Child's cerebral palsy is ascribed to decision against cesarean delivery

May 1, 2012

Looking at the legal issues surrounding cerebral palsy, bowel complications, fistulas, hysterectomy, and cesarean delivery for large infants.

At 8 months she began to show signs of developmental delay; cerebral palsy (CP) was subsequently diagnosed. The child has used a wheelchair since she was 2 and does not have normal use of her limbs. She has been diagnosed with spastic quadriplegia with mild mental retardation. Although she graduated from high school and attends outpatient programs, she is dependent on caregivers for hygiene and feeding.

Her mother recently decided to sue the residents responsible for her care during labor and delivery, alleging that had a cesarean delivery been performed, it would have prevented her child's brain injury.

The defendant physicians claimed that there were no circumstances during the labor to warrant an emergency cesarean delivery. They argued that the infant had exhibited no signs of encephalopathy-hypoxic, ischemic, or other-immediately after delivery or before her discharge home that would indicate an event proximate to labor and delivery as the cause of her CP. Instead, they suggested it could be attributed to metabolic or genetic causes.

This lawsuit was brought so many years after the actual delivery occurred that the electronic FHR monitoring strips were unavailable. Loss of medical record evidence makes a case very difficult to defend. Although the plaintiff cannot point to the FHR strip to show that emergency delivery was required at a particular time, the jury hears the patient's claims first, making the claims of the defense seem self-serving and casting suspicion over the loss of the FHR strip.

The physicians here claimed they had no control over the medical records, and the length of time between the delivery and the alleged malpractice made it unlikely the strips would be found. Despite these claims, the judge gave the jury an adverse inference instruction regarding the FHR record; however, the jury returned with a verdict for the defense.

Use of antibiotics during pregnancy blamed for bowel complications

IN 2004, A 30-YEAR-OLD FLORIDA WOMAN who was 34 weeks pregnant was prescribed Augmentin for a cough and sore throat. She then developed diarrhea, which did not improve with anti-diarrheal medication and a change in diet. She was then given empiric Septra for infectious diarrhea and was referred to an infectious disease specialist. Stool cultures for ova and parasites were ordered, and the infectious disease specialist prescribed cefpodoxime empirically for infectious diarrhea.

More stool cultures were ordered, including testing for Clostridium difficile. Before the culture results were received the patient went into labor and a repeat cesarean delivery was performed. She then progressed to a fulminant course of C difficile pseudomembranous colitis and required a total colectomy. Reanastomosis was accomplished 1 year later. The woman claimed that she was unable to control her bowel movements and continued to experience abdominal pain, frequent dehydration, and weight loss.

She sued those involved with her care, claiming that the Augmentin should not have been prescribed without a culture to establish that she had a bacterial infection and that empiric antibiotic treatment during pregnancy was contraindicated. She also maintained that C difficile diarrhea should have been suspected and treated when she developed diarrhea after taking Augmentin, and that the use of Septra was inappropriate. In addition, she contended that the group's practice model of rotating care of pregnant patients among the obstetricians impeded continuity of care.

The defendant physicians claimed that their practice model was appropriate and that continuity of care had been maintained. They argued that they acted appropriately in prescribing Augmentin and Septra, and that C difficile was not a reasonable diagnosis to make at the time because it was not known to arise in young, healthy persons who had not been hospitalized. A defense verdict was returned.