SARAH STUBBLEFIELD AND BEN PICKETT INDIVIDUALLY AND IN THEIR REPRESENTATIVE CAPACITY OF THEIR MINOR CHILD DOROTHY PICKETT v. ACADIANA BIRTH HOUSE AND MICHEL MARTIEN (2025)

In this medical malpractice case, Sarah Stubblefield and Ben Pickett sought survival and wrongful death damages from Dr. Darryl Elias, among other defendants, for the brain damage and eventual death of their daughter, Dorothy. Following a jury trial finding that Dr. Elias did not breach the standard of care in providing medical advice/treatment regarding Sarah and Dorothy, Plaintiffs filed a motion for new trial. After the trial court denied their motion for new trial, Plaintiffs filed this appeal alleging errors in jury instructions, in allowing argument concerning the duty of Dr. Elias, and in failing to grant the motion for new trial. For the following reasons, we affirm the judgment of the trial court.

FACTS

Dr. Darryl Elias, an obstetrician and gynecologist, first saw Sarah on June 13, 2016, when she was around eleven weeks pregnant. She saw Dr. Elias a couple more times, and around September 8, 2016, Sarah decided to transfer to Acadiana BirthHouse, LLC, under the care of midwives. Dr. Elias signed off on Sarah's transfer of care to the midwives, determining that she was a low-risk pregnancy.

On January 5, 2017, Dr. Elias, while duck hunting with his family, received a phone call from one of the midwives, Michele Martien, with concerns about Sarah's amniotic fluid level results indicated by a Biophysical Profile (BPP) test. The BPP test is a prenatal ultrasound that assesses the well-being of a fetus. It is a four-part test. Each part is scored a zero or a two. Sarah scored six out of eight on the test. One of the four tests measures amniotic fluid levels, and Sarah scored zero on this test. The BirthHouse records indicate that Dr. Elias opined that Sarah remained low risk but told her he would take over her care on Monday if she had not delivered.

On January 7, 2017, Sarah went to BirthHouse at 8:15 in the morning in labor. The baby girl, Dorothy, was delivered at 1:47 p.m. When the baby was born, she suffered hypoxic ischemic encephalopathy caused by low oxygen and low blood flow due to cord compression. Lack of oxygen also caused her heart to arrest. Dorothy was transferred by ambulance to the hospital, but fifty-one minutes passed before her heartbeat was restored. As a result of a permanent brain injury, Dorothy eventually died on February 28, 2020.

Dorothy's parents, Sarah Stubblefield and Ben Pickett, filed suit against several defendants, including BirthHouse; midwives Michel Martien and Kira Smith; Dr. Darryl Elias; and Dr. James Godchaux, the radiologist who scored the BPP test.

The case proceeded to a jury trial against BirthHouse, the midwives, and Dr. Elias on April 8-12, 2024. Prior to the jury rendering a verdict, a settlement was reached with BirthHouse and the midwives. Therefore, the only issue before the jury was Dr. Elias's negligence. The jury returned a verdict finding that Dr. Elias did not breach the standard of care in providing medical advice/treatment regarding Sarah and Dorothy.

Plaintiffs appeal this judgment arguing that the trial court erred by (1) including La.R.S. 37:3258(A) in the jury instructions; (2) in telling the jury that Dr. Elias could not be held responsible for problems that developed after the January 5 telephone call despite a previous summary judgment ruling; and in (3) failing to grant their motion for new trial. Plaintiffs argue that a new trial is warranted because the first two errors contributed to the jury's verdict. They also claim that the entire case was tainted by Dr. Elias's false testimony and warrants a new trial.

