Partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP in New York City, specializing in medical malpractice defense and healthcare litigation.
This month's web-exclusive Legally Speaking article examines a case where conflicting expert testimony and a sympathetic mother made for a difficult decision.
On April 8, 2013, a 32-year-old patient presented to the defendant hospital clinic for a pregnancy test, which was positive. Her estimated date of confinement (EDC) was November 15, 2013 and the gestational age was noted to be 8 weeks, 3 days. On April 30, 2013, the patient presented for her initial obstetrical visit accompanied by her husband. Examination was within normal limits and the fetal heart rate (FHR) was 170. Routine prenatal labs were ordered, first-trimester screening (FTS) was scheduled for May 1, 2013, and the patient was instructed to return to the clinic in 4, 8, and 12 weeks. Over the following 5 months, she visited the clinic for prenatal care eight times and all of the findings were relatively benign. In brief, on June 10, 2013, a fetal anatomical survey was performed.
On October 10, 2013, the patient returned to the clinic for her last prenatal visit at a gestational age of 34 weeks, 6 days. She reported doing well but also said she was feeling the baby less that day than she had the prior night. She reported no contractions or loss of fluid, and some dysuria a few days previously but not that day. The patient denied headache, vision changes, epigastric pain, and/or right upper quadrant pain. Fundal height was 32 cm and fetal heart tones were in the 160s. Questionable growth restriction was noted as fundal height was unchanged since the last visit. The patient was referred for a growth scan in 1 week and was to return for a visit in 2 weeks.
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On October 11, 2013, the patient presented to the clinic and reported decreased fetal movement. On external fetal monitor the baseline was 150, with minimal variability, no accelerations, and positive decelerations. Flowsheets in the chart document findings from the tracings every 15 minutes from 20:30 to 23:45. From 20:30 to 22:00, the fetal heart rate (FHR) baseline was 145 to 155; variability was minimal; accelerations were absent except for at 21:45, when they were noted to be spontaneous; there were no decelerations. At 22:15, the FHR was 150 with a deceleration to 90 for 90 seconds, variability was moderate, accelerations were absent, and decelerations were noted to be variable.
From 22:30 to 23:45, the FHR was 150 to 160 with minimal variability. A vaginal exam done at 22:50 showed 0/50/-2 and the membranes were intact. The patient was taken to an operating room (OR) at 23:57 for cesarean delivery with a preoperative diagnosis of non-reassuring FHR tracing and intrauterine growth restriction (IUGR). Her male infant weighed 1800 g and had Apgars of 2, 3, and 7. Per the operative report, “a hand was placed into the incision and the vertex of the infant delivered with the assistance of a vacuum. With gentle traction and the assistance of fundal pressure the rest of the torso was delivered.”
The infant emerged limp and apneic without cry. Positive pressure ventilation (PPV) was administered in the transitional nursery. The heart rate was initially in the 70s and remained there. With PPV via the bag-mask, the infant’s heart rate gradually increased. The infant did not appear dysmorphic with spontaneous activity and respirations. The umbilical arterial cord gas was 6.96 and PCO2 greater than 87 with a base deficit of -8. The UVC cord gas was 7.08 with a base deficit of -9.5. The infant was to be admitted to the Neonatal Intensive Care Unit as he was described to be in critical condition. Ampicillin and gentamicin were initiated, and he was to be followed closely for evidence of end-organ injury or insult.
On August 22, 2015, the infant presented for neurology evaluation. He had previously seen a neurologist but his mother wanted a second opinion. At age 2 years, he still could not walk, sit, or pull to stand. He was weak on the left side and was found to have global developmental delay, presumably caused by prepartum and/or peripartum abnormalities of gestation. Through early intervention, he was receiving physical, speech, and occupational therapy services. A psychological evaluation had not yet been performed. Assessment was spastic infantile paralysis. Magnetic resonance imaging of the brain without contrast performed on August 28, 2015 showed gliotic signal abnormality in the bilateral centrum semiovale and corona radiate with mildly diminished supratentorial white matter volume, compatible with periventricular leukomalacia.
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On September 1, 2016, the infant presented to speech pathology for an initial evaluation of dysphagia. Active problems included abnormal gait, asthma, chronic vomiting, constipation, hypospadias, penoscrotal hypospadias, poor weight gain, and spastic quadriplegic cerebral palsy. The impression was that the infant had mild-moderate oropharyngeal dysphagia characterized by reduced management of oral secretions with pooling of saliva on labial surface.
