SUMMARY: Bench trial held on allocation of fault between defendants in a medical malpractice case. Defendants had reached settlement with plaintiff but could not agree on apportionment of fault between themselves. The court concluded that defendant the United States was ninety percent (90%) at fault for obstetrical care and defendant Grand Forks Clinic, Ltd., and Leslie Soine, M.D. were ten percent (10%) at fault for ultrasound report.

Case Name: Cecilia Brenot v. USA v. Grand Forks Clinic
Case Number: A2-97-8
Docket Number: 125
Date Filed: 12/30/99
Nature of Suit: 362

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHEASTERN DIVISION

MEMORANDUM AND ORDER FOR JUDGMENT

This action was tried to the court on October 18 through October 20, 1999. After considering the evidence presented at trial and the parties' post-trial briefs, the court makes the following findings of fact and conclusions of law.

I. Background

This trial was unique in that the case between the plaintiffs and the two defendants had settled prior to trial. The question that remains before the court is how to divide liability between the two defendants and accordingly determine how to apportion payment of the settlement amount on which the parties have agreed. The relevant facts in this case are as follows: In 1989, Cecilia Brenot and her husband Max were stationed at the Grand Forks Air Force Base (GFAFB). Cecilia is a petite Filipino woman who stands 4 feet 11 inches tall with a ususal weight of 112 lbs. Cecilia's husband Max is an Air Force enlistee. Max is Caucasian and stands approximately 6 feet 3 inches and weighs in excess of 200 lbs. The Brenots currently have four children. This case centers around the Brenots' third child, Alex, who was born at the GFAFB on December 6, 1989.

The Brenots' first child was born in the Philippines in 1987. That child was born at 37 weeks gestation and had a birth weight of 6.52 lbs, or 2960 grams. Their second child was born at the GFAFB in 1988. The second child was also born at the 37th week of gestation and had a birth weight of 6.37 lbs, or 2892 grams. Mrs. Brenot's medical records reflect that she suffered from gestational diabetes during her second pregnancy. Gestational diabetes is a condition which is known to result in fetuses of larger than normal size and weight, although this did not appear to be a result in Mrs. Brenot's second pregnancy. Mrs. Brenot's medical records further reflect that both deliveries were vaginal and without complications.

Mrs. Brenot suspected she was pregnant with her third child while she and her family were stationed at the GFAFB. She made an appointment at the GFAFB Hospital and was first examined regarding her pregnancy on July 11, 1989, by Captain Joyce Davis, a nurse midwife. During 1989 the GFAFB Hospital did not provide patients a continuum of care unless the patient requested it. A continuum of care means that the patient is seen by the same provider each time she has an appointment. Mrs. Brenot did not request a continuum of care; therefore the provider she had for each appointment depended on availability and scheduling.

Captain Davis noted at the first visit that Mrs. Brenot had a history of gestational diabetes and ordered a glucose tolerance test for the next week. Additionally, on that first prenatal visit, Captain Davis recorded in Mrs. Brenot's medical records a history stating that Mrs. Brenot's first two deliveries were normal, but that the second delivery required the use of a vacuum extraction. ⁽¹⁾ Captain Davis further indicated that based on an accurate last menstrual period (LMP) of February 23, 1989, Mrs. Brenot's estimated date of confinement was November 30, 1989. She was noted to be at twenty weeks gestation with a weight of 113 lbs and a fundus rating of U. An ultrasound was ordered to determine the age of the fetus and was performed on July 23, 1989. ⁽²⁾

In 1989 the GFAFB had a contract in effect with the Grand Forks Clinic, Ltd. (GFC) for radiological services because, at that time, the GFAFB did not have a radiologist on the base.⁽³⁾ The July ultrasound was read by Dr. Richard Blank, a radiologist at the GFC. Based on his interpretation, Dr. Blank estimated that the gestational age of the fetus was 20.2 weeks and the estimated fetal weight was 370 grams. (Gov. Ex. #9.)

For unknown reasons, Mrs. Brenot canceled her next two prenatal appointments at the GFAFB on August 17 and August 21, 1989, respectively. On August 23, 1989, Mrs. Brenot met with Captain Miller, an OB-GYN physician, for her second prenatal visit. At this visit Mrs. Brenot was noted to be at 26 weeks gestation with a weight of 127 lbs and a fundus of 26. ⁽⁴⁾ Mrs. Brenot met with Captain Davis again for her next three prenatal visits. The first of these next three visits occurred on September 18, 1989. The record of this visit states that Mrs. Brenot was at 29+ weeks of gestation, 133 ½ lbs, and a fundus of 29. Further, Mrs. Brenot received her third glucose test for gestational diabetes that day and tested negative. In fact at no point throughout Mrs. Brenot's third pregnancy did she ever test positive for gestational diabetes.

