MAYSVILLE OBSTETRIC , ET AL. VS. LEE (HARLAN), ET AL.Annotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MAYSVILLE OBSTETRIC AND
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 04-CI-00244
HARLAN LEE AND PENNY LEE
HARLAN LEE, ADMINISTRATOR
OF THE ESTATE OF KATELYN
MICHELLE LEE, AND HARLAN LEE
AND PENNY LEE, INDIVIDUALLY
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 04-CI-00244
LAURA L. SHOWER, M.D., AND
MAYSVILLE OBSTETRIC AND
AFFIRMING IN PART AND REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Maysville Obstetric and Gynecological Associates, P.S.C.
(hereinafter “Maysville Obstetric”) appeals the jury verdict rendered against it for
negligence in the death of Katelyn Lee. Harlan Lee, administrator of the estate of
Katelyn Michelle Lee, and Harlan Lee and Penny Lee, individually, separately
appeal, arguing that they are entitled to a new trial on damages. After careful
review of the record, we affirm in part and reverse in part.
In January 2003, Penny Lee consulted Maysville Obstetric for care
and treatment during her pregnancy. At that time, the shareholders of the P.S.C.
were David Doty, M.D.; Donald Wilson, M.D.; and Dr. Laura Shower, a board
certified obstetrician and gynecologist. Penny Lee primarily saw Dr. Shower;
however, it was Maysville Obstetric’s practice to rotate patients among the various
doctors to ensure that each doctor was familiar with all patients in the group.
On April 18, 2003, Penny had a twenty-week ultrasound, which
revealed a posterior marginal previa, which is not uncommon, but the ultrasound
also did not allow an accurate reading of the four chambers of the heart.
second ultrasound was then scheduled for July 9, 2003, to follow the posterior
marginal previa and the development of the heart. The July 9, 2003, ultrasound
was read and interpreted by Dr. Shower as well within the normal limits, both with
regard to the progression of the marginal previa and the four chambers of the heart.
On September 1, 2003, Penny went into labor when her water broke.
After being advised to go to the hospital at 6:00 a.m. unless her contractions
started, she arrived at the hospital between 7:00 and 7:30 a.m. She was seen by
Nurse Cindy Ginn and Dr. Shower around 7:30 a.m. Nurse Ginn testified at trial
that a vaginal examination revealed that Penny was three centimeters dilated.
When Nurse Ginn conducted the exam, Penny did not bleed, which would have
indicated previa covering all or part of the cervix.
Dr. Shower also performed a vaginal exam and testified that she felt
the smooth surface of the baby’s skull. Dr. Shower also testified that if part of the
placenta had been overlapping the cervix, it would have felt like a piece of meaty
sponge—very different from the feel of the baby’s head. Dr. Shower testified that
when the examiner’s fingers are removed, the mother would bleed if part of the
placenta were over the baby’s head. Finally, Dr. Shower did not contact any blood
vessels, which would have presented a pulsating feel. Dr. Shower testified that the
vaginal exam did not indicate the presence of either placenta previa or vasa previa.
When Penny did not dilate more than three centimeters as expected,
the concern arose that labor was not progressing as it should, and Dr. Shower
decided to use Pitocin, a hormone used to stimulate uterine contractions and speed
up labor. Dr. Shower’s intent was to use an intrauterine pressure catheter (IUPC),
a soft flexible pressure sensor that slides between the baby’s head and the back of
the uterus to provide a reading of the strength of the contractions. As Dr. Shower
inserted the IUPC, she expected to see a flashback of amniotic fluid, telling her she
was in the right spot inside the membranes. However, as she inserted it, she did
not observe a flashback and suspected that the IUPC was inserted between a
normal membrane and the uterine wall, which would explain the lack of fluid.
Therefore, she had to put a hole in the membrane so as to insert the tube. She used
an amnio hook to put the hole in the membranes, but instead of seeing the expected
clean amniotic fluid, Dr. Shower observed a small amount of dark red blood in the
Within seconds of seeing the blood, the baby’s heartbeat dropped. Dr.
