A child's disabilities are found to be unrelated to the events that occurred at her birth.
The primary focus of most malpractice cases-particularly concerning deliveries-is whether the practitioners departed from good practice in their care of mother and infant. Equally important and compelling, however, is whether the infant’s medical issues have anything to do with the practitioners’ actions.
An $8 million verdict for the plaintiffs was rendered in a case in which negligence was alleged during a labor and delivery on January 5, 2001. On appeal, the court ruled that errors during that trial warranted retrial, and the case was transferred to our office. The plaintiff alleged that her infant sustained, among other things, brain damage (specifically, hypoxic ischemic encephalopathy [HIE]), cerebral palsy (CP), and a fractured humerus as a result of failure to perform a timely cesarean delivery.
The plaintiff also had a 9-year-old, a 6-year-old, and an 18-year-old from a previous marriage. Significantly, the eldest had suffered a fractured clavicle during delivery. This obstetrical history was not disclosed by the plaintiff during her prenatal care at the defendant hospital or at the time of the 2001 delivery.
The plaintiff learned that she was approximately 2 weeks pregnant following a vomiting episode in 2000. She visited a clinic where she was given prenatal vitamins and told that her due date was January 9, 2001.
On June 5, 2000, the plaintiff presented to the defendant hospital with complaints of bleeding for 45 minutes following sexual intercourse. She denied abdominal pain. The differential diagnosis included possible miscarriage. Her medical history indicated that she was 9 weeks pregnant but did not include the clavicle fracture sustained by her oldest daughter. The plaintiff was examined, stabilized, and discharged with instructions to follow up with her ob/gyn.
On November 29, the woman presented to the defendant hospital with complaints of shortness of breath and decreased fetal movement. She denied any medical history. She was examined, the fetal heart rate (FHR) was checked, both were deemed fine, and she was discharged home with labor instructions.
On December 24, she presented to the clinic with complaints of contractions, was examined, and was advised that she had not dilated. She testified during her deposition that following an ultrasound (U/S) she was told that she was carrying a “big baby.” She was discharged and instructed to return to the hospital if her complaints continued. On December 31 she returned to the clinic, again with complaints of contractions. It was determined that she was approximately 1 cm dilated. The woman was advised that the baby was doing well and she was discharged. Her EDD was January 1, 2001.
On January 4, 2001, the plaintiff presented to the hospital emergency department (ED) with contractions. She was connected to an external fetal monitor and advised that the FHR and her contractions were fine. She testified that after an U/S she was told that her baby would be 9 or 10 lb. Her contractions were 8 minutes apart. She was told that she was “not fully dilated,” and was discharged with instructions to drink fluids, walk, and return to the ED when she was in “active labor.”
On January 5, the plaintiff awoke during the night and realized that her water had broken, revealing clear fluid. She testified that she arrived at the defendant hospital at approximately 4:15 am and remained in the L & D unit until about 5 pm. The record indicates that she was admitted to the hospital at 4:20 am. The ED notes, authored by a certified nurse-midwife (CNM), indicate that on arrival the plaintiff stated “my baby is coming out.” The CNM’s notes reference the patient’s first delivery of a baby weighing 8 lb, 13 oz. Her contractions were 2–5 minutes apart, lasting 55 seconds. She was 1 cm dilated and 50% effaced, with the baby at -3 station.
On January 5 at 6:55 am, ob attending Dr. A noted that the patient’s prenatal care was provided at a clinic and that she had previously delivered an 8 lb, 12 oz baby. The ob also noted that the baby seemed larger than 9 lb. She indicated that she would “observe labor” and proceed to cesarean delivery if no progress.
At 9 am, the patient received an epidural, which remained in place until 2:05 pm. At 9:30 am, ob attending Dr. B examined the patient and noted that the FHR was in the 140s, positive for accelerations and negative for decelerations. An exam revealed that she was 4 cm dilated and 100% effaced, with the baby at -3 station. The estimated fetal weight was greater than 9 lbs. Dr. B’s plan included placement of an internal fetal monitor and close monitoring of labor. An hour later, Dr. B noted that the patient’s temperature was 101.1°F and she remained 4 cm dilated. The FHR remained in the 140s, positive for accelerations and negative for decelerations. Dr. B’s plan included considering antibiotics for the patient’s elevated temperature.
