The maternal-fetal medicine (MFM) expert initially opined that the mother’s complaint of decreased fetal movement as well as the lack of change in fundal height since her last visit on September 23, 2010, would have prompted 95% of physicians to send her for a non-stress test on October 10. However, he felt that the documentation was unclear as to whether the reported decreased fetal movement represented a radical decrease in movement or simply a decrease in movement. The MFM indicated that he would not have sent the mother for a NST if she reported a minimal kick count versus if there was a radically different level of activity. If the latter, the doctor would have referred the mother for further evaluation that day.
The neonatology expert disagreed with the MFM and opined that the mother’s complaints of decreased fetal movement warranted an immediate BPP and it was a departure not to perform one on October 10. Both the MFM and the neonatology expert believed that there were no issues with management of the mother after her presentation on October 11, and felt that there was no evidence to have warranted an emergent delivery. Our neonatology expert believed that the infant’s injuries may have been the result of both hypoxic-ischemic encephalopathy (HIE) and fetal thrombotic vasculopathy (FTV). However, the expert also believed the infant was timely delivered. He believed that during the prenatal period,a chronic or acute event—or both— caused the infant’s injuries, but he could not conclusively state when the event(s) occurred. Based on the scans and the pathology, our neonatology expert believed that this infant suffered from both HIE and FTV, which resulted in the alleged injuries.
The mother testified that she told the doctor that she was worried after not feeling the baby. Upon further questioning, she testified that she specifically told the doctor that she felt the baby “less than the night before.” The doctor told her that the lack of movement was normal, but given her concern, he referred her for an ultrasound within 5 days. The woman proceeded to defendant hospital the following day and was not feeling her baby when she arrived there. The resident who sent the patient home on October 10 was only 3 months into her residency and did not document the extensive conversation regarding fetal movement she claimed occurred.
While the patient’s attorneys demanded $15 million for settlement of the matter, defendant hospital ultimately settled the case for $3.4 million at mediation.
It goes without saying that “brain-damaged” infant cases portend significant exposure for those involved in the claims. Here, given that we had a disagreement among our experts about the cause of the infant’s injuries, whether they resulted from deviations in standards of care, and also faced a credibility battle between a credible, sympathetic mother and a resident only 3 months into her training, the decision was made to attempt mediation in the hopes of arriving at a pretrial resolution. Due to the exposure in the case for the physicians as well as the defensible aspects of the care rendered, the plaintiff would have had significant hurdles. For these reasons, an acceptable resolution was ultimately reached.