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Miller v. Phillips (6/12/98), 959 P 2d 1247
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Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM JOSEPH MILLER and )
COLLEEN A. MILLER, for and on )
behalf of their minor child: )
Gage D. Miller, ) Supreme Court No. S-6930
)
Appellant, )
) Superior Court No.
v. ) 3AN-92-6190 CI
)
CATHERINE PHILLIPS, CNM, ) O P I N I O N
)
Appellee. ) [No. 4998 - June 12, 1998]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Dana Fabe, Judge.
Appearances: C. R. Kennelly, Stepovich,
Kennelly & Stepovich, P.C., Anchorage, for Appellants. Brewster H.
Jamieson and Michael B. King, Lane Powell Spears Lubersky,
Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton and
Bryner, Justices. [Eastaugh and Fabe, Justices, not
participating.]
BRYNER, Justice.
The parents of an injured newborn baby sued their
midwife, claiming that she panicked during the delivery and
negligently caused the injury. A jury found for the midwife. On
appeal, the parents claim that the midwife's supervising physician
should have been barred from testifying as an expert because he was
called only as a fact witness; that testimony concerning the
midwife's prior lack of panic should have been excluded as
inadmissible character evidence; and that the jury should have been
instructed to presume that the midwife's delivery-room notes were
correct and accurate. We hold that the physician was entitled to
express expert opinions formed as a supervisory participant; that
evidence of the midwife's lack of prior panic was admissible to
prove her ability to cope with panic situations; and that the jury
could properly decide for itself if the delivery-room notes were
complete and accurate.
I. FACTS AND PROCEEDINGS
Gage Miller was born to William and Colleen Miller on
December 12, 1991, at Alaska Regional Hospital [Fn. 1] (ARH) in
Anchorage. Catherine Phillips, a certified nurse midwife, was
responsible for Colleen Miller's prenatal care and performed Gage's
delivery.
ARH policy required each midwife to be assigned to a
"preceptor,"or supervising obstetrician/gynecologist. Dr. Burritt
Newton was Phillips's preceptor; in that capacity, he monitored
Colleen Miller's prenatal care records for potential problems with
the pregnancy, approved her for continuing midwife care by
Phillips, acted as Miller's formal admitting physician at the time
of childbirth, consulted with Phillips during the delivery, and
reviewed and signed off on Phillips's delivery-room notes and
Miller's medical chart. However, Dr. Newton was not present at the
time of birth and never personally met or treated Colleen Miller.
Most of Colleen Miller's labor and delivery progressed
normally. About thirteen minutes before birth, however, Gage
Miller's fetal heart rate slowed, a phenomenon called fetal
bradycardia. A minute or two before birth, one of Gage's shoulders
lodged against and became obstructed by his mother's pubic bone, a
complication known as shoulder dystocia. At birth, Gage was found
to have "Erb's palsy,"a permanent injury caused by damage to nerve
roots at the cervical spine; this injury will greatly limit Gage's
use of his right arm.
In July 1992 William and Colleen Miller filed suit on
behalf of Gage alleging that Phillips, Dr. Newton, and ARH were
negligent in their handling of Gage's delivery. An expert advisory
panel investigated the allegation and concluded that Gage's injury
probably resulted from birth trauma caused by traction on the fetal
head after Gage's shoulder became impacted. However, the panel
also found that the handling of Gage's birth was "appropriate,"
that his injury was not caused by "unskillful care,"and that
without intervention Gage's shoulder dystocia could have resulted
in neurological impairment or fetal death.
ARH moved for and was granted summary judgment. The
Millers eventually stipulated to Dr. Newton's dismissal. The case
proceeded to trial against Phillips. At trial, the Millers'
primary theory of negligence was that Phillips was under pressure
to act quickly because of Gage's bradycardia (his slowed heart
rate), that she panicked upon realizing that Gage's shoulder had
become lodged against his mother's pubic bone, and that, acting out
of panic, she pulled and twisted Gage's head in an effort to speed
his birth.
In support of this theory, William Miller -- Gage's
father -- and Kim McMichael -- a family friend who had accompanied
the Millers in the hospital delivery room -- both testified that
Phillips became panicky after the onset of Gage's bradycardia and
the discovery of his shoulder dystocia; they described her as
continuously and forcefully pulling, tugging, and rotating Gage's
head until his delivery ended. The Millers also relied on
Phillips's delivery-room notes, which contained only a brief
reference to dystocia, indicating that "mild shoulder dystocia"had
been relieved "by traction only." According to the Millers, this
note established that Phillips had dislodged Gage's shoulder by
pulling on his head. The Millers presented one expert witness, Dr.