The next prenatal visit occurred on October 12, 1989. Captain Davis recorded that Mrs. Brenot was at 33+ weeks of gestation, a weight of 138 3/4 lbs, and a fundus of 34. It was at this visit that Captain Davis noted in Mrs. Brenot's records that her size was greater than dates. ⁽⁵⁾ Mrs. Brenot's fifth prenatal visit occurred on October 24, 1989. At this point, Captain Davis ordered a second ultrasound for Mrs. Brenot and noted that her weeks of gestation were 34+, her weight was 141 lbs, and her fundus was 36.

Dr. Leslie Soine of the GFC read the second ultrasound film and submitted a report to the GFAFB on October 30, 1989. (Gov. Ex. #11.) No direct evidence was presented at trial or in any of the exhibits that established why Captain Davis ordered the second ultrasound. The form Captain Davis completed to order the ultrasound is not available in either the GFAFB of GFC records. Captain Davis testified that it was unusual for her to order a second ultrasound, but since this occurred ten years ago and there is no record of the order she can not recall with certainty her purpose for ordering the ultrasound. She thinks it was probably to get an estimated fetal weight. Dr. Soine testified that she did not recall the purpose of the ultrasound either but can only assume based on the notation at the beginning of her ultrasound report that the purpose was to estimate the fetal age. ⁽⁶⁾

Dr. Soine's report was one page long and contained two parts. The first part of the report, which would be considered the main body of the report, was one paragraph. The second portion of the report was the impression and in essence summarized the main body of the report. The impression section consisted of a list of seven items, the most important of these for purposes of this case being item number five, which is the statement that the "[e]stimated fetal weight [is] currently 3400 grams which is appropriate for dates." (Gov. Ex. #11.) When Captain Davis received the report from the GFC, she only read the impression portion of the report and then made a notation in Mrs. Brenot's prenatal record that the ultrasound was within normal limits.

Mrs. Brenot met with Captain Davis one more time on November 20, 1989, for her seventh prenatal visit. The prenatal record of this visit indicates that Mrs. Brenot was at 38+ weeks gestation, a weight of 145 3/4, and a fundus of 40. No other problems were noted except that the patient was suffering from backache. The record further indicated that Mrs. Brenot was to return to the clinic in one week.

At her eighth prenatal visit on November 27, 1989, Mrs. Brenot met with Captain Miller for the second time. Captain Miller indicated in the medical record that Mrs. Brenot was at 39+ weeks gestation, a weight of 146 3/4, and a fundus of 41. The other notable event that occurred during this visit was that Captain Miller estimated that the weight of the fetus at that time was 8 ½ lbs to 9 lbs; however, Captain Miller did not make a notation of her estimate in the prenatal record.

According to Mrs. Brenot's medical record, she was scheduled for one more prenatal visit on December 4 or 5 but did not show up for that appointment. Mrs. Brenot was admitted to the GFAFB Hospital for labor and delivery on December 6, 1989. The record reflects that this process began at 1:00 a.m. Captain Davis attended to her labor and through the use of the Leopold Hold estimated the fetal weight to be approximately 8 ½ lbs. ⁽⁷⁾ It was Captain Davis's belief that Mrs. Brenot would be capable of delivering an 8 ½ lb baby. An external fetal monitor was attached and Mrs. Brenot was allowed to proceed with a trial of labor. ⁽⁸⁾

Mrs. Brenot was transferred to the delivery room at 2:10 p.m. via labor bed and was placed in the lithomy position. At this point the baby's head was crowning and Mrs. Brenot was encouraged to push. At 2:15 p.m. the baby's head was delivered, revealing a face with large cheeks and a molded head. Captain Davis then attempted without success to deliver the anterior shoulder of the baby by exerting steady downward pressure. She then placed Mrs. Brenot in the McRoberts position but had no success with that maneuver either. Within one minute of delivery of the head, Captain Davis called for Captain Miller stat and Captain Miller arrived in the delivery room within two minutes of being called.

