
Nor should the fact that appellant did not know the actual existence or extent of her child's injuries cause us to change this conclusion, lest we lose sight of the forest for the trees. Of course, the plaintiff's knowledge of the actual harm done to the third person will be a factor in favor of bystander recovery. But the ultimate test of recovery is the foreseeability of the plaintiff's emotional distress, which does not necessarily depend upon a single fact such as the plaintiff's contemporaneous perception of the injuries. Indeed, even in the typical "uninjured bystander" case the plaintiff often will not know the existence or extent of the victim's injuries. The mother who sees her child struck unconscious by a car does not know to any degree of medical certainty whether her child is actually injured; she knows only that an accident has befallen her child. Similarly here, appellant's disturbing experience informed her that some misfortune was happening to her child, causing her to fear for the child's life. Her distress, in other words, "resulted from a direct emotional impact upon (her) from a contemporaneous perception of the accident, as distinguished from learning of the accident from others after its occurrence." Landreth v. Reed, supra,
III. Dr. Maceluch's Liability
We also agree with the jury that Dr. Maceluch should be held liable for all of the damages actually suffered by appellant and her child.11 Dr. Maceluch contends that the district court erred by not granting his motions for directed verdict and judgment n.o.v. based on the insufficiency of the evidence to establish the applicable standard of medical care, as well as by not granting his motions for judgment n.o.v. and new trial based on the insufficiency of the evidence to prove that his acts proximately caused any of the injuries. But, as we will show below, neither of these contentions has merit.
A. Standard of Medical Care
Before reaching the substance of Dr. Maceluch's argument, we note that the scope of our review of the district court's disposition of Dr. Maceluch's motions is limited. We will "consider all of the evidence, drawing all reasonable inferences most favorable to the party opposing the motion. We then must grant a motion for directed verdict or judgment n.o.v. only if the facts and inferences favor the movant so overwhelmingly that reasonable persons could not arrive at a contrary verdict." Schwartz v. Sears, Roebuck & Co.,
The substance of Dr. Maceluch's claim depends upon the Texas rule regarding the standard of medical care against which Dr. Maсeluch's conduct should be judged. The Texas rule reads as follows: "The burden of proof is on the patient-plaintiff to establish that the physician-defendant has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances." Hood v. Phillips,
As Dr. Maceluch correctly observes, appellant's chief expert witness on medical standards-Dr. John Ray Baugh-did not specifically refer in his testimony to the standards applicable in March 1978, when appellant's tragic childbirth occurred. Indeed, Dr. Baugh often referred to "universal" standards of medical care. But contrary to Dr. Maceluch's assertion, this was sufficient to establish the applicable standard, in light of the circumstances of Dr. Baugh's testimony and of the other facts of this case. It is clear thаt Dr. Baugh knew the standard in effect for obstetricians in March 1978, since he had practiced obstetrics in Euless, Texas for thirteen years prior to the trial. He had visited the hospital in Weatherford approximately four months before the trial, and he testified that the facilities there were similar to those where he practiced in Euless and that they served a similar community. In fact, he noted that the fetal monitor used in Weatherford was the same apparatus used by him in Euless since 1964. He also testified that the "universal" standards which he used in formulating his opinions regarding Dr. Maceluch's level of medical care were simply "certain minimum safe and accepted standards of care," applicable "whether you are practicing obstetrics in a community of 10,000 or a community of 100,000." In short, Dr. Baugh testified that he had practiced obstetrics in a community and a hospital similar to Weatherford and its hospital in March 1978, and that the same standards of medical care applied to both places and indeed to all places. He thus showed his familiarity with the standard applicable in Weatherford in March 1978 and, we think, placed that standard before the jury. Of course, his testimony could have been more specific; nevertheless, our commonsense reading of the testimony convinces us that it showed Dr. Maceluch to have "undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances." Hood v. Phillips, supra,
In addition, we think that evidence independent of Dr. Baugh's testimony was sufficient to establish the appropriate standards of medical care. Dr. Maceluch himself testified about the medical standard in March 1978 regarding the timing for performing a Caesarian section:
Q. Now, the standard of care, Doctor, for obstetricians back in March of 1978, in Weatherford, Parker County, Texas, was to do a C-section if those two factors (loss of beat to beat variability and meconium staining) were present?
