assuming without deciding that the defendant-physician, who had never met or treated the patient, “had a duty to use reasonable care when conferring with the nurse midwives” who developed the patient’s treatment plan but noting that the plaintiff’s theory was not based on the defendant-physician’s “fail[ure] to identify any material risks of which the [nurse midwives] were not aware”
How later courts described this case
- assuming without deciding that the defendant-physician, who had never met or treated the patient, “had a duty to use reasonable care when conferring with the nurse midwives” who developed the patient’s treatment plan but noting that the plaintiff’s theory was not based on the defendant-physician’s “fail[ure] to identify any material risks of which the [nurse midwives] were not aware”
- noting that § 324A has not been formally adopted in the District of Columbia
- explaining that the absence of decisionmaking authority over a patient’s course of treatment suggests no physician-patient relationship
- observing that an articulation of negligence elements that requires “establishing the applicable standard of care” is “abbreviated” insofar as it “assumes that the defendant owes the plaintiff a duty of care”
Written by the judges who cited it.
The opinion
THOMPSON, Associate Judge,
concurring:
I join in the opinion written by Judge Fisher, but I write separately, in response to Judge Ruiz’s dissent, to underscore several points.
First, there is no dispute that Dr. Mio-dovnik’s review of the nurse-midwife’s notes on Ms. Abdul-Haqq was a routine review. Ms. Abdul-Haqq’s case was one of several presented at the meeting with Dr. Miodovnik, and nothing in the record suggests that anyone viewed this as a complicated case, a case of a type the nurse-midwives had not seen before, or a case involving risks with which the nurse-midwives were unfamiliar. Quite the contrary, the record shows that DCBC had given Ms. Abdul-Haqq a consent form that particularly addressed the risks associated not only with a first VBAC, but also with a vaginal birth after two cesarean sections.
Second, it is important to describe in detail what the DCBC consent form signed by Ms. Abdul-Haqq disclosed to her. It disclosed inter alia that:
A tear or opening in the uterus (womb) occurs in 5 to 10 women out of every 1,000 low risk women who try VBAC (0.5% to 1.0%)_Risks to the baby if there is a tear of the uterus are brain damage and death.... About 10% of the time the baby is harmed when the uterus tears.... The risk of your uterus tearing during labor is increased with any of the following: ... More than 1 previous cesarean section .... If a vaginal birth cannot occur, then a cesarean birth must be done. The risk of infection is doubled when a cesarean delivery is done after labor rather than before labor.
(Italics added.) Given what DCBC told its patient Ms. Abdul-Haqq on this form (which she signed), I see no basis for holding that Dr. Miodovnik’s differing perception of the risk a VBAC presented gave rise to the claimed duty to Ms. Abdul-Haqq.
Third, an important fact in this case is that Ms. Abdul-Haqq “very much wanted to have a vaginal birth.” That was her choice to make, notwithstanding the risks and notwithstanding the statement in the American College of Obstetricians and Gynecologists (ACOG) Practice Bulletin that a trial of labor is “contraindicated” after a cesarean section. Cf. Miller-McGee v. Washington Hosp. Ctr., 920 A.2d 430, 442 (D.C.2007) (rejecting, as premise of claim that patient would have had no choice but to consent to a forceps-assisted vaginal delivery, argument “that a c-section was not an alternative for appellant because ‘a *998 c-section is not offered to a patient as an alternative to vaginal delivery or assisted vaginal delivery unless for some reason surgery is medically necessary,’ ” since the argument “suggests that professional custom or practice alone [to the exclusion of patient self-determination] may dictate whether the obstetrical patient has an alternative”). And, the record does not contain standard-of-care testimony that allowing a trial of labor after two cesarean sections where the patient understands the risks and chooses that course violates the standard of care. 1 So it cannot be assumed that Dr. Miodovnik had a duty— whether arising from knowledge that the nurse-midwives took his advice very seriously, or from knowledge that the nurse-midwives “did what he advised them to do,” or from his persuasive abilities — to make some type of effort to assure that the course of treatment was a cesarean.
