The plaintiff alleged that given the fetal size and weight, earlier caesarean delivery was warranted and that improper management of shoulder dystocia and compound presentation of the posterior arm resulted in right Erb’s palsy, scapular winging, and decreased movement and function of the right extremity.
Pediatric records from March 2014 confirmed that the child had decreased motion of the shoulder and elbow of the right arm as well as weak grip strength. The plaintiff said that during the delivery, an unidentified female doctor pulled on the baby while a second healthcare worker placed her hand under her breast, at the top of her stomach, and pushed down at the same time. She doesn’t remember how long this went on, but remembers being told that the child was stuck and that the doctor was pulling “very very hard.” The witness testified she did not recall being moved or rotated in any way. After the child was “pulled out” she recalled being told that the arms were not working well and the child was immediately whisked away.
Despite strong testimony from the delivering doctor, Dr A, Dr B, who assisted in the delivery, was easily rattled, and gave some poor testimony, in essence contradicting Dr A and indicating that the head was out of the vagina for a minute prior to delivery. She also called into question Dr A’s assertion of a compound presentation. She confirmed, however, that fundal pressure was not used. Dr B also asserted that artificial rupture of membranes could precipitate transverse lie, a statement our expert could not support.
The most significant aspect of this case for our expert was the fact that it was a compound presentation. She explained that a predelivery ultrasound would not have indicated the compound presentation. She indicated that once the child begins to descend, the extremity could come alongside the fetal head. Thus the plaintiff’s claim regarding the inappropriate use of oxytocin is negated because the situation does not present itself until the baby’s descent.
To refute any claims regarding an inadequate pelvis, the expert pointed out that the head delivered and the rest of the body delivered within a minute. Thus there was no “hanging up” of the baby. The expert also pointed out that because this was a big patient with a significant amount of soft tissue, there was still some pliability. The expert also pointed out that an episiotomy would have been inappropriate.
The expert was satisfied with the documentation and choice of maneuvers. The expert also indicated that the witnesses should be clear regarding the issue of applying suprapubic pressure as opposed to fundal pressure. Due to the mother’s body habitus they had to move her pannus out of the way, which could also lead the mother to misinterpret exactly where the hands were placed.
The expert indicated that the estimated fetal weight was 8 lb, 8 oz, which would be small enough to get through this adequate pelvis. The fact that the child was ultimately 4135 grams still did not concern her as this was still a small-enough baby to be delivered vaginally.
However, the expert believed that the nurse-midwife’s care prior to the delivery was problematic. Specifically, the nurse-midwife either started the delivery or was present for the delivery of the head. During that time, it is more likely than not that some traction was placed on the head, bringing about the injury. The reason was based upon the compound presentation followed by the quick delivery by Dr A. There was no real opportunity for Dr A to cause the injury.
Permanent brachial plexus injury cases are generally difficult to defend as they invariably involve assertions of excessive traction as the motivating force behind unresolved nerve injury. Here, where we encountered the additional hurdle of questionable timing of delivery after presentation of the fetal head, along with hesitant, contradictory testimony from the resident as to the presentation encountered, maneuvers applied, and the timing of events at issue, we decided to resolve the case prior to trial rather than risk it being priced by a jury.