James Lundquist, who testified that Phillips's use of traction on
Gage's head fell below the standard of care applied to nurse
midwives in that situation.
The Millers also called Phillips as a hostile witness.
They questioned her about her delivery-room notation that Gage's
shoulder dystocia had been relieved "by traction only." She
explained that "traction,"as used in her notes, was a form of
medical jargon indicating a directional guiding, as opposed to a
pulling force. According to Phillips, her notation that dystocia
was relieved by traction merely indicated the use of certain
techniques "implicit in the management of shoulder dystocia."
Phillips described how these techniques were actually used in
Gage's case. When asked if Gage's delivery had been "a panic
situation,"Phillips adamantly denied having panicked.
Expert witnesses later presented by Phillips testified
that her actions in relieving Gage's shoulder dystocia fell within
the standard of reasonable care required of a certified nurse
midwife. The jury returned a verdict in favor of Phillips, finding
that her handling of the delivery was not negligent.
The Millers appeal on behalf of Gage, alleging that the
trial court committed reversible error by admitting objectionable
testimony and by improperly instructing the jury.
II. DISCUSSION
A. Dr. Newton's Expert Testimony
Although Phillips included her preceptor, Dr. Burritt
Newton, on her general witness list for trial, she did not name him
as a potential expert witness. At trial, the Millers objected to
any expert testimony by Dr. Newton. In response to this objection,
the trial court ruled that Newton, as Phillips's preceptor, had in
effect been Colleen Miller's "treating doctor." For this reason,
the court deemed Dr. Newton to be a "hybrid"witness, ruling that,
while he would be forbidden from testifying in general terms about
the appropriate standard of care, he would be allowed to testify as
to "his expert observations"and "his own opinion as to what he
observed."
The trial court later broadened the scope of its ruling,
permitting Dr. Newton to state expert opinions based on his review
of hospital records. Several months before trial, while still a
defendant in the case, Dr. Newton had filed an affidavit in support
of ARH's motion for summary judgment. In this affidavit, Dr.
Newton indicated that he had "reviewed the history of this labor
and delivery and all pertinent medical records, and based upon
[his] knowledge and experience with respect to the matters at
issue, [he could] find no fault or shortcoming of any nature with
the care, facilities, staffing, or other involvement by the
Hospital in relation to the labor and delivery in this matter."
The trial court allowed Dr. Newton to testify about these issues,
but limited him to the "four corners of [his] affidavit."
The Millers contend that the trial court erred in
allowing Dr. Newton to testify as an expert. [Fn. 2] They point to
numerous items of expert testimony that, in their view, should have
been excluded. We do not find this argument persuasive. When
physicians are called to testify about matters pertaining to the
treatment of their patients, the distinction between an expert
witness and a fact witness inevitably becomes blurred. Courts in
other jurisdictions have often recognized that treating physicians
need not be listed as expert witnesses on pretrial disclosure
lists, even when their proposed testimony involves opinions
regarding their patients' injuries, treatment, and prognoses. [Fn.
3]
The Millers nevertheless contend that Dr. Newton was not
Colleen Miller's treating physician because he had no personal
contact with her prior to or during her son's delivery. This
argument lacks merit. While Dr. Newton did not provide prenatal
care for Colleen Miller or perform Gage's delivery, he acted as
Phillips's supervising physician. In that capacity, he reviewed
Colleen Miller's medical chart with Phillips when Miller was
approximately eight months pregnant, in order to determine if it
would be appropriate to continue midwife care or if Miller needed
an obstetrician's care. Pursuant to ARH policy, Dr. Newton was
responsible for Colleen Miller's admission to the hospital at the
time of Gage's birth and was listed as her admitting physician. As
Colleen Miller's admitting physician, Dr. Newton was "automatically
the one responsible for seeing that the medical record [was]
complete." He was available for consultation with Phillips -- and
actually did consult with her -- during Colleen's labor and Gage's
birth. He was also expected to perform the delivery itself if
Phillips encountered difficulties requiring a physician's
intervention. Dr. Newton co-signed all of Phillips's notes in the
record and reviewed her medical chart approximately a month after
Gage's delivery.