A. That was true.
Q. If you had known that these two factors were present, meconium staining and loss of beat to beat variability, if you had known they were present before 8:30, you would have done a C-section befоre then?
A. Yes.
Dr. Maceluch thus established the proper standard from his own testimony, allowing the jury to find that he breached the standard by failing to recognize the two crucial factors early enough. Cf. Williams v. Bennett,
B. Proximate Cause
Even if, as we find, the jury considered evidence of the appropriate medical standard and properly found it to have been breached, we cannot hold Dr. Maceluch liable unless his breach proximately caused the injuries to appellant and her child. Dr. Maceluch argues that the evidence presented at trial was insufficient to prove proximate cause and that the district court therefore should have granted his motions for judgment n.o.v. or for new trial.
Once again, we note that the scope of our review of the district court's denial of these motions is limited. As to the motion for judgment n.o.v., we will "consider all of the evidence, drawing all reasonable inferences most favorable to the party opposing the motion. We then must grant a motion for ... judgment n.o.v. only if the facts and inferences favor the movant so overwhelmingly that reasonable persons could not arrive at a contrary verdict." Schwartz v. Sears, Roebuck & Co., supra,
The evidence adduced at trial, viewed in a light most favorable to appellant, persuasively demonstrates that Dr. Maceluch's negligent conduct proximately caused the injuries to appellant and her child. Appellant's expert witnesses testified directly to that effect at trial. Two of these witnesses-Dr. Baugh and Dr. Heinz Eichenwald-specifically testified that during the childbirth appellant's child was undergoing current fetal distress, which Dr. Maceluch could have prevented by performing the Caesarian section earlier and could have lessened by not administering the Pitocin. Dr. Maceluch's expert witnesses testified otherwise, attacking the assumptions underlying the opinions of appellant's experts, but the jury chose not to believe them.14 And after reviewing both sides of the testimony, we cannot say that the testimony of Dr. Maceluch's witnesses was overwhelming; reasonable persons could easily reach a verdict contrary to theirs. Nor can we say that the district court abused its discretion in denying a new trial. This was simply a case of conflicting expert testimony, in which "(i)t was the jury's province to weigh all of the evidence and to decide what credence should be given to the whole or to any part of the testimony of each witness." Lockley v. Page,
IV. Partnership by Estoppel
Finally, we must address appellant's claim against Dr. William C. Martin as a partner with Dr. Maceluch. Although the jury found that no legal partnership existed between Dr. Martin and Dr. Maceluch, they did find that a partnership existed by estoppel, as follows:
QUESTION NO. 13:
A. Do you find by a preponderance of the evidence that defendant Martin represented to Delores Haught, orally, in writing, or in any other manner, that defendant Maceluch was his partner?
ANSWER: Yes.
B. Do you find from a preponderance of the evidence that Delores Haught detrimentally relied on such representation of partnership, if any, by defendant Martin.
ANSWER: Yes.
The district court, which had carried Dr. Martin's objection to these questions, then sustained the objection for lack of pleadings to support the issue of partnership by estoppel. The court also refused to allow appellant to amend her pleadings under Rule 15 to include an allegation of partnership by estoppel.