Louisiana Code of Civil Procedure Article 1972(1) provides that a new trial shall be granted when the verdict appears clearly contrary to the law and evidence. Louisiana Code of Civil Procedure Article 1973 provides that a new trial may be granted in any case where there is a good cause. In exercising its discretion to grant a new trial, a trial court must be convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Arnouville v. Crowe, 16-46 (La.App. 1 Cir. 9/16/16), 203 So.3d 479. In reviewing a trial court's ruling on a motion for new trial, the appellate court must determine whether the trial court abused its discretion. Pitts v. Louisiana Med. Mut. Ins. Co., 16-1232 (La. 3/15/17), 218 So.3d 58.

JURY INSTRUCTION ON LOUISIANA REVISED STATUTES 37:3258(A)

Plaintiffs claim that the trial court erred in including a jury instruction on La.R.S. 37:3258(A) arguing that it only applies to an initial risk assessment and Dr. Elias was not making an initial risk assessment during the January 5, 2017 telephone consult. Plaintiffs argue that La.R.S. 37:3244 requires that a physician evaluate and examine a pregnant woman before a midwife can provide care and La.R.S. 37:3258(A) provides for the risk assessment that is required. It is Plaintiffs’ position that La.R.S. 37:3258(A) does not apply to consults involving a midwife's continuing care of a patient once the initial assessment is completed. Plaintiffs claim that Dr. Elias made a treatment decision as opposed to a risk assessment that caused the baby's brain damage and eventual death.

Pursuant to La.Code Civ.P. art 1792(B), “the court shall instruct the jurors on the law applicable to the cause submitted to them.” It is the responsibility of the trial court to reduce the possibility of confusing the jury and the court should decide what law is applicable and appropriate. Barber Bros. Contracting Co., LLC v. Capitol City Produce Co., LLC, 23-788 (La. 6/28/24), 388 So.3d 331, on rehearing on other grounds, 23-788 (La. 12/19/24), 397 So.3d 404; Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586 (La. 4/1/11), 61 So.3d 507. A reviewing court must decide whether the trial court adequately instructed the jury. Id.

Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury.

Adams v. Rhodia, Inc., 07-2110, p. 6 (La. 5/21/08), 983 So.2d 798, 804.

“Determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case.” Id.

Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case.

Id. at 805.

“[A] reviewing court must exercise great restraint before it reverses a jury verdict due to erroneous jury instructions.” Barber Bros. Contracting Co., LLC, 388 So.3d at 343.

Louisiana Revised Statutes 37:3244 (emphasis added) provides, in pertinent part:

A. Licensed midwifery in Louisiana is limited in scope to practice and outlined in this Section.

B. The licensed midwife may provide care to low risk patients determined by physician evaluation and examination to be essentially normal for pregnancy and childbirth. Such care includes prenatal supervision and counseling; preparation for childbirth; and supervision and care during labor and delivery and care of the mother and the newborn in the immediate postpartum period if progress meets criteria generally accepted as normal as defined by the board.

Louisiana Revised Statutes 37:3258(A) provides:

Physician evaluation and examination as provided in R.S. 37:3244 shall be deemed to constitute a risk assessment. A physician performing a risk assessment is responsible only for determining that at the time of the risk assessment the individual is at low or normal risk of developing complications during pregnancy and childbirth. For any physician performing a physician risk assessment, the physician-patient relationship shall only exist for the purposes of the risk assessment and shall not continue after the conclusion of the physician risk assessment.

Plaintiffs argue that inclusion of La.R.S. 37:3258(A) in the jury instructions allowed Dr. Elias to improperly argue that any responsibility for problems after January 5 was excused because no physician/patient relationship existed after the January 5 phone call.

We do not agree with Plaintiffs that La.R.S. 37:3258(A) applies only to an initial risk assessment. There is no such indication in the wording of the statute. We agree that it states it applies to the initial assessment of La.R.S. 37:3244, but this is to establish that the physician's examination to transfer care to a midwife is considered an assessment itself to which La.R.S. 37:3258(A) applies. There is also no requirement for an examination except for a La.R.S. 37:3244 initial assessment. Louisiana Revised Statutes 37:3258(A), regarding professional liability of a physician, contemplates risk assessments other than an initial assessment. It is foreseeable that a physician may have assessments during the time a midwife is caring for a pregnant woman while the care remains with the midwife. As noted by Dr. Elias, La.R.S. 37:3241(12) defines “low risk” to include any disease that may arise during the pregnancy. Clearly, the statutory scheme regarding care by midwives contemplates that a midwife may have to consult a physician during pregnancy if issues arise during the pregnancy.

