A plaintiff argues that doctors failed to assess fetal size through ultrasound. What was the final verdict?
Dr. A began managing an obese woman’s pregnancy in October 2006. He had previously managed the second of her 2 previous pregnancies, both of which were normal spontaneous vaginal deliveries (NSVDs). The second was an 8 lb 2 oz healthy baby that Dr. A delivered in April 2006. Notably, before her second pregnancy, the woman developed type 2 diabetes. A perinatal group assisted Dr. A with management of that gestation and there were no complications associated with it.
The estimated date of delivery for the woman’s third pregnancy was June 21, 2007. A November 2006 ultrasound (U/S) revealed a 7-week intrauterine gestation. Regular checkups in December and January were unremarkable. On February 12, Dr. A again examined the woman, who at 21 weeks was noncompliant with glucose monitoring. He referred her to a perinatal group for a Level II U/S and fetal echocardiogram, which were performed on February 16. The results of both were within normal limits for gestational age. The perinatal group agreed to assist in managing the patient’s pregnancy.
On March 27, the patient saw Dr. B, a perinatologist at the perinatal group. He documented that the patient had not been doing home glucose monitoring and that her postprandial blood glucose had been elevated. He recommended weekly nonstress tests (NSTs) and biophysical profiles (BPPs), increasing to twice weekly at 34 weeks. The NSTs and BPPs were to be done at Dr. A’s office. On April 4, at
29 weeks, the patient’s NST was nonreactive and her BPP normal.
On April 7, the patient returned to the perinatal group. She had started glyburide the week before, and in general her blood sugar levels had improved; her fasting blood glucose was between 70 and 90. Nonetheless, her postprandial glucose level still spiked to 250 because she had not changed her diet. At that point, the physicians were holding off prescribing insulin to avoid hypoglycemia. On April 11, the patient returned to Dr. A for prenatal care. Her NST was nonreactive and her BPP normal. Some sugar was present in her urine. She did not do a fasting glucose test.
On April 16, she returned to the perinatal group for a Level II U/S and fetal anatomic survey. The interpretation was that the fetus was large for gestational age (LGA). The pregnancy was at 30 weeks and 4 days, but the fetus was 33 weeks and 2 days by U/S, placing it at the 90th percentile. The perinatologist recommended that thereafter Dr. A perform weekly NSTs and BPPs and that the perinatal group repeat the U/S in 3 weeks.
The patient returned to Dr. A on April 18 at 31 weeks. Documentation from this appointment showed a positive fetal heart rate and fetal movement, but neither a NST nor a BPP was recorded. On April 21 the patient saw perinatologist Dr. C, who noted that she was having mild occasional elevations in her blood glucose during the day, with good control. She was, however, having significant postprandial elevations. He again discussed the possibility of using insulin and asked the patient to return in 1 week to discuss this. He also documented that follow-up with NSTs and BPPs should continue, and that the patient should return to the perinatal group for another U/S in
On April 26, the patient had a reactive NST and a normal BPP at Dr. A’s office. She did not bring her blood sugar chart, and Dr. A again discussed the risks of intrauterine demise if her glucose level was significantly elevated. She was told to return in 2 weeks for a NST and BPP (despite the earlier recommendation that at this stage she should be returning every week).
On April 28, the patient saw Dr. B at the perinatal group, who described the patient as an “uncontrolled” Class B diabetic. He documented that she should be receiving NSTs and BPPs twice a week at this stage and reiterated the need for a monthly fetal growth assessment U/S and maternal fetal medicine (MFM) consult in 2 weeks.
That consult took place with Dr. C on May 8. He documented consistently increased postprandial glucose levels and added another dose of glyburide following lunch daily. He supported weekly NSTs and “ultimately” wanted a repeat growth scan to check for macrosomia.
The last entry in the perinatal group records was on May 19 by Dr. B. The patient looked well and had been getting her weekly BPPs and NSTs. She was to return on June 5 for a MFM consult and an amniocentesis for fetal lung maturity. The perinatal group, however, documented that the patient did not keep that appointment.
Dr. A saw the patient for her final prenatal visit on June 6. The note has no mention of either the recommended repeat U/S that was never performed or the “missed” appointment with the perinatal group the day before. His prenatal flow sheet reflected that during the last trimester the patient’s fundal heights consistently exceeded gestational age with no documented recognition of this anomaly by Dr. A.
