The opinion
BROWN, Chief Judge,
dissenting in part,
hi agree that Dr. Ziegler was negligent in delaying the delivery of the child after he received the laboratory results at 9:00 a.m. on November 4; however, a successful delivery may still have been possible, or at least the damage lessened, if the delivery had been immediately performed when the abnormalities on the fetal heart tracings first appeared. This child was under distress from 3:30 p.m. until 5:00 p.m. before it was reported to Dr. Ziegler.
*1100 I disagree with the majority view that Dr. Ziegler’s negligence was a “superseding cause” of the child’s injuries. A “superseding cause” is a subsequent act of negligence by another person or entity which supersedes the negligent act of the first person. See Adams v. Rhodia, Inc., 07-2110 (La.05/21/08), 983 So.2d 798 .
In this case, the act of the nurse in not immediately informing Dr. Ziegler of the stress shown on the monitoring strips was the last negligent act and thus, could be claimed to be a “superseding cause” of the child’s injuries. Because Dr. Ziegler’s negligence had not ended, however, I would not label the nurse’s failure to inform Dr. Ziegler as a superseding cause. I would note that the viability of the concept of superseding negligence relieving the first actor of any liability is itself questionable in a comparative fault system.
It was for the jury to apportion fault. I believe the majority has substituted its opinion for that of the jury and would affirm the jury’s reasonable apportionment of fault. Frankly, the defendant’s witnesses were |2impeached while the jury found Dr. Ziegler credible. As to Dr. Ziegler’s settlement, it was defendant’s attorney who first brought this issue into the case.
Although the majority’s reapportionment of fault will not reduce defendant’s payment of the damage award, it will affect the continuing medical care obligation. Thus, I would affirm the jury’s apportionment of fault.
APPLICATION FOR REHEARING
Before BROWN, STEWART, CARAWAY, & PEATROSS & DREW, JJ.
Rehearing denied.