We find no error in the trial court's inclusion of La.R.S. 37:3258(A) in the jury instructions. It is the law, which we find is not limited to an initial assessment by a doctor transferring care to a midwife. The statute also includes any assessment by a doctor during pregnancy when a woman is under the care of a midwife to determine if there is a risk of developing complications.

DEFENSE COUNSEL ARGUMENT

In connection with the above argument, Plaintiffs argue that the jury instruction on La.R.S. 37:3258 allowed defense counsel to improperly argue in closing argument that Dr. Elias's responsibility ended with the January 5 phone call and he could not be held responsible for any problems that developed after the January 5 telephone consult, contrary to the previous summary judgment.

The trial court has great discretion in regulating and controlling the opening and closing arguments to a jury within proper bounds, and its rulings will not be reversed unless they constitute an abuse of discretion. Melancon v. Lafayette Ins. Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, writs denied, 06-974, 06-1006 (La. 6/16/06), 929 So.2d 1291. “[I]mproper statements by counsel must have influenced the jury and contributed to its verdict to constitute reversible error.” Id. at 706.

On September 21, 2023, the trial court ruled that (emphasis added): “Plaintiffs’ Motion for Summary Judgment on the issue of Dr. Darryl Elias’ assumption of the duty to provide medical care within the required standards to Plaintiff Sarah Stubblefield and her unborn child, Dorothy Stubblefield, during Dr. Elias’ January 5, 2017 telephone consult with Midwife Michel Martien is hereby granted.”

In closing argument, Defense counsel stated:

Physician evaluation and examination as provided ․ by – Revised Statute[s] 37:3244 shall be deemed to constitute a risk assessment. A physician performing a risk assessment is responsible only for determining that, at the time of the risk assessment, the individual is at low risk of developing complications during the pregnancy and childbirth.

For any physician performing a risk assessment, the physician-patient relationship shall only exist for the purposes of the risk assessment and shall not constitute – or continue after the conclusion of the physician risk assessment.

Ladies and gentlemen, that's what occurred on January 5th. And the law is that anything that occurred after January 5th in this particular case that constituted negligence or a problem is not the responsibility or the fault of Dr. Elias.

When charging the jury after closing arguments, the trial court informed the jury on its summary judgment ruling. It is clear to this court that the summary judgment ruling was that Dr. Elias assumed a duty to provide medical care within medical standards during the January 5 phone call. It was up to the jury to decide if he violated any of those standards during the phone call which resulted in injuries to Dorothy that occurred after the phone call.

After the hearing on the motion for new trial on September 9, 2024, the trial court issued written reasons. In ruling on the motion for new trial on this issue, the trial court did not find that defense counsel's statements made during closing were a sufficient basis for granting a new trial. It found that it had informed the jury of the full law applicable to this case, including the rule that the statements of the lawyers are not evidence. The trial court noted that it instructed the jury before trial began as follows:

We are now ready for the lawyers to make opening arguments. Remember that the statements that the lawyers make now, as well as their closing arguments, are not evidence and they are not the instructions on the law that I have told you I will give you at the end of the trial.