Appellant naturally challenges the district court's refusal of leave to amend. Of course, we can overturn that refusal only if the district court abused its discretion. Addington v. Farmer's Elevator Mut. Ins. Co.,
Rule 15(b) mandates that "(w)hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment...." Thus, if appellant's issue of partnership by estoppel was tried by express or implied consent, the district court should have considered it raised by the pleadings and should have allowed amendment upon appellant's request. The question is whether the issue of partnership by estoppel was so tried. It is obvious that the parties did not expressly consent to try this issue. They did, however, impliedly consent to do so: appellant introduced evidence relating to the issue of partnership by estoppel as part of her case-without any objection from Dr. Maceluch or Dr. Martin-and at the close of her case she announced that she was including the issue as part of her legal theory. See Wallin v. Fuller,
As a general rule, we can find implied consent when a party fails to object to evidence relating to issues that are beyond the pleadings. See 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 1493 at 462-65. This finding, though, depends on the circumstances of each case, and in this case, Dr. Martin urges that two factors should be considered especially important. First, he argues that the evidence relating to the theory of partnership by estoppel was also relevant to the legal partnership theory; thus, the evidence did not alert him to the introduction of a new theory outside of the pleadings. It is true that "the introduction of evidence relevant to an issue already in the case may not be used to show consent to trial of a new issue absent a clear indication that the party who introduced the evidence was attempting to raise a new issue." International Harvester Credit Corp. v. East Coast Truck,
Q. When Dr. Martin told you that he brought in a partner did you rely on the representation, that he had brought in a partner?
A. Yes, I did. I trusted him.
Since reliance is an element only of partnership by estoppel and not of legal partnership, this evidence alone should have been sufficient to notify Dr. Martin that appellant was pursuing a new issue. And even if it was not, appellant later gave Dr. Martin a "clear indication" that she was using the theory of partnership by estoрpel. At the close of appellant's evidence, her counsel responded to Dr. Martin's motion for summary judgment by announcing the new theory:
(T)he fact that these parties (Dr. Martin and Dr. Maceluch), between themselves, did not actually intend to be partners does not, in this case, keep from establishing a partnership by estoppel. Specifically, Article 6131(b) (sic: Tex.Rev.Civ.Stat.Ann. art. 6132(b), § 16 (Vernon 1970)?) provides for liability of a partnership by estoppel when persons hold themselves out to the public as a partner and those acts are reasonably relied upon by the public. They are estopped from denying partnership. The cases held generally that partnership liability as to third persons is governed by the doctrine of estoppel and agency.
This unequivocally brought the new issue into the case with the awareness of all of the parties.
Dr. Martin then raises the second circumstance that he believes will prevent a finding of implied consent-namely, that the introduction of this new issue will prejudice him. See Wallin v. Fuller, supra,
Once the finding of trial by consent has been made, there remains no discretion to deny appellant's motion to amend. See C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 1493 at 469. In other words, the district court should have allowed the amendment as a mаtter of course. And even without the amendment, the issue of partnership by estoppel should be allowed to stand as the jury found it. Rule 15(b) specifically provides that issues tried by implied consent "shall be treated in all respects as if they had been raised in the pleadings," and further "that failure ... to amend does not affect the result of the trial of these issues." Because of this rule, we shall reinstate the finding of the jury that a partnership by estoppel existed between Dr. Martin and Dr. Maceluch as to appellant.
For all of the reasons discussed above, we AFFIRM IN PART AND REVERSE IN PART.
Notes
Meconium is the contents of the fetus accumulated during the fetus' gestation. It can be released as the fetus' first bowel movement when the oxygen supply to the fetus is compromised and, as a consequence, the fetus' sphincter muscles are relaxed. The meconium, which is sterile itself, is semi-solid and denser than the amniotic fluid into which it is excreted; over time, however, it gradually disperses and dissolves into the fluid. In addition, it gradually changes color, from its original green to brown or even yellow. Because of these changes, the consistency and сolor of the meconium can indicate the time of the episode of fetal distress
Beat to beat variability is a factor derived from the readings of the fetal monitor, which measures the fetus' heart rate and the mother's contractions over a period of time. The fetal monitor's measurements are displayed as a pair of continuous tracings on a strip chart, with the fetal heart rate drawn on top of the chart and the mother's contractions on the bottom. In a normal childbirth, the two "beat" measurements will vary-that is, the fetus' heart rate will be unaffected by the mother's contractions. If, however, the heart rate begins to fluctuate in direct correlation with the contractions, then fetal distress should be suspected. For example, the umbilical cord may be in such a position that the contractions compress it, causing an interruption of the fetus' oxygen supply and a corresponding alteration of the fetus' heart rate; the alteration of the heart rate would appear on the fetal monitor at a time corresponding to the contraction, thus indicating a loss of the normal beat to beat variability
The other limitation was based on the plaintiff's unusual susceptibility to mental injury-a factor not present in the case before us
In Dillon, the California Supreme Court rejected its prior "zone of danger" rule, which limited bystander recovery to those who witnessed negligent conduct while in a position to be harmed by that conduct. In applying general negligence principles, the Court found three factors to be relevant in allowing recovery: the bystander's physical proximity to the accident, the bystander's actual witnessing of the accident, and the relationship between the bystander and the victim. The Court stressed, however, that these factors were only guidelines, and that recovery would have to be determined on a case by case basis
On writ of error, the Texas Supreme Court reversed and remanded the father's claim on the ground that he had not properly pleaded the claim at trial. The Supreme Court "express(ed) no opinion as to the merits of this claim."