Thus, Dr. Newton was involved intimately in the events
surrounding Gage's birth. The nature of his involvement required
him to bring his medical expertise to bear on the facts within his
knowledge. Furthermore, both in his supervisory capacity over
Phillips and in his own capacity as a defendant in the Millers'
lawsuit, Dr. Newton remained engaged in the post-birth process of
evaluating the medical treatment received by Colleen and Gage.
Given these circumstances, it makes little difference whether Dr.
Newton functioned as a "treating physician"or a "preceptor."
The Millers complain that Phillips's failure to list Dr.
Newton as an expert caused them unfair surprise. Although we
recognize that pretrial disclosure of expert witnesses can serve
the purpose of eliminating surprise, [Fn. 4] the record in the
present case does not support the Millers' claim. The Millers knew
that Dr. Newton would testify at trial, and they had ample advance
notice of the substance of his opinions. Well before trial, they
had received a copy of his affidavit. After receiving the
affidavit, the Millers conducted a deposition of Dr. Newton but
elected not to question him about his assessment of Phillips's
performance. At trial, after the court ruled that Dr. Newton could
state his opinion, the court offered the Millers a forty-five
minute recess to interview the doctor before he testified. They
declined. Dr. Newton's testimony itself was hardly surprising: it
conformed to the opinions stated in his pretrial affidavit and was
largely cumulative of testimony offered by Phillips's other expert
witnesses. [Fn. 5]
The Millers' claim of surprise is thus unconvincing. We
conclude that the trial court did not abuse its discretion in
allowing Dr. Newton to express his opinions. [Fn. 6]
B. Evidence of Phillips's Lack of Prior Panic
An integral part of the Millers' theory at trial was that
Phillips panicked during Gage's delivery and mishandled the baby.
The Millers called Phillips as a hostile witness and questioned her
on the topic. Phillips denied having panicked. The Millers
countered this testimony with testimony from several witnesses who
claimed that Phillips had become excited and upset and had started
yelling when the shoulder dystocia occurred.
As part of her response to the Millers' evidence,
Phillips asked to present evidence that she had not panicked during
other deliveries. The trial court granted the request, ruling that
the Millers had opened the door to inquiry on this issue. [Fn. 7]
Several of Phillips's witnesses, including Dr. Newton and delivery
room nurses Lynette Lupes-Warnock and Barbara Leng, thereafter
testified about Phillips's handling of other deliveries; all
testified that they had never seen Phillips panick or handle babies
inappropriately.
The Millers contend that the trial court erred in
admitting evidence of Phillips's demeanor during other deliveries.
They claim that evidence of Phillips's lack of prior panic was
character evidence and, as such, was inadmissible under Evidence
Rule 404(a). [Fn. 8]
We review a trial court's decision on the admissibility
of evidence under the abuse of discretion standard. See In re
D.J.A., 793 P.2d 1033, 1035-36 n.2 (Alaska 1990). In the present
case, the trial court's exercise of its discretion to admit the
disputed evidence cannot be evaluated without considering the
specific evidentiary context in which it occurred.
As already mentioned, the contention that Phillips had
panicked was an integral part of the Millers' case. In calling
Phillips as their own witness and questioning her about the
circumstances surrounding Gage's delivery, the Millers sought to
show that, upon discovering Gage's shoulder dystocia, Phillips,
already harried because of Gage's slowing heart rate, simply over-
reacted. At one point, the Millers asked Phillips: "As a matter of
fact, weren't you in a panic about saving this child from dying and
. . . in a hurry to get [the child] out, and you just got it out as
fast as you could, pulling on it?" At various other points, the
Millers questioned Phillips's experience in managing shoulder
dystocia and her knowledge of the proper techniques for resolving
the condition. The Millers asked Phillips to acknowledge that,
since Gage's birth, she had "discussed this [case] with your
experts on how it's supposed to be done"and had read various books
and articles discussing the proper management of shoulder dystocia.
They pressed her to concede that her version of events at trial was
inconsistent with the one she had given in her delivery-room notes,
where she wrote that she had resolved Gage's dystocia "with
traction only."
Throughout this line of questioning, the Millers
suggested that Phillips did not know the proper treatment for
resolving shoulder dystocia when Gage was born, that she had
reviewed the techniques after Gage's delivery, and that she had
applied her newfound knowledge to concoct the self-serving,
exculpatory version of events she presented at trial. In short,
the clear implication of the Millers' questioning was that
Phillips's trial testimony was a recent fabrication.