We find it important to note what evidence the jury heard at trial in making its decision that Dr. Elias did not breach the standard of care when he assumed a duty during the phone call. When Dr. Elias received the phone call on January 5, he was duck hunting with his family. He took the call even though he was not on call at the time. Concerning Dr. Elias's testimony regarding the substance of the phone call, Plaintiffs argue that Dr. Elias testified falsely because he said one thing in his deposition and something different at trial. The jury heard both Dr. Elias's deposition testimony and his testimony at trial. Plaintiffs confronted Dr. Elias with his deposition testimony that he was not presented with the test results by the midwife during the phone call and if he had the benefit of the test results, he would have transferred care for delivery. Plaintiffs then point to Dr. Elias's testimony at trial in which he testified that he was told the test results but that the results did not require immediate delivery of the baby. Dr. Elias testified that the deposition took place during a Zoom meeting because it was during Covid. He testified that there was a lot of confusion during the deposition.

When a jury is presented with conflicting testimony from a deposition and at trial, it is the jury's role to assess credibility and resolve the conflict as the factfinder. See Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764.

Dr. Elias further testified at trial that a score of six out of eight on the BPP test does not mean the baby is in decent shape and it does not mean the baby is in bad shape. He explained that all of the parameters must be evaluated to see the whole picture. He testified that the baby was not under duress. Dr. Elias agreed that some witnesses testified that the BPP could have even been scored eight out of eight based on all of the measurements. He also knew that Sarah preferred a natural birth, and based on the test results, it was appropriate to continue with the pregnancy.

Dr. Elias further testified that zero on the BPP does not mean zero amniotic fluid and that you can still score a zero and not have oligohydramnios, which is when the amniotic fluid gets below the accepted normal limit. Dr. Elias explained that a normal amniotic fluid index result is scored five to twenty-five centimeters and Sarah's test results showed her level to be a five. Also, the midwife notes indicate the baby was a normal, healthy baby on January 5 and 6. When Sarah went into labor on January 7, the membranes ruptured and there was a moderate amount of clear fluid noted, which Dr. Elias stated was a normal amount of fluid.

Dr. David Berry, an expert in maternal fetal medicine, testified on behalf of Plaintiffs. Dr. Berry testified that Dr. Elias breached the standard of care on January 5 when he did not order Sarah transferred to a physician for delivery. Dr. Berry stated that she was at elevated risk at the time with abnormal amniotic fluid and an abnormal BPP test. He further testified that the breach led to Dorothy's ischemic encephalopathy and ultimate death. Dr. Berry testified that this was caused by cord compression which exhausted Dorothy's heart over a prolonged period, probably hours, and caused dramatic cardiac arrest while the baby was in utero, resulting in damage to her brain. It was his opinion that Dorothy would be fine if she had been transferred at the time of the phone call.

Dr. Berry also testified that the midwives failed to identify abnormalities in Dorothy's heart rate and distress and failed to transfer care, causing Dorothy a lost chance of a much better outcome. Dr. Berry noted that the amniotic fluid was clear when ruptured spontaneously at 9:55 am but by 1:00 pm meconium was noted in the baby's hair during pushing. Dr. Berry explained that the presence of meconium, the baby's first bowel movement, creates a level of awareness that something might be going on. He testified that if the baby starts getting into trouble with a dropping heart rate and making gasping movements, then it will inhale the meconium. There was an indication that Dorothy had meconium aspiration syndrome because the presence of meconium was noted when she was intubated. She had to be placed on an ECMO machine, or lung bypass machine at the hospital.

According to the BirthHouse records, Dorothy was born at 1:47 pm. No heart rate or breath sounds were noted. Resuscitation efforts were initiated. EMS was called and arrived at 1:55 pm. Dorothy was transferred to the hospital at 1:58 pm, where her heartbeat was later restored after approximately fifty-two minutes.

Dr. Elias testified that if Dorothy had been born in a hospital, there would be resources available that a midwife does not have access to including epinephrine, a neonatal intensive care unit, continuous fetal monitoring, anesthesia, and laboratory evaluation.

Dorothy was diagnosed with a heart condition after delivery known as Tetralogy of Fallot, which is a heart condition present at birth and was not related to the cord compression. It consists of four abnormal heart problems which cause blood flow issues. Infants with this heart condition eventually require heart surgery.