A 10:43 am nursing note states “fetal decels in the 110’s.” The patient was turned and given oxygen by mask. It was noted that Dr. B was made aware of the FHR. At 11:30 am, Dr. B noted that the patient’s temperature was 100.6°F. She also noted that the FHR remained in the 140s, positive for accelerations and negative for decelerations. Her plan included administering ampicillin and gentamycin by IV, Pitocin augmentation, and normal spontaneous vaginal delivery. Ten minutes later, Dr. B noted that the patient was 6 cm dilated and 100% effaced, with the baby in -2 station. There is also a note that the patient had an adequate pelvis.
A nursing note at 11:45 am stated that there were mild variable decelerations and that the patient was given oxygen by mask. The epidural continued to drip and the patient was complaining of discomfort. She was having mild to moderate contractions and fetal tachycardia continued (FHR in the 170s). At 12:30 pm Dr. B was made of aware of these events and a nursing note indicated that FHR tracings were nonreassuring (in the 180s).
At 1 pm the patient’s temperature was 101.0°F and FHR was in the 160s, positive for accelerations and negative for decelerations with good “beat to beat variability.” Contractions were 4–5 minutes apart. Dr. B’s impression included chorioamnionitis.
At 2 pm, the patient’s temperature had risen to 101.6°F. At 2:30 pm, FHRs (170-180s) were nonreassuring and the patient was leaking clear fluid and blood-stained amniotic fluid. At 4 pm, fetal tachycardia persisted. The patient was “crying for pain relief.” She testified that the epidural “wore off at some point.”
At 4:35 pm, Dr. B noted that the patient’s temperature was 101.0°F. The FHR was in the 160s, positive for accelerations and negative for decelerations with good “beat to beat variability.” The patient was 8 cm dilated and 100% effaced, with the baby at -1 station. Contractions were
3 minutes apart. She remained on IV ampicillin and gentamycin. Dr. B noted “consider Caesarean section if patient does not progress.” The doctor discussed with the patient the need for a cesarean delivery. A 4:50 pm progress note by Dr. B said that the patient was 8 cm dilated and 100% effaced, with the vertex presenting at 0 station. Dr. B’s impression included chorioamnionitis and “failure to dilate,” likely secondary to fetal macrosomia.
At 5 pm, Dr. B noted “need to perform STAT [Caesarean] section on another patient. Will continue to monitor [the] patient with close surveillance. To have available MD informed for Caesarean section.”
At 5:30 pm, Dr. C, the ob attending, wrote a lengthy “OB on-call delivery note,” stating that on arrival at 5 pm, she reviewed the patient’s chart and was advised by the nursing staff that the patient was “fully dilated, +2 station” and was being transferred to the OR secondary to a large infant.
Significantly, Dr. C noted that the patient had a medical history of a first delivery involving shoulder dystocia necessitating a broken clavicle for normal spontaneous delivery. She was apparently advised that this occurred approximately 12 years before. This information was conveyed only after the infant was delivered.
Dr. C noted that the baby’s head was delivered easily with a large amount of molding over a median episiotomy. She placed the patient in the McRoberts position and applied suprapubic pressure with the staff holding the mother’s legs. A corkscrew maneuver was attempted but Dr. C was not able to fully rotate the shoulders and noted that the posterior shoulder would not deliver, with the anterior shoulder remaining wedged behind the pubic bone. The posterior arm was in full extension and an attempt to flex the arm at the elbow was unsuccessful. Dr. C broke the humerus and the baby was delivered at approximately 5:25 pm.
