Newsome v. Gunnels - Clinicians Win Medical Futility Case

A few weeks ago, the Alabama Supreme Court affirmed summary judgment in favor of a clinician in a medical futility dispute.  The parents of twins born at 22.5 weeks alleged that clinicians failed to undertake medical effort to save the babies or prevent their delivery.  



The court did not issue a written opinion.  But it appears that the plaintiffs attempted to assert only a claim for intentional infliction of emotional distress (often not a bad strategy in such cases).  The defendants argued that this was really a medical malpractice case, requiring expert evidence that the plaintiffs never supplied.  Indeed, it may have been difficult for plaintiffs to find an expert to testify that the babies were viable and could have survived despite their extreme prematurity.



Here is the statement of facts from the plaintiffs' opening appellate brief.



Expecting twin babies, the Plaintiffs, Burton and Regina Newsome, chose St. Vincent's Hospital for the delivery, and the OB/GYN practice, with which Defendant Jeffrey Gunnells is associated, as Regina Newsome's doctor.  Before the birth, however, the individual doctor, whom the parents had chosen, suffered a death in the family, and they were re-assigned to the Defendant.



Regina Newsome is from Uzbekistan and has a strong accent. Upon meeting her, the Defendant abruptly asked her what her religion was.  Although a practicing Christian, her first response was that she is “half-Muslim,” ethnically-speaking. The Defendant's immediate response was negative, and he would not treat her.  She was assigned to a third doctor within the practice who was willing to treat her. 



Not long afterward, when she was between 22 and 23 weeks pregnant, Mrs. Newsome began to leak amniotic fluid, and, although her regular doctor told her this was normal, three days later, she was rushed to the St. Vincent's emergency room--where the Defendant was the doctor on call. 



The Defendant told the parents that their babies were dead and that nothing could be done.  Despite Mrs. Newsome's request, he refused to call in the first doctor (who had since returned to practice after his family tragedy). After four hours of labor, in which the Defendant treated Mrs. Newsome disrespectfully and without regard for the dire nature of the events, the babies were born alive. 



Despite the fact that they were clearly alive, crying and responding, the Defendant failed or refused to provide any medical care to the twin babies. Plaintiff Regina Newsome had begged Dr. Gunnels to call in the Neonatologists prior to giving birth to try and save the babies. The babies were never cleaned up but, instead, left to die before their parents' eyes. For over four hours more, the babies cried, with no assistance from the Defendant, dying there in the room with their distraught and bewildered parents.