Based on the above analysis, we find that the trial court did not abuse its discretion in refusing to grant a motion for new trial. The jury's verdict was supported by a fair interpretation of the evidence. Based on the evidence and expert testimony presented to the jury, the jury decided that Dr. Elias made an appropriate decision when he conferred with the midwife. The evidence and testimony support this decision. While the jury could have decided that Dr. Elias should have admitted Sarah to the hospital based on the information he received on the phone call, it was reasonable for the jury to conclude that Dr. Elias did not breach the standard of care during the phone call when he determined that it was not necessary to transfer Sarah to the hospital for delivery at that time. Just because something went wrong during the delivery does not mean that Dr. Elias breached the standard of care by not transferring Sarah to the hospital for delivery during that phone call. The evidence also established that there were no issues until the delivery was in progress and the midwives missed some signs which required immediate attention. The jury could also have decided that the midwives were not equipped to manage the situation once it arose. Everything was going well, and there was a moderate amount of amniotic fluid when the membranes ruptured. At some point, Dorothy began to go into fetal distress which the midwives failed to discover, maybe because they did not have the necessary tools as one would in a hospital setting. We do not find defense counsel's statement during closing arguments affected the jury's decision given all the other instructions and evidence presented to the jury.

For the reasons set forth in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Sarah Stubblefield and Ben Pickett.

AFFIRMED.

I agree with the majority on the result. The jury's actions were within the scope of its authority when it concluded that Dr. Elias did not violate the prevailing standard of care. Over a period of several days, the jury heard from multiple experts. Some of the experts suggested that Elias committed malpractice, and some opined that he did not. It was the jury's prerogative to weigh that evidence and decide which to credit and which to discount. When there is more than one permissible view of the evidence, the finder of fact can never be manifestly wrong. In the end it did its job, and like the majority, I would not disturb its verdict. However, the majority finds no error with either the jury instructions or the defendant's closing argument. Because I do, I must concur.

Louisiana Revised Statute 37:3258(A) contemplates “a risk assessment” to determine whether a pregnant woman is a good candidate for midwife care. The first sentence of that statute makes it clear that a “[p]hysician evaluation and examination” is required to “constitute a risk assessment.” The January 5th call obviously was not an examination, and consequently, could not have been a risk assessment as contemplated by the statute. Instead, it was a garden-variety consultation that specialists such as Dr. Elias undertake regularly in the normal course of their practices. Furthermore, once the examination is complete, the physician determines whether a woman is “at low or normal risk of developing complications during pregnancy and childbirth.” That simply was not the purpose of the subject telephone call. Because the consultation by Dr. Elias was not a risk assessment pursuant to La R.S. 37:3258(A), that statute did not apply. Therefore, it was error for the trial court to charge the jury on it. It follows also that able counsel for Dr. Elias should not have been allowed to seize upon that charge when he argued to the jury.

I am mindful, though, that, as pointed out by the majority, this court “must exercise great restraint before it reverses a jury verdict due to erroneous jury instructions.” Barber Bros. Contracting Co., LLC v. Capitol City Produce Co., LLC, 23-788 (La. 6/28/24), 388 So.3d 331, on rehearing on other grounds, 23-788 (La. 12/19/24), 397 So.3d 404. And our standard of review is manifest error “unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts.” Adams v. Rhodia, Inc., 07-2110, p. 6 (La. 5/21/08), 983 So.2d 798, 805.

While the jury instruction was erroneous, I still find the jury was not so confused that it was unable to reach a verdict based on the law and the facts. Similarly, while a part of Dr. Elias’ closing argument directed the jury towards law that was not implicated by the facts, it was but a small part of the argument which itself was only a fraction of weeklong trial. Also, I find the trial court's explanation that counsel's statements were not law mitigated any confusion.

The majority reached the right conclusion, and I concur therein.

GUY E. BRADBERRY JUDGE

Gremillion, J., concurs and assigns reasons.