Considering this theory of negligence, the trial court
did not err in concluding that the Millers had called into question
Phillips's knowledge, experience, and ability to deal with births
involving shoulder dystocia; nor did the court abuse its discretion
in allowing Phillips to respond by presenting testimony of medical
professionals who knew Phillips to have been capable of competently
managing such deliveries.
Most of the evidence that the Millers now claim was
barred under Evidence Rule 404(a) consisted of testimony directly
describing Phillips's experience, knowledge, and competency in
dealing with dystocia. [Fn. 9] This was not character evidence.
Both Dr. Newton and Nurse Leng were also briefly
questioned about Phillips's demeanor on past occasions and did
state that they had never seen her panic. This testimony dealt
with Phillips's emotional response and therefore may be viewed more
readily as character evidence. It is much like evidence of prior
non-negligent behavior that generally is barred when offered to
prove that the actor was not negligent on a particular occasion.
See, e.g., McCormick, Evidence sec.sec. 188-89 (2d ed. 1972).
Nonetheless, it was closely tied to testimony describing Phillips's
experience, knowledge, and actual performance. The context in
which this evidence was presented created little likelihood that
the jury would respond to it as character evidence -- that is, as
proof that Phillips was a person of generally calm disposition and
therefore that she did not panic during Gage's birth.
Furthermore, insofar as the lack-of-panic testimony was
character evidence, there was justification for its admission as
such. The Millers all but invited this testimony when, while
questioning Phillips about panic, they asked, "Do you panic on all
deliveries?" Moreover, by suggesting that Phillips had panicked
during Gage's birth due to her inexperience in managing shoulder
dystocia, the Millers necessarily implied that Phillips's inexper-
ience predisposed her to panic in "a panic situation." In essence,
the Millers' position was that Phillips's lack of knowledge and
experience rendered her incapable of coping with Gage's case and
caused her to panic. The evidence concerning lack of prior panic
was a fair response to this tacit but unmistakable suggestion that
Phillips lacked capacity to cope with "a panic situation."
Finally, to the extent that Dr. Newton's and Nurse Leng's
testimony about Phillips's lack of prior panic was inadmissible
character evidence, its admission plainly was harmless. The
testimony concerning Phillips's demeanor on prior occasions was
brief and minimally prejudicial. Virtually identical testimony
concerning Phillips's lack of prior panic was given by Nurse Lupes-
Warnock; although the Millers objected to Lupes-Warnock's testimony
below, on appeal they have not challenged its admission. We find
no reasonable likelihood that the admission of Dr. Newton's and
Nurse Leng's lack-of-panic testimony had an appreciable effect on
the jury's verdict. See In re D.J.A., 793 P.2d 1033, 1035-36 n.2
(Alaska 1990) (error is harmless if it would have had no probable
effect on a reasonable jury's verdict).
C. Presumption of Completeness and Accuracy
During Gage's delivery, both Phillips and delivery-room
nurse Barbara Leng kept notes in Colleen Miller's medical chart.
At trial, the Millers contended that Phillips's and Leng's
testimony did not conform to their notes; they proposed an
instruction that presumed the notes to be accurate and shifted to
Phillips the burden of proof as to any facts reflected in the trial
testimony that varied from the notes:
It is the duty of Health Care providers
such as Cate Phillips and Nurses working under her to describe
accurately and fully in their medical records kept in the course of
treatment everything of consequence that was done or observed
during the course of treatment.
The medical records kept during the
course of the delivery of the child, Gage Miller, in this case are
therefore to be accepted by you as accurate and complete. To the
extent that you are asked to interpret the records differently from
the manner and the way [they are written] the burden of proof lies
with the party asking you to do so as the law presumes the records
to be accurate and complete as stated above.
The trial court declined to give the Millers' proposed instruction,
stating, "I don't see this as a legal issue at all. I think it's
a factual issue that you can argue."
On appeal, the Millers complain that the medical records
were incomplete because they did not contain a "description of the
procedures that [Phillips] testified she used in relieving the
shoulder dystocia." Citing Patrick v. Sedwick, 391 P.2d 453
(Alaska 1964), and Sweet v. Sisters of Providence in Washington,
895 P.2d 484 (Alaska 1995), they renew their claim of entitlement
to an instruction on Phillips's duty to maintain accurate and
complete medical records, and they argue that the trial court erred
in rejecting their proposed instruction.