In its per curiam affirmance, the Texas Supreme Court "agree(d) with the judgment of the court of civil appeals that the trial court erred in granting summary judgment for Minyard. The question of mental anguish should be determined after a development of the fact."
In addition, however, the court in Dave Snelling Lincoln-Mercury applied the traditional "zone of danger" test and found its conditions met, thus deciding the case on alternative grounds
Two commentators share this view that Texas has adopted the modern rule. See Lantry, An Expanding Legal Duty: The Recovery of Damages for Mental Anguish By Those Observing Tortious Conduct, 19 Am.Bus.L.J. 214, 219 n.15 (1981); Comment, Negligent Infliction of Emotional Harm to Bystanders-Should Recovery Be Denied?, 7 St. Mary's L.J. 560, 571 (1975)
The Texas case law also imposes another element-separate from the requirement of foreseeability-that limits recovery for emotional distress to those instances in which the distress manifests itself through physical injury. See Harned v. E-Z Finance Cо.,
Moreover, we feel confident that appellant's injuries satisfy the purposes of the Texas physical injury requirement-namely, to prevent false claims and to limit claims to those involving serious emotional shock. This Court has no trouble in recognizing appellant's claim of emotional distress to be genuine and her emotional shock to be serious. To assert otherwise on the facts of this case would ignore the reality of the childbirth experience and of the relationship between mother and child.
This conclusion is buttressed even further, if somewhat more indirectly, by the reasoning of the California Supreme Court in Justus v. Atchison,
The Court's description of this second factor leaves the clear implication that recovery could be allowed for the wife, since she could contemporaneously perceive the childbirth. By its very nature, the event of childbirth is not hidden from the mother's perception; even though she could nоt see the injury, she could otherwise sense it, at least for purposes of showing her emotional distress to be foreseeable. To put it another way, not only has the wife been admitted to the theater, she is also in some sense the stage upon which the drama is played. Cf. Austin v. Regents of the University of California,
As noted above, the jury awarded appellant $118,000.00 for her mental suffering caused by her child's impaired condition. The jury also awarded appellant's child $1,160,000.00 for medical expenses and $175,000.00 for lost future earnings
Dr. Maceluch contends that the Physician's Desk Reference standard cannot apply in this case because it refers only to current fetal distress, not to incidents of past fetal distress, as he claims the evidence shows here. His contention, however, argues not against the applicable standard-which the Physician's Desk Reference adequately establishes-but rather against the interpretation of the evidence to find current fetal distress. And after reviewing that evidence-consisting chiefly of testimony regarding fresh meconium staining and early loss of beat to beat variability-we find that it reasonably allowed an interpretation of current fetal distress. The evidence thus established both the standard of care for the administration of Pitocin and a breach of the standard by Dr. Maceluch
Dr. Maceluch again contends that this standard cannot apply here because it refers only to labor induction, not to labor augmentation, which he claims his procedure to have been. But again his contention actually counters only the evidence showing a labor induction-or showing the applicability of the hospital rule to this situation regardless of how Dr. Maceluch labelled it. Our review of the evidence, though, convinces us that the jury could reasonably have found both the standard and its breach
As noted above, these evidentiary assumptions involved primarily the evidence of fresh meconium staining and of early loss of beat to beat variability. This evidence, as well as Dr. Maceluch's rebuttal to it, was placed before the jury, and we find that they could reasonably choose to believe it