Costantino v. Herzog

203 F.3d 164 (2nd Cir. 2000)

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Nature of the Case

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Facts

D was the obstetrician who delivered Amanda. During the delivery, her shoulder got trapped behind her mother's pubic bone, a condition known as 'shoulder dystocia.' D performed: (1) the McRoberts maneuver: pulling P's legs toward her head and applying pressure to the area above her pubic bone; (2) the Woods corkscrew: reaching into the womb and rotating baby Amanda to release her trapped shoulder; and (3) the Posterior Arm Sweep: delivering Amanda's free posterior arm to create more space. Amanda was born with 'Erb's Palsy,' an impairment to the nerves running to the arm. Ps sued D alleging that pulling and rotating had caused Erb's Palsy. Ps claimed that Dr. Herzog had deviated from accepted standards of obstetrical practice. D claimed Erb's Palsy was caused by the normal forces of labor. Ps' medical expert was Dr. Nathanson. He was a fellow of the American College of Obstetricians and Gynecologists (ACOG). Relying in part on journals published by ACOG, as well as on the Gabbe treatise, Dr. Nathanson testified that it was a departure from the standard of medical care to engage in 'any manipulation of the head' during a shoulder dystocia delivery because it does nothing to relieve the trapped shoulder and greatly increases the risk of causing Erb's Palsy. D relied on another learned treatise - Williams Obstetrics - which stated that 'downward traction . . . to the fetal head' was among 'the most popular techniques' used to remedy shoulder dystocia. Dr. Nathanson conceded that the Williams treatise was authoritative and that applying traction to the fetal head was indeed the 'most popular' treatment technique for shoulder dystocia. Dr. Nathanson insisted that use of that technique constituted malpractice. D sought to introduce a 15-minute videotape from ACOG's audiovisual library, entitled 'Shoulder Dystocia.' The tape was used to educate physicians' and portrayed the various techniques recommended to remedy shoulder dystocia. Everyone agreed the tape was hearsay. D proffered the 'learned treatise' exception to the hearsay rule set forth in Rule 803(18). Ps objected claiming a tape was not a 'published treatises, periodicals, or pamphlets.' The judge ruled it admissible. It was irrelevant that it was a video instead of a printed work. Dr. Nathanson's made a concession that he had: (1) viewed the videotape at a staff conference some years ago; and (2) testified in a prior action that he generally accepted 'the standards promulgated by ACOG' within the field of obstetrics as 'authoritative.' The entire tape was played twice for the jury. At the close of the video, it stated: “This video does not define a standard of care, nor is it intended to dictate an exclusive course of management. It presents recognized techniques of clinical practice for consideration by health care providers for incorporation into their practices.” During the entire trial, a battle of the experts ensured with more evidence being fought over. The jury found for D on the issue of liability. Ps appealed arguing that Judge Gleeson erred in admitting: (1) the ACOG video; and (2) the two articles from the American Journal of Obstetrics and Gynecology.