Could this fetal demise have been averted?

February 15, 2021
Andrew I. Kaplan, Esq
Andrew I. Kaplan, Esq

Partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP in New York City, specializing in medical malpractice defense and healthcare litigation.

Taking all facts into consideration, contemplate the course of action you would have taken under the circumstances presented here.

Factual Summary

Historically, the plaintiff, a G2P1, had difficulty getting pregnant and had intrauterine insemination (IUI) in 2013 and got pregnant on the first attempt. For that first pregnancy, the plaintiff treated with maternal-fetal medicine specialist Defendant A for her prenatal care and delivered at defendant hospital via cesarean section due to decelerations and long labor.

With regard to the pregnancy to which this case relates, IUI alone was unsuccessful. The plaintiff became pregnant successfully after treatment with clomiphene after multiple attempts. After learning she was pregnant, the plaintiff transferred her care to Defendant A.

Her first prenatal care appointment with Defendant A was on June 4, 2016. At this first appointment, they discussed the importance of getting her diabetes under control. The record indicated the plaintiff had a prior cesarean section and desired a vaginal birth after cesarean (VBAC). She continued care with Defendant A and her insulin levels were monitored very closely.

An anatomy scan on July 20, 2016, showed fetus size equal to gestational date and there was no gross evidence of abnormalities. The prenatal record indicated in multiple places that the plaintiff desired a trial of labor after cesarean (TOLAC).

On September 28, 2016, the plaintiff signed a TOLAC form, which indicated a TOLAC delivery may have additional risks. The plaintiff had an uneventful prenatal course; throughout her scans, the size remained equal to dates; and there was good fetal movement.

Given the plaintiff’s diabetes, she was scheduled for delivery at 38 weeks. The last prenatal visit prior to the delivery was December 7, 2016, at which time she was going to be evaluated for induction versus a repeat cesarean section.

At 3:22 AM on December 12, 2016, the plaintiff presented to the defendant hospital with complaints of contractions without a rupture of membranes. An exam was performed by the resident, which showed dilation of 1.5 cm and 90% effacement, with the membranes intact. It was decided to admit the plaintiff to labor and delivery, which was accomplished at 5:30 AM.

At 6:43 AM, the next pelvic exam was performed, indicating the plaintiff was still at 1.5 cm dilation and 90% effacement. At 12:19 AM, a nonparty ob/gyn attending has a note that the plaintiff was informed of the nature of the delivery, including the risks and benefits of a VBAC versus performing a cesarean section.

Pelvic exam revealed dilation to 3 cm and effacement at 90%. Artificial rupture of membranes produced clear fluid.

Another pelvic exam was performed at 2:42 AM documenting 3.5 cm dilation with effacement still at 90%. The plaintiff was in latent labor and a decision was reached to perform an amnioinfusion to mitigate variable decelerations. Category 2 tracings were documented. At 5:16 PM, dilation was 4 cm, effacement of 90%, and there is a reference to continuing category 2 tracings.

The plaintiff was in latent labor with variable decelerations that were not improving with amnioinfusion. If there was no change by 7 PM the plan was for a repeat cesarean section.

Defendant B, also a maternal fetal medicine specialist, came on as the covering attending and concurred with the plan. He also noted category 2 tracings, and his impression was a stable latent phase. The plan was still to have a vaginal delivery, but if there was no significant progress the plan would change to a repeat cesarean section.

A 7:10 PM note indicated the plaintiff now wanted a cesarean section and at 7:37 PM there was a nonreassuring fetal heart tracing. The monitoring was discontinued and the plaintiff was taken to the operating room. The delivery was attended by Defendant B, and two defendant residents, along with nonparty resident.

The administration of anesthesia was started at 7:41 PM, with the skin incision at 7:53 PM, and the uterine incision at 8:21 PM. The time of delivery was recorded as 8:28 PM. The Apgar scores at delivery were 0 at 1, 5, and 10 minutes. The chart included a discrete certificate of spontaneous termination of pregnancy indicating this was a stillbirth and not a live birth with fetal demise shortly thereafter.

Defendant B’s operative note was written the following day at 2:54 PM. He noted the plan was that if the labor had not progressed, a cesarean section would be performed. The delivery was planned for shortly after 7 PM because of concerns regarding nonreassuring fetal heart tracings.

Significantly, Defendant B noted dense adhesions after the abdominal incision, which was done over the prior uterine scar, and therefore additional assistance was requested. He noted the skin incision was at 7:53 PM and the uterine incision was at 8:21 PM and the delivery effectuated at 8:28 PM.

Defendant C authored a note at 4:13 PM the following day and stated she was called into the operating room for assistance along with the nonparty resident. Her note stated the resident assisted with pushing the fetus from the vagina, but it was still difficult to deliver the infant, necessitating Defendant C to scrub in and deliver the fetal head, which she was unable to do on the first attempt.

Defendant C’s note indicated she further extended the lower portion of the uterine incision in a T-fashion. Defendant D wrote an operative note two days later, stating she was called into the operating room after the fascia had been opened and extensive scar tissue was identified, with three discrete bands of muscular scar noted and the rectus muscle growing into the uterine myometrium.

Defendant D noted that due to the close proximity of the bladder to the scar tissue and the uterus and the inability to clearly define planes between scar tissue and bladder, a retractor was placed to allow visualization of the lower uterus.

The decision was made to place the uterine incision just above what was thought to be a window in the lower uterine segment, resulting in a transverse uterine incision, at which time the placenta was immediately encountered, and a cotyledon “popped out.”

The placenta was noted to be dry and not bleeding, which Defendant D noted on interview was abnormal.