Fourth, contrary to the statement in the dissent that Dr. Miodovnik did not “record the request he claims he made for Nurse-Midwife Alexander to impress on Ms. Abdul-Haqq the serious risks of attempting labor and vaginal delivery,” Dr. Miodov-nik’s notes do corroborate his statement. His recommended plan was that the “patient understand” 2 the risk of VBAC after a second cesarean section (and that prophylactic antibiotics be given during labor, if the patient continued to want a trial of labor). Assuming that Dr. Miodovnik had a duty to recommend a plan, I think there is no genuine issue that he did so.
Fifth, although plaintiffs alleged in their complaint that Dr. Miodovnik “fail[ed] to recognize the risks associated with allowing Plaintiff to deliver vaginally,” the record belies that claim. As to plaintiffs’ claim that Dr. Miodovnik “fail[ed] to give proper advice in consulting with [DCBC],” I believe Judge Fisher has aptly characterized the claim as one that Dr. Miodov-nik did not intervene — either by “ordering] the scheduled surgical delivery that Ms. Abdul-Haqq clearly required” (a quote from appellants’ brief), instructing the midwives not to assist Ms. Abdul-Haqq with a vaginal delivery, ordering that Ms. Abdul-Haqq be told that she must have a cesarean, following up with the nurse-midwives to make sure they had reiterated the risks to Ms. Abdul-Haqq, or, perhaps, making sure that Ms. Abdul-Haqq heard an opinion attributed to Dr. Miodovnik. I believe the majority opinion rightly declines to recognize a duty to do any of those things in light of the nurse-midwives’ independent responsibility for the care of their patients. I find persuasive the comments of amici American College of Nurse-Midwives and American Association of Birth Centers that, although *999 only a surgeon may perform a cesarean section, it is within the scope of practice of certified nurse midwives to “determin[e] whether a client requires a cesarean section.” And, as Judge Fisher correctly notes, “nothing in [the] MOUs either authorized or obligated Dr. Miodovnik to usurp control over the care and treatment of DCBC clients.”
Finally, I respond to the observation in the dissent that Ms. Abdul-Haqq “readily agreed” to a cesarean section after Dr. Leslie advised her of the risk of attempting a vaginal delivery, and the statement that “had [such advice] been given timely, [it] likely would have averted the tragedy in this case.” I would observe (and I think anyone who has undergone labor can attest) that a woman’s readiness, once labor is upon her, to consent to a procedure she did not previously want, probably says more about the pain and anxiety attendant to labor than about the adequacy or inadequacy of previous warnings and advice. 3 More to the point, the fact that Ms. Abdul-Haqq readily agreed to a cesarean after she went into labor does not support a conclusion that Dr. Miodovnik owed a duty to her.
. Both the majority opinion and the dissent note Dr. Miodovnik's testimony that VBAC "under standard of care ... was not allowed ... [bjecause it’s clearly said, by ACOG, that if you have two caesarean sections without vaginal delivery, it is contraindicated of VBAC.” But Dr. Miodovnik was not testifying as a standard-of-care expert, and to say that a procedure is "contraindicated” is not necessarily to say that allowing it or performing it violates the standard of care. Cf. Wyszomierski v. Siracusa, 290 Conn. 225 , 963 A.2d 943, 950 (2009) ("The word 'contraindicate' simply means 'to make (a treatment or procedure) inadvisable.’ ... [W]e reject the plaintiff's argument that testimony regarding contraindications implicated the relevant standard of care”).
. My colleagues add a “[sic]” to the quotation at this point, as if Dr. Miodovnik was merely observing that the "patient understands the risks.” I think the notation in the "Plan” section of Dr. Miodovnik’s notes is more reasonably read to reflect use of the subjunctive: Dr. Miodovnik’s recommended plan that "the patient understand” — i.e., be made to understand — "that the risk of VBAC after two cesarean section is much higher for uterine rupture — fetal death.”
. I note that in addition to signing the DCBC consent form, Ms. Abdul-Haqq initialed a line stating, "If I choose a VBAC, this consent will be reviewed as needed during the labor. I may want to ask for a repeat cesarean section or my doctor may find a need to deliver my baby by cesarean section."