Legally Speaking

A CP case that led to finger-pointing

A North Carolina woman 11 days past her due date presented to a hospital for labor induction. The obstetrician administered an induction agent and left the hospital. Twenty minutes later, the fetal heart rate dropped and the patient was having extended contractions. The obstetrician was notified but did not return to the hospital and was paged again 25 minutes later. He returned 1 hour after the first call and ordered an emergency C/S, during which a placental abruption was noted.

The infant was born unresponsive and unable to breathe without assistance and was diagnosed with cerebral palsy due to severe hypoxic brain injury. At the time of trial, the child was age 7 and unable to walk or talk.

The physician denied negligence and claimed that he would have responded to the emergency had he been apprised of the severity of the situation. The nurse claimed that she did properly describe the situation. The case was settled for a confidential sum.

Legal Perspective

This case illustrates one of the most damaging scenarios in malpractice defense. While the infant's injury may or may not have been caused by negligent care, the case revolved around the content of the phone call between the nurse and the physician. The physician blamed the nurse for not correctly relating the emergent situation and the nurse blamed the physician for not responding to the correct information she gave him. It's not unusual for defendants to point fingers at each other when there is miscommunication, which usually involves a phone call. Here, each party's recollections differed and there was no documentation of what actually was said. It's good practice to contemporaneously document the content of phone calls in the chart, including the information relayed, any requests for the physician to come in, and any orders from the physician.

Even when there is no miscommunication and a case is perfectly defensible, a plaintiff's attorney may try to create a "dueling defendant" scenario if he finds an undocumented phone call and can get one defendant to point the finger at the other in an attempt to get himself or herself "off the hook." And the call or conversation may have had nothing to do with the care or the claim of injury. Once this scenario starts, unfortunately, such cases usually settle, because defense attorneys do not want a jury to hear the defendants blaming each other. To a jury, pointing fingers means that someone must have been negligent.

Excessive traction with vacuum extractor alleged

After a difficult labor, a Connecticut woman delivered her first child, who weighed 9 lb, 4½ oz. During the procedure, which was done with a vacuum extractor, the obstetrician encountered a shoulder dystocia. The infant was diagnosed with a brachial plexus injury and her shoulder movement is severely limited.

The woman sued the obstetrician, claiming that during the vacuum extraction, the obstetrician placed her feet on the delivery room table for extra leverage and then forcefully pulled upward to deliver the infant. She alleged that this caused excessive traction and the resulting injury.

The physician claimed that the injury occurred in utero when the posterior shoulder got caught on the mother's spine. She also claimed that gentle maneuvers had been used in delivering the child. At age 4, the child required muscle surgery and continues to have left hand, wrist, arm, and shoulder weakness.

The jury returned a $1.7 million verdict, including $857,000 in economic damages and $500,000 in non-economic damages to the child, and $400,000 to the parents.