Midwife Testifies Against Nurses in GA Birth Injury Case

A court in Gwinnet County, Georgia rendered a verdict in favor of plaintiff Melissa Dempsey, both individually and as the guardian of her daughter in a birth injury lawsuit. The case centered around allegations that attending nurses at Gwinnett Medical Center misinterpreted vital information from a fetal monitor at the time of the minor plaintiff’s birth. The plaintiff argued that her little girl experienced prolonged oxygen deprivation during her mother’s labor, causing her to be born with severe brain damage, epilepsy and cerebral palsy. Had the plaintiff’s medical team ordered a cesarean section, the lawsuit alleged, the child might not have suffered permanent neurological impairments.

Lawyers for the defendant hospital appealed the $13.9 million malpractice verdict, based on one of the plaintiff’s expert witnesses – a certified nurse midwife named Colleen Mannering. The defense objected to the midwife’s testimony in the case, arguing that she couldn’t testify about the actions of the attending nurses in Georgia because she herself wasn’t a delivery or labor nurse. “Frankly, the argument was never raised about her qualifications until the moment she was called as a witness, so at that point [the plaintiff’s trial lawyers] were strategically committed to using her,” said co-counsel for the plaintiff.

Plaintiff wins $13.9 million in birth injury lawsuit

The defense filed a motion for a new trial, disputing the midwife as an expert witness, but Dempsey appealed. Revisiting the birth injury verdict, the Georgia Court of Appeals split 4-3 on whether midwives could testify against nurses.

The majority opinion of the Georgia Court of Appeals was written by Judge John Ellington, who stressed that Mannering was also a registered nurse and that the Georgia Board of Nursing oversees both nurses and midwives. Judge Ellington wrote that the plaintiff’s expert witness Mannering  presented testimony that spoke of her extensive experience – nearly 20 years—in the field of labor and delivery. Her career started as a registered nurse and she later completed additional training to become a certified midwife in Boston.

Judge Ellington also noted that Mannering was currently practicing as a midwife, managing and working alongside registered nurses as part of a labor team. In the majority opinion, Ellington stated that Georgia law requires experts in medical malpractice cases to be members of the “same profession” as the health care professional whose actions are in question—except in those cases involving physicians’ expert testimony.

Georgia’s licensing system indicates that a certified nurse midwife is a registered nurse with extensive training in a specialized field. Ellington added that Georgia statute on expert affidavits does not have a separate listing for nurse midwives and only lists “nurses.”

Judge Carla McMillian was joined by Judges Gary Andrews and William Ray II in dissent. Judge McMillan concluded that the Legislature’s passage of the “same profession” requirement for medical malpractice experts was implemented in order to enforce stricter rules in those types of lawsuits, adding that the single exception to the “same profession” rule was in cases where doctors testified as experts regarding non-doctors of the sort that the doctor has taught or overseen.

Birth asphyxia and fetal dangers

In the original trial, the defendant hospital contended that the minor child’s injuries and brain damage were caused by an infection, not from malpractice on the part of the nurses. Oxygen deprivation to the fetus – or birth asphyxia – can result from a number of complications during labor and delivery.

Other conditions that may lead to birth asphyxia and fetal brain damage include:

• Placental separation or abruption
• Umbilical cord problems
• Infection in the mother or baby
• High or low blood pressure in the mother
• Baby’s airway is malformed or blocked
• Baby suffers from anemia

Resources Resources