The infant’s Apgars were 7/8/9. She weighed 9 lb, 13.8 oz, and was noted as being limp and floppy. She responded well to suction and intubation, becoming pink and spontaneously moving her extremities, except for the left arm. The placenta was delivered intact and spontaneously and the episiotomy was repaired. The plaintiff’s temperature was 101.4°F. The infant was treated in the neonatal intensive care unit (NICU) for exposure to the mother’s elevated temperature. The plaintiff’s physical condition following delivery was normal and the records note that she visited the infant in the NICU.
Dr. C’s notes indicate that cord blood and gases were obtained at delivery. The pH was 7.266 and PCO2 54.3. A second set of values (venous cord blood) showed a pH of 7.215 and a PCO2 of 62.7.
An x-ray showed the left humerus was completely fractured and displaced. The arm was pink and warm with no spontaneous movement. No intervention was performed other than immobilization of the arm. The mother was discharged on January 7. The infant’s discharge was delayed until January 9 so that she could undergo antibiotic prophylaxis because of her mother’s fever during labor.
On January 22, as instructed, the infant was brought to an orthopedic clinic, where an x-ray revealed that the fracture was healing. On February 26, it was noted that the fracture had healed.
Records describe an infant with delays in her cognitive, fine motor, expressive, and receptive language skills. Psycho-educational testing placed her at a high probability of autism. An individualized education program report prepared in May 2005 states that the child presented as echolalic (showing repetitive speech patterns) with frequent fleeting eye contact, poor attention span, and difficulty in fine motor, visual motor, and behavioral skills. (Echolalia is known to present with autism.)
In August 2006, the child, then 5 years old, was classified as autistic. She continued to receive speech and occupational therapy. Significantly, the child was never classified as having CP, nor is there any suggestion that she had gross motor deficits or disabilities. Furthermore, she never received physical therapy.
After a 5-week trial, 3 primary allegations-or departure from good practice questions-went to the jury.
The first “departure” question was whether the CNM made appropriate inquiries of the plaintiff to determine her obstetric history on presentation on January 5, 2001. The plaintiff’s liability expert claimed that sufficient questions were not asked and, for that reason, none of the health care professionals who attended the plaintiff up to delivery were made aware of the fact that the plaintiff’s first child had shoulder dystocia and had her clavicle fractured.
The second question was why the healthcare professionals did not perform fetal scalp stimulation to assess the fetus’s well-being. The plaintiff’s expert claimed that in light of the lengthy and continuous tachycardia, it should have been done to determine if the fetus was suffering hypoxia, which went on to cause HIE. Our expert testified that there was no reason to perform fetal scalp stimulation because the FHR strips gave no indication of hypoxia. On my cross-examination the plaintiff’s ob expert agreed that although fetal scalp stimulation is a simple test, it is not a routine one, and need be done only if there is evidence of a problem.
The third question was whether a cesarean delivery should have been performed before 4:45 pm. We argued that there was no reason to perform a cesarean delivery because there was never any evidence of a problem, notwithstanding the more than 7 hours of continuous tachycardia.
The bulk of our defense addressed the issue of “proximate cause.” We emphasized that this child did not sustain any injury and, in fact, suffers from autism. Even if the jury found against the defendants with respect to departures, the undeniable fact, based upon the cross-examination of both the plaintiff’s ob expert and pediatric neurology expert, was that the child showed no evidence of hypoxia and is autistic.
After 2 days of deliberations, the jury returned a verdict in favor of the defendants.
Retrial of a case that was previously lost is always difficult because one is bound by the testimony elicited during the first trial. The witnesses’ testimony may be used against them if their answers change. In this case, however, we were able to successfully bolster prior testimony with expert support for the proposition that the CNM took an appropriate history from the plaintiff, who failed to advise of the difficulties attendant to her first delivery.
More importantly, expert testimony supported that cesarean delivery was never indicated. Expert testimony also confirmed the absence of evidence of CP or HIE, enabling us to successfully contend that acts or omissions alleged by the plaintiff did not substantially contribute to the outcome.
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 email@example.com. This case was tried successfully by his partner, Mark Aaronson.