The plaintiff mother alleged that the defendant hospital failed to perform timely and proper prenatal sonograms, biophysical profiles, stress and non-stress tests, prenatal examinations, and blood tests to monitor and assess the well-being of the plaintiff and her infant; failed to properly evaluate plaintiff’s signs, symptoms, and/or complaints; chose not to perform or refer the plaintiff on October 10, 2013 for immediate sonograms and testing based upon plaintiff’s complaint that the baby was not moving as before and exam finding that baby was not growing since prior visit to assess the wellbeing of the infant-plaintiff in utero; negligently advised the plaintiff to go for a growth ultrasound in 1 week; ignored the plaintiff’s signs, symptoms, and complaints that the baby was not moving as before and had not grown since the prior visit; failed to advise the plaintiff of the signs and symptoms of fetal distress and IUGR; failed to timely diagnose and treat signs and symptoms of perinatal fetal distress, hypoxia, and IUGR; and failed to timely perform a cesarean section delivery of the infant-plaintiff.
The plaintiff maintained that as a result of the alleged negligence, the infant allegedly sustained the following injuries: perinatal asphyxia; perinatal hypoxia; perinatal metabolic acidosis; perinatal fetal distress; perinatal cyanosis; intrauterine growth restriction; hypotonia; muscle weakness and contractures; spastic quadriplegic cerebral palsy; spastic tetraparesis of extremities, particularly the hands; global developmental delay; periventricular leukomalacia; inability to stand, walk, or speak; severe cognitive impairment and delay; pulmonary and respiratory complications; inability to eat normally; neuropsychological delay and impairments; and social delay and impairments. Those impairments included autism spectrum disorder involving mood disorders, attention deficit hyperactivity disorder (ADHD); muscle spasms and spasticity of the arms and legs; bowel/bladder incontinence; severe language and communication deficits; respiratory insufficiency and infection; and total immobility with scissoring of the legs and severe functional deficits.
The maternal-fetal medicine (MFM) expert initially opined that the mother’s complaint of decreased fetal movement as well as the lack of change in fundal height since her last visit on September 23, 2010, would have prompted 95% of physicians to send her for a non-stress test on October 10. However, he felt that the documentation was unclear as to whether the reported decreased fetal movement represented a radical decrease in movement or simply a decrease in movement. The MFM indicated that he would not have sent the mother for a NST if she reported a minimal kick count versus if there was a radically different level of activity. If the latter, the doctor would have referred the mother for further evaluation that day.
The neonatology expert disagreed with the MFM and opined that the mother’s complaints of decreased fetal movement warranted an immediate BPP and it was a departure not to perform one on October 10. Both the MFM and the neonatology expert believed that there were no issues with management of the mother after her presentation on October 11, and felt that there was no evidence to have warranted an emergent delivery. Our neonatology expert believed that the infant’s injuries may have been the result of both hypoxic-ischemic encephalopathy (HIE) and fetal thrombotic vasculopathy (FTV). However, the expert also believed the infant was timely delivered. He believed that during the prenatal period,a chronic or acute event-or both- caused the infant’s injuries, but he could not conclusively state when the event(s) occurred. Based on the scans and the pathology, our neonatology expert believed that this infant suffered from both HIE and FTV, which resulted in the alleged injuries.
The mother testified that she told the doctor that she was worried after not feeling the baby. Upon further questioning, she testified that she specifically told the doctor that she felt the baby “less than the night before.” The doctor told her that the lack of movement was normal, but given her concern, he referred her for an ultrasound within 5 days. The woman proceeded to defendant hospital the following day and was not feeling her baby when she arrived there. The resident who sent the patient home on October 10 was only 3 months into her residency and did not document the extensive conversation regarding fetal movement she claimed occurred.
While the patient’s attorneys demanded $15 million for settlement of the matter, defendant hospital ultimately settled the case for $3.4 million at mediation.
It goes without saying that “brain-damaged” infant cases portend significant exposure for those involved in the claims. Here, given that we had a disagreement among our experts about the cause of the infant’s injuries, whether they resulted from deviations in standards of care, and also faced a credibility battle between a credible, sympathetic mother and a resident only 3 months into her training, the decision was made to attempt mediation in the hopes of arriving at a pretrial resolution. Due to the exposure in the case for the physicians as well as the defensible aspects of the care rendered, the plaintiff would have had significant hurdles. For these reasons, an acceptable resolution was ultimately reached.