Captain Miller reduced a loose nuchal cord over the head of the baby. Next, while Mrs. Brenot maintained the McRoberts position, Captain Miller applied subprapubic pressure without success. She then made a large episiotomy and attempted the corkscrew maneuver for several minutes without success. She put pediatrics on notice to be ready for the resuscitation of the infant. At this time the posterior arm was delivered but the anterior shoulder would not deliver.

Dr. Miller called for anesthesia, which apparently took several minutes to arrive and set up. Although the anesthesia record begins at 2:10 p.m., five minutes before the baby's head was delivered, Dr. Miller testified this does not mean anesthesia was present in the delivery room that early. The first notation of time on the anesthesia record generally indicates when the patient arrived in the delivery room, not when anesthesia arrived. Dr. Miller specifically recalls that the nurse anesthetist was not present in the delivery room when she arrived.

Anesthesia was administered at 2:30 p.m., fifteen minutes after delivery of the baby's head. The body of the baby was delivered at 2:32 p.m., and he was immediately turned over to pediatrics and intubated. Dr. Kube, a GFAFB pediatric physician began CPR on the infant. Because of the emergency, the infant was not weighed, but his weight was estimated at 13 lbs. The infant's APGAR scores at 1, 5, and 10 minutes were 0. After several hours he was stabilized and was transferred to United Hospital in Grand Forks, North Dakota. It was determined that the infant, Alex Brenot, had suffered from hypoxia, a condition in which oxygen to the brain is greatly reduced, for nearly seventeen minutes during his delivery.

Alex Brenot is now a ten year old boy who suffers from cerebral palsy, seizures, and cognitive and neurological difficulties. He attends a school for special needs children for part of the day and is mainstreamed into a regular public school for the other part of the day. He undergoes physical, occupational, and speech therapy. Alex's parents believe that he will continue to need special care into the future. At this time neither Alex's parents nor the professionals who work with him know what the future holds for Alex in terms of his ability to function independently.

II. Findings of Fact and Conclusions of Law

Since this case has settled between the plaintiffs and the two defendants, the question before the court is the allocation of liability between defendants and how payment of the settlement should be apportioned. At issue is the determination of which defendant bears responsibility for the problems that occurred during the birth of Alex Brenot and the resulting complications that Alex has suffered.

A. The Grand Forks Clinic, Ltd., and Dr. Leslie Soine

The United States argues that Dr. Soine's interpretation of the ultrasound film and preparation of the ultrasound report fell below the standard of care expected of a radiologist in 1989. It argues that had Dr. Soine properly read and interpreted the ultrasound, Dr. Soine would have determined that the fetus was "macrosomic" ⁽⁹⁾ and/or "large for gestational age (LGA)," ⁽¹⁰⁾ and had a duty to so inform Mrs. Brenot's medical providers. The United States claims that had the GFAFB medical personnel been adequately informed of the fetus's size, they could have taken additional measures to avoid complications at delivery. The court agrees that Dr. Soine's report was not as clear or as informative as it should have been and therefore fell below the standard of care.

In 1989 a radiologist submitting a written report interpreting an ultrasound could assume the clinician would read the entire report but had a duty to present reasonably accurate information in a reasonably clear format. Specifically, a radiologist had a duty, without regard to the reason for the ultrasound, to report to the clinician an estimated fetal weight and if measurements indicated, that a fetus appeared to be LGA or macrosomic.

Although there is little evidence to show whether the October 1989 ultrasound film was taken by a GFAFB technician or a GFC technician, it appears it was probably done at GFAFB. Ultimately it does not matter because Dr. Soine as the interpreting radiologist assumed responsibility by accepting the quality of the film and the accuracy of the technician's marker placements. The court finds no negligence in her doing so. In making biparietal diameter, head circumference, femur length and abdominal circumference measurements based on those maker placements, Dr. Soine undermeasured at least the abdominal circumference and consequently underestimated fetal weight. Some expert testimony indicated her measurements were a departure from the standard of care; other expert testimony indicated her measurements were within the standard of care. The court finds that Dr. Soine's measurements were not a breach of the standard of care.