We find this argument unpersuasive. Although the first
paragraph of the Millers' proposed instruction accurately described
Phillips's duty to keep full and accurate notes, see Patrick, 391
P.2d at 457, the second paragraph's legal presumption of accuracy,
with its burden-shifting provision, finds no precedent in our case
law.
The authorities cited by the Millers do not support their
requested presumption. In Patrick, the plaintiff, Patrick, awoke
from thyroid surgery to find that her voice box had been
permanently injured. See id. at 454. At trial, her surgeon had no
recollection of the operation. See id. at 455. His surgery notes,
which were made the day after the operation and were incomplete,
did not refresh his recollection. See id. Because no other
witnesses were capable of describing the operation, Patrick was
unable to present affirmative evidence establishing her surgeon's
negligence. See id. at 456. On these facts, Patrick held that the
incomplete surgery notes could not be relied on to establish an
absence of negligence. See id. at 457-58. The court concluded
that proof of the unexplained injury constituted prima facie
evidence of malpractice. See id. at 456.
Patrick's core holding that the surgeon's incomplete
notes could not be deemed accurate is entirely at odds with the
Millers' proposed instruction, which required the jury to accept
Phillips's allegedly incomplete notes as presumptively complete and
accurate. In stark contrast to the situation in Patrick, the
Millers' proposed instruction would have barred Phillips from
relying fully on her actual recollections.
Sweet is equally inapposite. There we found that a
hospital's negligent loss of surgical records justified a burden-
shifting spoliation instruction as to causation. See Sweet, 895
P.2d at 491. However, we expressly based this conclusion on two
uncontroverted factors: the hospital's negligence in losing the
records and the plaintiffs' inability to establish a convincing
prima facie case of causation without them. See id.
Here, in contrast to Sweet, there was no uncontroverted
proof of lost or inadequate records. To the contrary, the adequacy
and completeness of the medical records was a hotly disputed
factual issue. [Fn. 10] Nor did any alleged deficiencies in the
delivery-room records hinder the Millers in presenting a prima
facie case of malpractice. To the contrary, the purported
deficiencies facilitated proof of the Millers' prima facie case by
enabling them to attack Phillips's trial testimony as inconsistent
with her notes and therefore incredible.
The instructions as a whole adequately informed the jury
as to relevant law. See Kavorkian v. Tommy's Elbow Room, Inc., 694
P.2d 160, 166 (Alaska 1985) (when reviewing a trial court's denial
of a particular jury instruction, we consider whether the instruc-
tions as a whole adequately informed the jury of the relevant law).
Given the disputed evidence concerning the completeness and
accuracy of Phillips's delivery-room notes, we find no justifi-
cation for a presumption reflecting the Millers' theory of their
case. See Clary v. Fifth Ave. Chrysler Ctr., Inc., 454 P.2d 244,
251 (Alaska 1969) (affirming trial court's rejection of proposed
jury instruction that defined duty only as it related to
plaintiff's benefit). The trial court properly left the issues of
completeness and accuracy to the jury. The trial court's decision
rejecting the proposed jury instruction did not amount to error.
III. CONCLUSION
The trial court did not err in allowing Dr. Newton to
testify as an expert witness and in rejecting the Millers' proposed
instruction presuming Phillips's notes to be complete and accurate.
Furthermore, the court did not err, or it committed harmless error,
in admitting evidence of Phillips's knowledge and experience and
lack of prior panic. We AFFIRM.
FOOTNOTES
Footnote 1:
1 Alaska Regional Hospital was known as Humana Hospital at
the time.
Footnote 2:
Decisions involving the admissibility of expert testimony are
committed to the sound discretion of the trial court and are
reviewed only for abuse of discretion. See Sweet v. Sisters of
Providence in Washington, 895 P.2d 484, 494 n.10 (Alaska 1995).
Footnote 3:
3 See, e.g., Stigliano v. Connaught Lab., Inc., 658 A.2d
715, 719 (N.J. 1995) (holding that as fact witnesses, treating
doctors in medical malpractice cases may testify in opinion form
about their diagnoses and treatment of patients' disorders,
including their determinations of disorders' causes); Thompson v.