Shower then had Penny maneuver from side to side, get on her knees, and gave her
oxygen in an attempt to get the baby’s heartbeat to increase. When these efforts
failed, Dr. Shower prepared for a c-section, which was delayed due to the
anesthetist not being at the hospital on the Labor Day holiday. By the time
Katelyn was finally delivered by c-section, she had lost at least half her blood
volume and had to be resuscitated. She was transferred to Cincinnati Children’s
Hospital, where she remained in the pediatric intensive care unit until she died
three weeks later. The cause of death was listed as hypoxic ischemic
encephalopathy, or lack of oxygen and blood flow to the brain, which occurred at
The July 9 ultrasound, which revealed resolution of the marginal
placenta previa, was performed by Carol McCord, an employee of Maysville
Obstetric. Ms. McCord testified that in 2003, ultrasounds were performed on a
total of about fifty patients per week, which were divided between her and another
technician, Tamala Humphries. Tamala had performed the initial ultrasound on
Penny, which revealed the marginal previa. Ms. McCord testified that in 2003 it
was routine to perform a second ultrasound following the twenty week ultrasound
only if there was a suspected anomaly such as the placenta being low, which
occurred in Penny’s case. She further testified that the patient’s physician would
have sole responsibility for checking and reading the ultrasound results and
scheduling follow up studies. The report she completed was not a final report; it
would then be completed by the physician.
Ms. McCord reviewed Dr. Shower’s notes on the initial twenty week
ultrasound prior to conducting the follow-up ultrasound on July 9th. Dr. Shower
had noted, “[n]ormal anatomy with limited views of four chamber, low posterior
placenta. Review at 32 weeks.” Further, Ms. McCord reviewed Tamala
Humphries’ notes on the first ultrasound, which were “lower uterine segment” and
“marginal,” which means that the placenta was touching the cervical os, an
opening of the cervix. The external os is the opening between the cervix and the
vagina. The internal os is the opening between the uterus and the cervix.
Ms. McCord testified that there was no indication by Dr. Shower for a
transvaginal ultrasound to be performed in July. Furthermore, she did not have the
authority to perform one without the order and approval of one of the group’s
physicians. Dr. Shower never indicated that a transvaginal ultrasound needed to be
Four experts testified in this case. The plaintiffs called Dr. Beverly
Coleman, a radiologist, who agreed with everyone that a marginal placenta previa
will resolve itself in 95% of the cases. She further testified that the problem here
was with the second insertion of the IUPC, which punctured a vessel of the
umbilical cord at the velamentous insertion. Velamentous insertion of the
umbilical cord is a condition in which the major umbilical cord vessels break up in
the fetal membranes around the placenta before reaching the placental disk. The
umbilical cord inserts on the chorioamniotic membranes rather than on the
placental mass. Such a condition is of no major consequence in utero, but can lead
to a greater chance for cord trauma with bleeding during delivery.
Dr. Coleman was critical of the delay in repeating the ultrasound and
testified that good medical practice would have suggested that it be repeated within
four weeks. However, she was somewhat ambivalent in this criticism and stated
that different people follow up in different ways and that if you are going to follow
up later, you should ensure that you are accurate.
The plaintiffs also presented testimony from Dr. Cetrulo, an
obstetrician/gynecologist. Dr. Cetrulo found fault with everything Dr. Shower did
in her care and treatment of Penny. He testified that a vaginal ultrasound should
have been performed after the April ultrasound showed the marginal previa; that
the c-section was not done soon enough; that there was no reason to employ the
amnio hook or the IUPC; and that the maneuver should have been avoided in the
interest of an earlier c-section. He acknowledged, however, that none of the
pictures or other demonstrative evidence from the second ultrasound showed the
placenta near the os; but in spite of that, his testimony was that it was there. It was
Dr. Cetrulo’s testimony that when there is a vasa previa or a velamentous insertion,
an amniohook should not be used.
Essentially, the plaintiffs below argued that had proper ultrasounds
and follow ups been conducted, the velamentous insertion of the umbilical cord
would have been discovered. Had this been the case, Penny would have been
monitored differently throughout her pregnancy and once the catheter punctured an
internal blood vessel, the c-section would have been ordered immediately. The
plaintiffs argued that had this been done, Katelyn’s life would have been saved.
The defense introduced the testimony of Dr. Baha M. Sibai and Dr.