There is some dispute over the reason Captain Davis ordered the second ultrasound. Captain Davis can not remember for certain why she ordered the second ultrasound and admits that it was unusual for her to order a second one. She suspects that the reason she ordered it was to get an estimated fetal weight because Mrs. Brenot's fundal measurements indicated that her size was greater than dates. (Def. Ex. #122, p. 2.) Alternatively, Dr. Soine testified that she can not remember why the ultrasound was ordered either, but believes that it was to estimate fetal age, although she admits a third trimester ultrasound is not generally performed to determine fetal age. Dr. Soine bases her belief on the opening notation of her report. She testified that it is her regular standard of practice to repeat verbatim the reason stated in the ultrasound request form at the top of her report. In this instance, the first line of Dr. Soine's report states, "Clinical information states gestational aging." (Gov. Ex. 11.) However, there is no record of the original order; therefore, the court can not conclude with certainty that the second ultrasound was requested for the purpose of determining gestational age or fetal weight. Based on the record as a whole, the court finds that it is most likely that Captain Davis intended to ask for fetal weight in light of gestational age but noted only a request for gestational age. This issue has little significance, however, because the issue at hand is the clarity of the report regardless of the reason it was ordered.

According to the expert testimony, determination of gestational age is most accurate at the 16th to 20th week. The first ultrasound read by Dr. Blank on July 23, 1989, had established that the gestational age was 20.2 weeks at that point in time; therefore, according to the expert testimony, that dating was the most accurate reflection of the fetus's gestational age. The second ultrasound was done 14 weeks later on October 30, 1989; Dr. Soine noted at the beginning of her report that she was utilizing the prior ultrasound for comparison purposes. She also noted that "this should be a 35.6 week fetus" based on LMP. (Gov. Ex. #11.) After reciting fetal measurements, Dr. Soine indicated in the body of her report that her "best estimate of fetal age is 37.4 weeks." Dr. Soine testified that she did not think 37.4 weeks was the true gestational age, but rather an "ultrasound" age based on the average of the measurements she made. She agreed in her testimony that the actual gestational age was 35.6 weeks and admitted that it is unusual to change the gestational age once it is determined.

Based on the "ultrasound" age of 37.4 weeks and her estimated fetal weight of 3400 grams, Dr. Soine calculated from growth charts that the fetus was in the 86th percentile. Because the fetal size was lower than the 90th percentile, Dr. Soine did not consider the fetus LGA and made no mention of LGA in the report. In fact, she stated in the impression section of the report that her estimated fetal weight was "appropriate for dates." The report does not indicate which date she was using to compare with weight, but she was referring to the 37.4 weeks "ultrasound" age rather than the 35.6 weeks actual gestational age.

Had Dr. Soine calculated growth chart percentile based on the actual 35.6 weeks gestational age, the fetus would have charted at the 97th percentile, well above the LGA line at the 90th percentile. Based on actual gestational age, the fetus was LGA and there was a duty to report that fact to the GFAFB. Not only did Dr. Soine's report fail to include that information, it was misleading in stating without further clarification that the estimated fetal weight was "appropriate for dates." In this respect, the court finds Dr. Soine breached the applicable standard of care.

Despite these deficiencies, the court finds that Dr. Soine's report did not play a substantial role in the complications that arose in the delivery of Alex Brenot. For one thing, the expert witnesses agreed that an ultrasound is only one factor in determining fetal size and the approach to managing delivery. The ultrasound report is used in the clinical context along with all other available information to decide how to best manage the case. In addition, Captain Davis admittedly failed to read the main body of the report until after Alex's birth. Although the impressions section of the report, which Captain Davis had read, was misleading in its statement that fetal weight was appropriate for dates, Captain Davis admitted that some of the measurements set out in the main body of the report were "ominous" and had she read them prior to the delivery, she would have consulted an obstetrician.

These factors minimize the role the deficiencies in Dr. Soine's report played in causing the problems with the delivery of Alex and his resulting injuries but they do not eliminate proximate causation. The court finds that Dr. Soine's negligence was a proximate cause of Alex Brenot's injuries.

The Grand Forks Clinic, Ltd. argues that the United States is liable because it failed to properly evaluate Mrs. Brenot's pregnancy and to develop and follow an obstetrical plan that was adequate to meet her needs. The GFC alleges several respects in which the medical care provided to Mrs. Brenot by the GFAFB failed to meet the standard of care, the first of which involves the prenatal care Mrs. Brenot received from Captain Davis.

Captain Davis was an Air Force nurse midwife stationed at GFAFB in 1989. The expert testimony indicated that a nurse midwife in 1989 was held to the same standard of care as an OB-GYN. Along with that standard came the expectation that a nurse midwife would consult with an OB-GYN when presented with a high risk pregnancy or other situation beyond her training and skill.