The patient began having contractions at approximately 3:30 AM on June 11, and arrived at the hospital at approximately 5 AM. Dr. A’s admission note estimated the fetal weight at 9 lb based on a manual exam rather than U/S. No episiotomy was performed, and the mother sustained a second-degree laceration during delivery. The labor itself was fairly quick, with artificial rupture of membranes at 5:25 AM and delivery at 5:46 AM. Dr. A’s delivery note reads as follows:
“Patient FO/VTX/O at 5:40 AM. Increased discomfort with contractions. Delivery viable female left occipital transverse at 5:46 AM, naso-oropharynx suctioned. McRoberts position used. Attempt to deliver anterior shoulder with suprapubic pressure unsuccessful. Baby rotated posterior shoulder delivered followed by anterior shoulder. No unusual force, traction used for delivery. Neonatologist present. 2nd degree laceration midline repaired with
3-0 chromic suture.”
The infant weighed 10 lb 13 oz at birth. Apgar scores were 8 and 9, but the records indicate that she was lightly meconium stained and not crying or spontaneously breathing at birth. The infant’s initial arterial blood gas was 7.15. Oxygen was given using a bag valve mask and the baby subsequently cried. Right arm weakness in the infant was fairly quickly appreciated. This was later documented as “Erb’s Palsy right arm.”
After delivery, the child received care primarily from pediatrics and pediatric neurology, but also from a state early intervention program and private physical therapy. Use of her right arm consistently improved, with the pediatrician noting “great improvement” by August. However her pediatric neurologist described “contracture deformity” and “significant residual weakness and decreased range of motion.”
The patient plaintiff claimed that Drs. A, B, and C jointly failed to ensure that a repeat fetal growth U/S to reassess fetal size was performed after April 2007. They also alleged that Dr. A failed to note that the patient’s fundal heights in the last trimester were in excess of her baby’s gestational age. They contended that had the defendants performed the repeat growth U/S they would have been aware of the LGA or macrosomic fetus and either counseled the patient on cesarean delivery or recommended early induction of labor (assuming fetal lung maturity). They argued that this would have avoided contraindicated vaginal delivery of a macrosomic infant in a known diabetic and averted shoulder dystocia and the resulting brachial plexus injury. They further contended that Dr. A used excessive force to maneuver the shoulder dystocia and this caused or contributed to the brachial plexus injury.
At deposition, the patient testified that she never missed appointments at the perinatal group and that when she arrived for her amniocentesis on June 5 she was told she “had no appointment.” She claimed that she told this to Dr. A on June 6 and that he told her “not to worry about it.” She insisted that she was never counseled by Dr. A about the possibility of an LGA fetus or macrosomic infant or about the option of cesarean delivery.
Dr. A testified that the fetal growth U/S was a Level II and that he does not perform them in his office. The perinatologists concurred that it was their intention to perform the repeat U/S at their facility but that it was not a Level II and could easily have been performed by Dr. A in his office if he so desired. The perinatal group produced office logs that reflected the patient had failed to show for a scheduled repeat U/S in May and on June 5. Dr. A contended that on
June 6 the patient told him that she went to the perinatal group on June 5 and was told she didn’t have an appointment, but that he insisted she return there “before her due date” to ensure she had the repeat U/S.
Our obstetrical expert was cautious about defending the care through trial because of the failure to repeat the U/S and the absence of evidence of awareness of the discrepancy between the fundal heights and gestational age. He felt that regardless of the failure to repeat the U/S, Dr. A had an obligation to counsel the patient on the options of induction and cesarean delivery.
The plaintiff discontinued the case against the perinatal group and chose to proceed exclusively against Dr. A, who was the patient’s private obstetrician. Shortly before trial the plaintiff attempted to withhold the examining physician’s report, which is customarily exchanged before the witness testifies. But our firm obtained it and in the report the physician (a pediatric neurologist retained by the plaintiff’s firm) conceded that the infant had essentially full motor recovery in the right arm but was left with a mild contracture deformity, mostly cosmetic in nature.
Dr. A settled the case for $90,000 during jury selection. The plaintiff had originally demanded $650,000 to resolve the case. All other parties were discontinued.
While most of the shoulder dystocia/brachial plexus injury cases we defend involve LGA babies, most often it is the failure to predict such an event and the mechanisms used in shoulder dystocia cases that are at the crux of the claim. In this case, the physicians were on notice that the infant was LGA and the allegations involved failing to appreciate and respond to those warnings.
The defendants reaped the benefit of the infant’s profound recovery in this case; otherwise the settlement figures likely would have been more significant and it would have been a tricky case to defend. The “no shows” documented by the perinatal group were helpful but it would have been difficult to “blame” the mother for her child’s injury, particularly when all defendants conceded that her diabetes and April fetal growth survey put them on notice that she had to be monitored closely for potential macrosomia of the fetus.
The testimony of the perinatologists that the private obstetrician could have easily performed the repeat U/S to assess for fetal size placed the case squarely on his shoulders, and the absence of documented awareness of the fundal height discrepancy gave the plaintiff too much ammunition to allow a lay jury to price the case, especially considering the plaintiff’s reduced demand when the examining pediatric neurologist’s report
Mr Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback on this column via email to firstname.lastname@example.org.