The Tenth Circuit Court of Appeals issued its opinion in Gallardo v. United States on Monday, May 19, 2014.
Ms. Gallardo brought suit against the United States under the Federal Tort Claims Act, alleging that the performance of her obstetrician, Dr. McCutcheon, fell below the standard of care during the delivery of her daughter, D.R.G., who was born with cerebral palsy.
In February 2007, Ms. Gallardo went to Memorial Hospital in Colorado Springs after complaining of reduced fetal movement and was evaluated with an electronic fetal monitor (EFM). Dr. McCutcheon, clinical director of the federally-operated Women’s Care Center at Peak Vista Community Health Center, admitted her and induced labor. The EFM readouts were used by Dr. McCutcheon to evaluate the health of the baby and determine continued course of treatment. These EFM readouts were “non-reassuring,” indicating potential fetal distress, but Ms. Gallardo ultimately delivered the baby vaginally. Ms. Gallardo asserted that Dr. McCutcheon’s actions during the labor and delivery fell below the applicable standard of care. She exhausted all administrative remedies against the Department of Health and Human Services and filed suit against the United States. The case was tried in the district court and ultimately decided in favor of the United States. Ms. Gallardo timely appealed to the Tenth Circuit on several points of error.
Ms. Gallardo asserted that the district court applied the wrong standard of care when determining that Dr. McCutcheon’s decisions were reasonable, and that the court disregarded the opinions of her two medical expert witnesses in finding for Dr. McCutcheon. However, the testimony of the four physicians described a widely variable standard of care for situations like Ms. Gallardo’s, and the district court not only relied on physician testimony but also relied heavily on guidelines issued by the American College of Obstetrics and Gynecology. Ms. Gallardo also asserted that the district court did not give enough significance to the EFM readouts, but for this claim too the district court relied on both expert testimony and the guidelines in forming its opinion.
Ms. Gallardo also argued that the district court failed to address the most significant criticisms of Dr. McCutcheon, but the record refutes her claims. Finally, Ms. Gallardo argued that the district court erred in allowing testimony regarding nomenclature adopted subsequent to D.R.G.’s birth. However, this testimony was not used in determining Dr. McCutcheon’s effectiveness, but rather to clarify language used by obstetricians regarding EFM strips.
The district court’s judgment was affirmed on all counts.