After the uterine excision was extended manually and attempts were made to deliver the fetus, Defendant D specifically noted help was called and it was noted it was very difficult to deliver the fetus.

Defendant D noted that the incision was extended in a “T” fashion, which was performed by Defendant C. Per Defendant D’s note, the fetus was delivered cold, floppy, with no amniotic fluid or blood surrounding the fetus, with no blood in the umbilical cord. The mother-plaintiff was administered four units of blood and one unit of plasma due to uterine atony.

Subsequently the plaintiff was seen by social workers and was able to spend time with the baby. A consent for an autopsy was signed. The plaintiff was very emotional and was ultimately discharged with a prescription for Xanax and was given a memory box. The autopsy report stated there was no obvious cause of death. The maternal diabetes was well controlled.

On January 24, 2017, the plaintiff had an ultrasound that showed a 4 cm clot in the uterus, which appeared to have retained placental tissue. On March 9, 2017, the plaintiff underwent a hysterosalpingogram that showed an enlarged uterine cavity with a defect occupying two-thirds of the cavity.

This was suggestive of retained products of conception. The exam also showed that both tubes were visualized, and the left tube was freely patent and the right tube was slightly patent.

On April 25, 2017, she had a resection of the retained products of conception and removal of a 4 cm mass. She presented for a follow-up exam on May 2, and her uterus looked well healed after she had her next menstrual cycle.

On May 23, another hysterosalpingogram was performed that noted there was no longer a defect. The records indicate she was continuing to have thoughts of sadness and frustration and was struggling to be a present mother to her daughter while still continuing to grieve.

Allegations

Plaintiff argued that the 28 minutes it took to navigate down to the uterus, notwithstanding the presence of adhesions, was too long a period of time to comport with the standard of care and within that context the assistance of Defendant D should have been invoked before the approximate 8:13 PM summons to her, this after the initial skin incision at 7:53 PM.

The more significant hurdle for the defense to overcome was the amount of time it took to extricate the fetus after the uterine incision (7 minutes). The plaintiff’s attorney alleged that the patient should not have been put through a trial of labor and the decision to perform cesarean delivery was negligently delayed.

It was also alleged the placenta was errantly incised during the surgery and there was a delay in appreciating the error and effectuating delivery. The patient also claimed significant emotional damages.

Discovery

Records and deposition of the patient reflected that she and her family had undergone significant documented grief and trauma as a result of the fetal demise, leading to the dissolution of her marriage.

Defendant C testified that the fetal demise more likely than not occurred prior to the uterine incision and the 7-minute time interval necessary to extricate the fetus.

Defendant C indicated that she was not privy to the extent of adhesions and scarring that were encountered initially by Defendant A and thereafter by Defendant D, but did indicate that based on her observation there was much scar tissue in the operative field and a lack of flexibility in the tissue.

Additionally, although she did not participate in the uterine incision that was made by Defendant D, he described it as being in the lower uterine segment. The delivery report indicated that the fetus was delivered through the placenta, but the unified testimony of the defendants was that the placenta was not completely disrupted, but rather only a portion of the placenta, that is, a cotyledon was encountered.

Although the delivery report does state that the fetus was delivered through the placenta, and that the placenta was completely disrupted for the 7-minute period it took to extricate the fetus, Defendant C testified that the placenta was not completely disrupted, and that the bleeding primarily was related to the uterine incision and the significant amount of adhesion dissection.

With regard to the labor and delivery, our expert indicated the decision to perform a cesarean section was timely made. The labor prior was latent on the precipice of converting to active labor.

The fetal heart tracings never progressed to a Category 3 strip, which would have necessitated eminent delivery. The Category 2 strips required continuous monitoring.

Our expert believed that it was within the standard of care for the physicians performing the cesarean section to perform a deliberate dissection of the adhesions given that this was not a stat or emergent cesarean section. It was appropriate to perform the cesarean section safely to avoid injury to maternal organs, including the colon and bladder.

Our expert was supportive that the failure to progress, along with the fetal tachycardia and nonreassuring tracings, were a sign to do a cesarean section, but did not indicate a stat cesarean section, and the fetal heart rate was not indicative of fetal distress.

With regard to the cesarean section itself, our expert was supportive of the deliberate nature of the dissection by the various physicians within the context of the nonemergent cesarean section, which would not have been the case if the fetus was in distress and a stat delivery was required.

Our expert was supportive of the decision to perform a standard incision and not immediately utilize the “T” incision. The cesarean section was proceeding in a nonemergent way and as such, it was appropriate to want a small incision. There was difficulty delivering the fetus with the creation of the initial incision and there was still difficulty that necessitated a “T” incision, which was ultimately successful, but not timely enough to prevent the stillbirth.

Our expert indicated that an earlier cesarean section would have been encumbered by the same difficulties as when it was ultimately performed, which would have still delayed the extrication of the fetus.

Result

The case settled as to defendant hospital.

Analysis

Plaintiffs’ counsel argued that the 28 minutes it took to navigate down to the uterus, notwithstanding the presence of adhesions, was too long a period of time to comport with the standard of care, and within that context the assistance of Defendant D should have been invoked earlier, but certainly before the approximate 8:13 PM summons after the 7:53 PM skin incision.

The more significant hurdle for the defense to overcome in this case was the amount of time it took to extricate the fetus after the uterine incision, and it is anticipated that the practitioners would face much more vigorous cross-examination at trial before a lay jury concerning the interval steps that led to the uterine incision and the ultimate extrication of the fetus.

Ultimately, given the hurdles posed by the alleged delay in extracting the fetus, and the inherent sympathy the prolonged delivery and result were likely to engender, the decision was made to settle the case on behalf of the hospital rather than risk a jury’s verdict.

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