Captain Davis's first deficiency occurred when she ordered a second ultrasound for Mrs. Brenot on October 30, 1989, and then failed to read the entire ultrasound report. The experts agreed that it was below the standard of care for the individual who ordered an ultrasound to fail to read the report in its entirety. Captain Davis testified that it was her regular practice to read the entire report, yet for some reason she failed to do so in this case. Captain Davis further testified that had she read the report in its entirety, she would have found some of the information contained in the report "ominous" and would have sought out a consult with an OB-GYN. This fact indicates to the court that although Dr. Soine's report was not as clear or as complete as it should have been, it did contain enough information to put the reader of the report on notice that there may be reason for concern.

Captain Davis also fell below the standard of care in her inability to read and understand the information contained in the ultrasound report. Captain Davis testified that she did not know how to make the conversion in weight measurements from grams, which is the standard measurement used in ultrasound reports, to pounds. Had Captain Davis been able to make that calculation, she would have realized that this fetus was already at 7 ½ lbs, one whole pound heavier than Mrs. Brenot's first two babies at the time of delivery, and this fetus still had four to five weeks of growth before reaching the estimated date of confinement. The experts testified that in the last weeks of pregnancy the fetus can gain ½ lb per week or more. If Captain Davis had known (or consulted a metric conversion chart to determine) that 3400 grams translated to approximately 7 ½ lbs, she would have been able to estimate that in four or five weeks the fetus could weigh as much as 10 or more lbs.

The second area in which the GFC claims the GFAFB fell below the standard of care is in Captain Miller's handling of Mrs. Brenot's eighth prenatal visit on November 27, 1989. At that time Captain Miller estimated the fetal weight to be between 8 ½ and 9 lbs; however, she failed to record her estimate anywhere in Mrs. Brenot's records. The prenatal record was thus incomplete in an essential respect and as a result each prenatal care provider was operating without all of the information necessary to develop an appropriate obstetrical plan for Mrs. Brenot. In 1989 the GFAFB Hospital did not offer its obstetrical patients a continum of care unless the patient requested it. In this case Mrs. Brenot did not request of continum of care, so the medical provider she got on each of her prenatal visits varied depending on availability and scheduling. Because of the lack of a continum of care, each provider who saw Mrs. Brenot had a duty to be familiar with her entire prenatal chart and in turn write thorough and complete notes of her prenatal visit in Mrs. Brenot's prenatal record. In this instance the necessary familiarization with the records and adequate recording did not take place.

Captain Miller testified that she would look back in the prenatal record only to the last visit prior to her appointment with Mrs. Brenot. This failure to review Mrs. Brenot's entire prenatal record caused Captain Miller to overlook the significance of the second ultrasound report. Captain Miller knew that it was uncommon for a second ultrasound to be ordered, particularly in the third trimester; yet she claimed she wasn't suspicious about the reason it was ordered because the notation in the prenatal record by Captain Davis indicated that the ultrasound was within normal limits. Apparently that notation was enough for Captain Miller; she never inquired as to the reason behind the second ultrasound, nor did she read Dr. Soine's report. Had Captain Miller looked farther back in the record she would have seen that Captain Davis had noted that Mrs. Brenot's fundal measurements were larger than dates starting in early October. Captain Miller's own notes reflect a fundal measurement that is greater than dates; yet at no time did any of Mrs. Brenot's GFAFB care providers consult each other regarding Mrs. Brenot's obstetrical plan.

When Mrs. Brenot went into labor on December 6, 1989, she was first evaluated by Captain Davis, who through the use of the Leopold Hold estimated the fetal weight to be approximately 8 ½ lbs. Captain Davis was not aware of Captain Miller's estimate of fetal weight of 8 ½ to 9 lbs nine days earlier because it was not entered into the prenatal medical record. Had Captain Davis been aware of Captain Miller's estimate of fetal weight nine days before the delivery of Alex, she may have been able to more accurately assess the fetal weight at the time of labor and delivery, or at the least would have been on notice that the baby may be close to 10 pounds at the time of delivery. A ten pound baby is macrosomic, and according to the expert testimony, a macrosomic delivery is high risk, requiring a midwife to secure involvement of an obstetrician. Since there were or should have been indications in Mrs. Brenot's prenatal record that this would be a high risk delivery, GFAFB should have had an obstetrician rather than a midwife manage Mrs. Brenot's labor and delivery.