KFB Ins. Co., 850 P.2d 773, 784-85 (Kan. 1993) ("A 'person expected
to be called as an expert witness' typically would be a consultant
whose connection with the case began during trial preparation
rather than with the events upon which plaintiff's claim is based
. . . . A treating doctor, while certainly possessing special
knowledge, skill, experience, and training required of a witness
testifying as an expert, typically would be called principally to
recount plaintiff's injury and treatment."); see also Huntley v.
Foster, 41 Cal. Rptr. 2d 358, 360 (Cal. App. 1995); Beck v. Albany
Med. Ctr. Hosp., 594 N.Y.S.2d 844, 846 (N.Y. App. Div. 1993).
Other cases hold that a treating physician need be listed as an
expert only when called upon to testify generally about the
prevailing standard of care. See Plunkett v. Spaulding, 60 Cal.
Rptr. 2d 377, 387 (Cal. App. 1997) (holding that where a treating
doctor is called to give an expert opinion on the standard of care,
that doctor is properly labeled an expert witness and must be
disclosed to the other party along with other experts); Turner v.
Duke Univ., 381 S.E.2d 706, 716 (N.C. 1989) ("Where a doctor is or
was the plaintiff's treating physician and is called to testify not
about the standard of the plaintiff's care but rather about the
plaintiff's treatment and the doctor's choice of surgical
procedures, he is not an expert witness.") (emphasis added).
Footnote 4:
4 See, e.g., Tzystuck v. Chicago Transit Auth., 529 N.E.2d
525 (Ill. 1988); Holston v. Sisters of the Third Order of Saint
Francis, 618 N.E.2d 334, 343 (Ill. App. 1993).
Footnote 5:
5 Phillips presented testimony as to the standard of care
from several experts: the Medical Advisory Panel; Dr. Raymond
Jennett, an obstetrician/gynecologist; Carol Verga, a certified
nurse midwife; and Phillips herself. All of these experts opined
that Phillips's actions to relieve Gage's shoulder dystocia were
appropriate and that she did not breach the standard of care.
Footnote 6:
6 Our decision that the trial court did not abuse its
discretion in allowing Dr. Newton to testify as an expert disposes
of the Millers' claim that the court erred in giving Jury
Instruction 14, which told the jury that it could consider Dr.
Newton's expert testimony. In our view, Instruction 14 was not
inaccurate in its description of Dr. Newton's testimony.
Footnote 7:
7 The trial court said, in relevant part:
I think that plaintiffs have opened the door
to [evidence of Phillips's character trait of calmness or patience
versus tendency to panic] by [offering] evidence that she was
panicking . . . . I think it's certainly relevant. . . . To the
extent that it's character [evidence,] and I'm not quite sure that
it is, but if it is, clearly [Rule] 404(a) does permit it if it's
a relevant character trait[,] and I think in this case it is. I
think under a [Rule] 403 analysis, it's more probative than
prejudicial. It's not particularly prejudicial and again, [to] the
extent that the issue's been raised, it was raised by the
plaintiffs . . . .
Footnote 8:
8 Alaska Rule of Evidence 404(a) states, in part: "Evidence
of a person's character or a trait of character is not admissible
for the purpose of proving that the person acted in conformity
therewith on a particular occasion[.]"
Footnote 9:
9 For example, the Millers object to testimony by Dr.
Newton that Phillips had called him in to help with deliveries
several times over the years when they "would encounter a mild
shoulder dystocia, . . . and I would have the chance to see how she
managed it[,] and [I] felt comfortable with her knowledge of the
maneuvers and her ability to carry those maneuvers out."
Footnote 10:
10 Phillips presented testimony from two experts who
asserted that the notes made by Phillips and Nurse Leng were
complete and allowed them to form opinions about the propriety of
Phillips's actions. Carol Verga, a certified nurse midwife,
testified that the medical documentation "taken in total between
the [notes of] the nurse and the nurse midwife . . . gives a very
complete picture of what happened"regarding the shoulder dystocia
incident. Dr. Jennett, an obstetrician/gynecologist, also testi-
fied that the standard of keeping accurate and complete records
does not require that "every last thing that was part of a process"
be noted. The Millers' expert, Dr. James Lundquist, admitted that
Phillips's notes were sufficient to describe a case of mild
shoulder dystocia, but that in his opinion Gage's shoulder dystocia
was more severe than "mild dystocia"and that Phillips's notes were
therefore not complete.
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