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June 7, 1983


From the Circuit Court of Cape Girardeau County; Civil Appeal; Judge A. J. Seier; Reversed and Remanded

Motion for Rehearing Overruled, Transfer Denied July 15, 1983.

Before Smith, P.j., Satz, Pudlowski, JJ.

The opinion of the court was delivered by: Satz

This is a medical malpractice case. Defendant Dr. Joseph N. Tygett, is a physician, board certified in obstetrics and gynecology. Plaintiffs are Glenna Grindstaff and her husband Doyle Grindstaff. Glenna Grindstaff was an obstetric patient of defendant. She was injured during defendant's delivery of her second child. Glenna sued defendant for negligently injuring her during the delivery and Doyle sued defendant for loss of consortium. A jury returned a verdict in favor of Glenna Grindstaff for $250,000 and a verdict in favor of Doyle Grindstaff for $25,000. *fn1 Defendant appeals. We reverse and remand for a new trial.

At 2:00 a.m. on the morning of March 13, 1978, plaintiff was admitted to the labor room at Southeast Missouri Hospital and found to be in active labor. According to the "Nurses Labor and Delivery Record," plaintiff's cervix was dilated 8 centimeters at that time. This dilation meant that plaintiff had not yet reached the second stage of labor. *fn2 At 2:00 a.m. she was reexamined and still found to be dilated only 8 centimeters. The next entry on the "Nurses Labor and Delivery Record" was at 2:35 a.m. when plaintiff had a "desire to push" and was taken to the delivery room. There is no notation in the "Nurses Labor and Delivery Record" indicating plaintiff ever reached the second stage of labor, i.e., complete or 10 centimeters dilation of the cervix.

According to defendant, he arrived at the hospital between 2:30 a.m. and 3:00 a.m. At that time, he observed that plaintiff was having extremely strong contractions of excellent quality, at two or three minute intervals. According to him, these strong contractions continued until 4:30 a.m. At that time, he determined that, although the baby was coming down the birth canal so that its head had reached the pelvis, the baby's head was not yet in the proper position for delivery. The baby's head was in the left "occiput traverse position." This means the baby was turned on its side with the back of the head towards the mother's left side. Defendant attempted a manual rotation of the child's head but was unsuccessful. At 4:46 a.m., he delivered the baby using a "midforceps rotation" delivery. In this procedure, forceps are used to rotate the baby's head to the proper position and then used to extract the baby. In the hospital delivery record, written and signed by defendant, the method of delivery was described as a "tight midforceps rotation." At a deposition taken on July 5, 1979, defendant described a tight midforceps rotation as being one in which he would have to apply excessive pressure to effect the procedure.

As a result of this forceps delivery, plaintiff sustained a vaginal laceration extending to the cervix and a complete severance of the urethra. Defendant repaired the main part of the vaginal laceration and called in Dr. Terry, a urologist, to repair the severed urethra. As a result of the injury, scar tissue formed and the functional length of plaintiff's urethra was shortened. This, in turn, caused plaintiff to suffer urinary stress incontinence, the involuntary loss of urine.

Defendant complains that plaintiffs' verdict directing instructions were prejudicially erroneous. The verdict directing instruction of plaintiff Glenna Grindstaff, an adaption of MAI 21.01, reads:

"Your verdict must be for the plaintiff Glenna Grindstaff if you believe:

First, defendant performed a midforceps rotation delivery when such procedure was not medically proper, and

Second, defendant was thereby negligent, and

Third, as a direct result of such negligence plaintiff Glenna Grindstaff sustained injuries." *fn3

Defendant complains the term "medically proper" is ambiguous, and, thus, gives the jury a "roving commission" to determine what this phrase means. More specifically, as we understand defendant's complaint, he argues (1) the phrase "medically proper" needed to be legally defined for the jury and (2) the instruction fails to hypothesize facts which made the midforceps rotation delivery not "medically proper." Plaintiffs counter that (1) "not medically proper" is a term of common usage which need not be defined and (2) the instruction includes the ultimate fact issue, namely whether it was medically proper for defendant to perform the midforceps rotation delivery and properly excludes evidentiary facts, such as whether the midforceps rotation delivery was accomplished by the use of excessive force or whether plaintiff Glenna Grindstaff ever entered the second stage of labor, the stage a midforceps rotation delivery is permitted.

We agree with defendant's second complaint. The phrase "not medically proper" does not submit the ultimate facts which define for the jury plaintiffs' specific theory of negligence. The MAI are designed to preclude the submission of detailed evidentiary facts and limit the submission only to issues of ultimate fact. Zipp v. Gasen's Drug Stores, Inc., 449 S.W.2d 612, 617 (Mo. 1970). An instruction authorizing a verdict, however, must require a finding of all ultimate facts necessary to sustain the verdict. Moore v. Quality Dairy Company, 425 S.W.2d 261, 266 (Mo. App. 1968); R Way Furniture Company v. Powers Interiors, Inc., 456 S.W.2d 632, 639 (Mo. App. 1970). "Admittedly, our courts have been unable to fashion precise, universally applicable definitions which explicitly differentiate evidentiary facts from ultimate facts and, thus, on a case by case basis, we determine 'what ...

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