Stephen Hensley. Dr. Sibai is board-certified in obstetrics, gynecology, and
maternal fetal medicine and a professor of obstetrics and gynecology at the
University of Cincinnati. Dr. Sibai agreed with the other doctors that Penny had a
velamentous insertion of the cord, but testified that there was nothing to indicate it
was down near the cervical os. He testified that Penny did not have a vasa previa,
that the likelihood of vasa previa is one in about 5,000 to 15,000, and that it is not
standard practice to screen for it. If Penny had a previa, it would have ruptured
with the membranes. In the approximate 15,000 births Dr. Sibai has seen at the
University of Cincinnati, he has not encountered one vasa previa.
Dr. Sibai testified that an initial ultrasound revealing a marginal
previa only calls for a subsequent ultrasound; it does not require a transvaginal
ultrasound. In his opinion, the follow-up ultrasound met the standard of care. He
testified that an abdominal view provided by an ultrasound catches more previas
than a transvaginal ultrasound. In Dr. Sibai’s opinion, it was wise to wait at least
12 weeks for the second ultrasound to be performed, as four weeks may not give a
marginal previa sufficient time to resolve.
When asked about whether Dr. Shower deviated from the standard of
care by hitting the velamentous cord insertion with the IUPC, Dr. Sibai testified
that it’s unfortunate and a very rare event, but that it could happen to any doctor.
He stated that an IUPC is used in labor and delivery every day and that this is an
extremely rare complication but that they can happen.
Like Dr. Sibai, Dr. Stephen Hensley has never encountered a vasa
previa in his practice. He also testified that even if a marginal previa is found, the
standard of care does not require testing for a vasa previa or a velamentous
insertion. In fact, his testimony indicated that a velamentous insertion is
impossible to prove on ultrasound, whether transvaginal or not. He agreed with the
other physicians that Penny did not have a placenta previa because no bleeding
resulted from the cervical exams. Dr. Hensley testified that even if Dr. Shower had
known of a velamentous insertion, it should not have affected her management of
the case. He would have performed a normal delivery and would not have
hesitated to use an IUPC.
Finally, plaintiffs put on proof that other than the loss of blood that led
to her death, Katelyn was a completely normal and healthy baby. The defense did
not dispute that but for the injury that occurred during birth, Katelyn would have
had a normal life expectancy. Plaintiffs then presented evidence of the loss to the
estate of Katelyn’s ability to earn money. Dr. William Baldwin, an economic
expert, testified that over her lifetime, Katelyn would have earned from $1,115,751
to $2,744,301, depending on her ultimate educational attainment. The defense did
not dispute this testimony.
At the close of the testimony, the jury found that Dr. Shower was not
negligent and made no award against her. However, the jury found that Maysville
Obstetric failed to exercise the degree and care and skill ordinarily expected of a
reasonably competent obstetrical services provider acting in the same or similar
circumstances, and that such failure was a substantial factor in causing the injuries
to the plaintiffs. The jury awarded damages to Katelyn’s estate for medical and
funeral expenses incurred and to her parents for the loss of Katelyn’s love,
affection, companionship, and support. The jury did not award damages for
Katelyn’s loss of power to earn money.
Maysville Obstetric filed a motion to vacate judgment and the Lees
filed a motion for a new trial. On August 2, 2007, the Mason Circuit Court denied
both motions. Maysville Obstetric now appeals the jury’s award for negligence
against it and Harlan Lee, Administrator of the Estate of Katelyn Michelle Lee, and
Harlan Lee and Penny Lee, individually, appeal the jury’s award, arguing that the
undisputed proof was that Katelyn was a completely normal and healthy baby and
that the law requires the jury to award damages for her loss of power to earn
Maysville Obstetric argues that because Dr. Laura Shower was not
found to be negligent, any negligence or liability cannot be imputed to it as the
principal, as there was no negligence to impute. Furthermore, it argues that
because Carol McCord was not a party, there were no jury instructions as to her
and no evidence which would have supported a verdict based upon her negligence.
The Lees argue that the evidence was sufficient and showed that Katelyn’s death
was caused by deficiencies in medical care rendered by the defendants.
In Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998), the Kentucky
Supreme Court articulated the standard for reviewing jury determinations:
[W]hen an appellate court is reviewing evidence
supporting a judgment entered upon a jury verdict, the
role of an appellate court is limited to determining
whether the trial court erred in failing to grant the motion
for a directed verdict. All evidence which favors the
prevailing party must be taken as true and the reviewing
court is not at liberty to determine credibility or the
weight which should be given to the evidence, these
being functions reserved to the trier of fact. The
prevailing party is entitled to all reasonable inferences
which may be drawn from the evidence.
Upon completion of such an evidentiary review, the
appellate court must determine whether the verdict
rendered is palbably or flagrantly against the evidence so
as to indicate that it was reached as the result of passion
Furthermore, “[a]ll evidence which favors the prevailing party must be taken as
true and the reviewing court is not at liberty to determine credibility or the weight
which should be given to the evidence, these being functions reserved to the trier
of fact.” Humana of Ky., Inc. v. McKee, 834 S.W.2d 711, 718 (Ky.App. 1992)
(internal citations omitted).
The Lees argue that their two experts stated unequivocally that
Katelyn’s death was caused by the negligence of Maysville Obstetric and that
accordingly, the verdict was supported by substantial and competent evidence. A
careful review of the trial record indicates that the jury was presented with
conflicting expert medical testimony. According to the Lees, both Dr. Shower and
Maysville Obstetric were negligent in their care of Penny and should have detected
the velamentous insertion via ultrasound and should have conducted further and
more complete ultrasound imaging. According to Dr. Shower and Maysville
Obstetric, Penny did not have any type of previa and the velamentous insertion was
not capable of being detected via ultrasound, whether abdominal or transvaginal.
The question for this court to determine is “whether the estimation of the jury is
supported by substantial and competent evidence.” Rogers v. Kasdan, 612 S.W.2d
133, 135 (Ky. 1981). A review of the record indicates that it was, despite the
conflicting evidence presented by the underlying defendants.
The jury was in the position to hear and weigh the evidence and to
judge the credibility of the testifying witnesses. After doing so, it determined that
the care provided by Maysville Obstetric amounted to negligence. It is not the role
of this Court to supersede the jury and substitute its judgment of the conflicting
testimony, and we decline to do so in this instance. Accordingly, we affirm the
Mason Circuit Court’s order in so far as it denied the underlying defendant’s
motion to vacate judgment.
The Lees argue that they are entitled to a new trial on damages
because Kentucky law requires an award of lost earnings in a wrongful death
action involving an infant, citing Rice v. Rizk, 453 S.W.2d 732 (Ky. 1970). In
Rice, the court found that “[t]he measure of damages in a wrongful death action
involving an infant is the destruction of the infant’s power to earn money. . . .
There is an inference that the child would have had some earning power, and in
this lies the basis for recovery.” Id. at 735. Rice was a medical negligence case
involving the death of a premature infant where the jury did not award anything for
the destruction of the infant’s power to earn money. Because of the finding of
negligent causation against the doctor and the award for the other elements of
damage of a wrongful death claim, the Court held that “[i]t follows that the jury
should have made some award for the destruction of the earning capacity of infant
Rice.” Id. Furthermore, Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667,
671 (Ky. 1992) cites Rice with approval, finding that unless there is evidence that
the jury could reasonably believe that the decedent possessed no power to earn
money, damages naturally flow from the wrongful death of a person.
Based on the fact that there was no dispute that other than the blood
loss leading to her death, Katelyn was an otherwise normal and healthy child, we
agree with the Lees that the case law in Kentucky provides that the jury must make
some award for loss of earning capacity. Accordingly, we reverse the Mason
Circuit Court’s order denying the underlying plaintiffs a new trial on damages and
instruct that the parties be allowed to present evidence as to the damage to the
estate by virtue of the destruction of Katelyn’s power to earn money. Furthermore,
we find the instructions found in Turfway, 834 S.W.2d at 673 to be appropriate as
argued in the Lee’s brief on appeal. Thus, the trial court is instructed to model the
jury instructions accordingly.
For the foregoing reasons, the order of the Mason Circuit Court is
hereby affirmed in part and reversed and remanded in part.
BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
Frank V. Benton IV
Jerome P. Prather
William P. Swain