Conflicting testimony, poor documentation sink high-risk delivery defense

September 1, 2010

A plaintiff in one case alleged that the defendants were negligent by failing to monitor fetal growth and appropriately estimate fetal weight and position; failing to perform a caesarean delivery and prevent birth trauma during labor and delivery; failing to recognize the signs and symptoms of fetal distress; and negligently using oxytocin in the presence of fetal distress.


A fetal heart rate (FHR) was present on the patient's December 23 office visit. Fundal height was 30 cm, and there was trace protein in her urine but no sugar. Her blood pressure was normal. A subsequent 1-hour glucose screen in January was slightly elevated at 167 mg/dL. A 3-hour glucose tolerance test was negative but revealed a slightly abnormal glucose level at the third hour. Prenatal visits from January to March were unremarkable.

On March 14, she had a reactive nonstress test, and a bedside ultrasound demonstrated an estimated fetal weight of 3,853 g. She was scheduled to return for follow-up on March 16, when she was seen at an estimated gestational age of 41.5 weeks. She complained of mild cramping, but her blood pressure was normal, and the FHR was 124 bpm. The plan was to continue management, and she was directed to return to the clinic in a week.

She presented to the obstetric emergency area the next day with complaints of vaginal bleeding but denied spontaneous rupture of membranes. She was in early labor and was instructed to ambulate for 2 to 3 hours.

The patient returned that afternoon, at which time she was 2 cm dilated, but she denied spontaneous rupture of membranes. However, prolonged rupture of membranes and a positive nitrazine test were documented in the admitting note. The resident's note indicated a "possible" spontaneous rupture of membranes for more than 48 hours.

An ultrasound estimated that fetal weight was between 4,000 g and 4,200 g. Using Leopold maneuvers, fetal weight was estimated at 3,800 g. Defendant attending "A" saw the patient at 5:45 PM, and his plan was to admit the patient to labor and delivery, begin oxytocin to augment her contractions, and monitor the labor progress. She was given penicillin prophylaxis because of the discrepancy about whether prolonged rupture of membranes had occurred.

Over the next few hours, the patient's cervix dilated 1 cm. Artificial rupture of membranes was documented, with clear amniotic fluid, and an internal fetal monitor lead was placed. At 6:20 AM, a nurse midwife documented an "arrest of labor."

At 8:54 AM, the patient was taken to the delivery room, and the baby was delivered vaginally at 9:17 AM. The delivery room record reflects hypertonia and positive pressure ventilation with oral and nasal suctioning. Pediatrics was present at the delivery.

Attending A documented a "slight degree of difficulty" encountered in delivering the shoulders. The labor and delivery record reflects that attending A turned the case over to nonparty attending "B" in labor and delivery and indicates "vacuum extraction." Although "vacuum extraction" was crossed out by nursing, this documentation was carried forward in subsequent notes by the pediatricians. Attending A's note reflects that the McRoberts maneuver and suprapubic pressure were applied and that the infant was delivered with Apgars of 71 and 75. No arterial cord gas was obtained. The neonatal admission record documents a cephalohematoma, nasal flaring, crepitus to the right shoulder, hypertonia, and tremors. The infant was diagnosed with a fracture of the midright clavicular shaft.

On March 19, pediatricians were called to see the infant, secondary to tachypnea and possible seizures. Within 5 minutes of the evaluation, the infant turned purple and became stiff, apneic, and bradycardic, with a heart rate of 100 bpm. The infant was taken to the special-care nursery, where he was given positive pressure ventilation and chest compressions, and he began to cry. This episode lasted approximately 1.5 minutes and resulted in return of color and an increase of the heart rate above 100 bpm. However, the attending pediatrician documented bradycardia to 60 bpm, with visible cyanosis and arm stiffening. A computed tomography scan ruled out brain bleeding and edema. Neurology was consulted, and treatment with phenobarbital commenced. The infant was discharged on March 22.

Follow-up care for the infant occurred at an early intervention center. At 9 months of age, there was concern that he had cognitive delays, and he received special instruction and speech therapy. Physical and occupational therapy were discontinued when the infant turned 2 years old, and all services were discontinued when the boy reached the age of 3.5 years. Although the plaintiff was directed to seek further therapy for the infant, she did not. In March 2007, the boy's pediatric neurologist confirmed that he had reached most developmental milestones appropriately.