The final area in which the GFC contends that GFAFB fell below the standard of care is the management of Mrs. Brenot's labor and delivery. Mrs. Brenot is a woman of small stature, 4 feet 11 inches with a usual weight of 112 lbs. Common sense as well as the testimony of GFC's obstetrical expert, Dr. Dennis Lutz, indicated that a woman of her size carrying a 13 lb baby would have looked extremely pregnant. Although Mrs. Brenot must have looked was like she was going to have a big baby, and the estimated fetal weight in the second ultrasound coupled with five more weeks of fetal growth confirmed that this would be a large baby, Captain Davis attempted to deliver the baby vaginally without having an alternative emergency plan. Attempting a vaginal delivery was not below the standard of care according to the experts. The lapse came in failing to anticipate complications and in turn be prepared to deal with them in a timely fashion.

When the baby was prevented from being fully delivered due to shoulder dystocia, Captain Davis unsuccessfully attempted another maneuver and then called for Captain Miller stat. Captain Miller arrived in the delivery room within two minutes of being called. She then attempted several other techniques in an effort to deliver the baby. She called for pediatrics to stand by in order to resuscitate the infant. At this point Captain Miller unsuccessfully attempted several more maneuvers and called for anesthesia. It took several minutes after Captain Miller's call for the nurse anesthetist to arrive and complete set-up. Mrs. Brenot was not anesthetized for a full fifteen minutes following the delivery of Alex's head. This delay was critical. Had anesthesia been available and administered even a few minutes earlier, Alex Brenot may not have suffered any lasting effects from the hypoxia or at the very least his problems would have been minimized. After Mrs. Brenot was anesthetized the rest of Alex's body was delivered in two minutes without difficulty. GFAFB personnel fell below the standard of care in failing to administer anesthesia in a timely manner.

For the foregoing reasons the court finds the United States was negligent in attending to Cecilia Brenot's prenatal care and delivery, and its negligence was a proximate cause of the injuries suffered by Alex Brenot during the delivery.

C. Allocation of Fault

The court finds that Dr. Soine's negligence and the negligence of the GFAFB medical personnel each contributed to the injuries suffered by Alex Brenot. The court allocates ten percent (10 %) of the fault to Dr. Soine and her employer, Grand Forks Clinic, Ltd., and allocates ninety percent (90 %) of the fault to the United States. Therefore, the court concludes that Dr. Soine and the Grand Forks Clinic, Ltd. are liable to plaintiffs in the amount of 10 % of the settlement amount and the United States is liable to plaintiffs in the amount of 90 % of the settlement amount.

IT IS ORDERED that judgment be entered accordingly following approval of the settlement by the court.

Dated: December_____, 1999

1. Vacuum extraction is utilized when a complication in delivery requires that an external force be used to deliver the baby vaginally.

Mrs. Brenot did not require the use of a vacuum extraction in her second delivery but the notation is significant because even though the history was erroneous, the medical personnel at the GFAFB involved in the third pregnancy and delivery were proceeding on a record indicating that a vacuum extraction had been required for a baby weighing only 6.37 lbs.

2. An ultrasound or sonogram is a non-invasive diagnostic tool which allows a practitioner to see tissues internal to the body through the use of a sound wave machine which generates a picture showing various types of internal tissue formations.

3. In essence, the contract between the GFAFB and the GFC provided that a GFC radiologist would perform the professional services required for GFAFB "radiology patients such as to read, study, interpret, diagnose, and to perform special diagnostic . . . procedures." (Gov. Ex. 24, p. 2308.) The contract further required that "the contractor shall be solely liable for and expressly agree to indemnify the Government with respect to any liability-producing acts or omissions by it or by its employees or agents." (Gov. Ex. 24, p. 2333.)

4. The fundal (fundus) measurement is the distance between the expectant mother's pubic bone and the top of her uterus. Theoretically the fundal measurement and the gestational age should be equal throughout the pregnancy.

5. The October 12, 1989 prenatal visit indicated that Mrs. Brenot's fundus of 34 was larger than indicated weeks of gestation which were determined to be at 33+ weeks.

6. Dr. Soine testified that the beginning notation in the report is routinely taken verbatim from the form requesting the ultrasound.

7. The Leopold Hold is a method of estimating fetal weight in which the practitioner places his or her hands on the belly of the pregnant woman.

8. A trial of labor can be defined as an effort to allow a woman in labor to go through a normal course of labor followed by a vaginal delivery. All experts agreed that it was appropriate for Mrs. Brenot to attempt a trial of labor.

9. A macrosomic fetus is one weighing 4000 grams or more.

10. An LGA or large for gestational age fetus is one that falls at or above the 90th percentile on the growth chart.