Did unnecessary induction result in birth injury?

December 7, 2018
Andrew I. Kaplan, Esq
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.

In a lawsuit involving both mother and infant, allegations of infertility from a D&C were also included.

Facts

On June 18, 2012, with Defendant obstetrician as the attending physician, the patient presented to the hospital with a complaints of possible contractions and diarrhea with nausea for approximately 3 days. Labor and delivery triage noted that the woman’s last menstrual period was on October 10, 2011 and that this was her third pregnancy, which was 35 weeks, 6 days. 

On examination, the fetus was noted to be in the cephalic presentation, membranes were intact, and she was 1-cm dilated, 0% effaced, and at -3 station. The cervix was posterior. An abdominal sonogram was performed. The patient was diagnosed with enteritis and she was discharged home to follow-up in her private doctor’s office.

For the woman’s vaginal delivery admission, which began on June 28, the Defendant was listed as the attending. The patient’s sonographic due date was July 16. She was noted to have a history of 1 full-term pregnancy and delivery, and 1 abortion at less than 20 weeks. She had been tested and found to be Group B strep-positive, for which she had been treated with penicillin on 4 occasions. 

Ultimately, onset of labor was documented as having occurred at 11:15 p.m. on June 28, with membranes ruptured on June 29 at 11:15 p.m., with no meconium seen. The patient was monitored both by an external monitor and an IUPC. Her child was born on June 29 at 12:27 p.m. At delivery, which was performed under epidural anesthesia, the patient pushed and the infant delivered spontaneously in LOA position. A nuchal cord x 1 was easily reduced. No episiotomy was performed nor were any vaginal lacerations encountered, and the placenta delivered spontaneously. The infant was handed off to a waiting nurse, and pediatricians were present for delivery. The infant’s birth weight was 6 lb, 9 oz. and the Apgars were 4, 5, and 7. 

Defendant noted that before the delivery, some abnormalities in the fetal heart rate tracing were observed. The mother received oxytocin prior to delivery, with a note suggesting that induction was for decreased fetal movement at a point in time when the mother was 3- to 4-cm dilated. Defendant was present and making the decisions during labor and delivery. It was also noted that, in the triage area, the mother complained of decreased contractions, a mild headache and mild, blurry vision. 

The placenta was sent to pathology and the findings included gross green meconium discoloration but no evidence of acute intra-amniotic infection. There was no evidence of chronic placental insufficiency. The pathologist went on to state that “in this case, with meconium staining of the placental report of membranes, a recent reporter suggests that meconium staining as identified histologically, requires a minimum of 8 to 9 hours exposure; clinical correlation will be of interest.” Finally, the pathologist wrote that “in this reviewer’s opinion, villous histology in regards to the extent of villous edema is outside of what would be considered standard at term.” 

 

Infant’s hospital admissions

The infant was taken to the neonatal intensive care unit, for a workup of sepsis, presumed metabolic acidosis and transitory tachypnea. Initial labs, including complete blood counts and arterial blood gasses, were all within normal limits. The baby received a fluid drip for the first 2 days of life until feedings were begun. Labs in the first few days of life continued to be within normal limits, including bilirubin level. The child was vaccinated for Hepatitis B vaccine and a hearing check seemed normal. Over the course of 3 days, the infant was found to be afebrile, passing stool appropriately, ultimately eating and gaining weight appropriately (2860 g at discharge). The infant’s discharge diagnosis was listed as acute respiratory distress.

The day after the initial discharge, the child returned to the hospital with signs of gastroesophageal reflux disease. When she was brought to the emergency room, her mother stated that the child had “episodes of blueness around the mouth.” The first episode occurred after a feeding with formula, at which point the child turned blue around the mouth, began to pant, and according to the mother, the eyes started to roll back for about 5 seconds. Four hours later, there was a second episode, with the child lying on her back, but unrelated to feeding. However, the mother reported that even modest stimulation, in this case simply picking up the child, resulted in a return to normal color, virtually immediately. 

The child was admitted on July 3, 2012 for cardiopulmonary monitoring with reflux precautions and placed in the pediatric intensive care unit. On her second night, she had 3 episodes of desaturation, all after feedings, with oxygen saturation levels dropping to the low 80s. At the same time, her other vital signs remained within normal limits. As a result, the attendings requested a partial sepsis workup including urine cultures. Antibiotics were started despite the fact that there was no serious clinical suspicion of infection. A lumbar puncture was attempted without success. Blood and urine cultures were negative, and antibiotics were discontinued. Neurology consultation recommended a video electroencephalogram and brain magnetic resonance imaging (MRI). On the third night of the admission, the child had 2 episodes of cyanosis, again to the low 80s, which seemed to resolve with burping. No seizure activity was ever noted. The brain MRI ultimately was found to be within normal limits. Cardiac echocardiograms showed patent foramen ovale, left-to-right shunting which required no intervention. 

At discharge, the plan was to continue ranitidine at home. A speech pathologist evaluated the child and advised a special technique for the mother to help the baby in terms of sucking and swallowing. The mother was also prescribed a pulse oximeter machine for home use for several months. Results of brain MRI were consistent with a very mild subdural hemorrhage, which is not unusual in a status post-vaginal delivery. 

Mother’s hospital admissions

The mother returned to the hospital on July 12 with suspicion of retained products of conception. Apparently, since the delivery, she had some issues with vaginal bleeding. She also complained of uterine tenderness. The Defendant started the patient on antibiotics for presumed endometritis. 

A sonogram performed on July 13 revealed retained products of conception. Under general anesthesia in the operating room that day, the Defendant performed a pelvic exam on the patient, following by a sonogram-guided suction dilatation and curettage (D&C). Postoperative sonograms showed a thin, endometrial stripe with no retained tissue. The notes suggested that the patient tolerated the procedure well with no adverse events. Post-procedure, a drop in the patient’s white blood cell count was documented. She was stable and discharged that same day with prescriptions for doxycycline, metronidazole, and 3 doses of methylergonovine. 

The sonogram report for the July 13 procedure documented retained products of conception pre-procedure and no retained tissue post-procedure. A final surgical pathology report dated July 18 said that the pathologist received “products of conception,” consisting of an aggregate of soft, spongy red-brown tissue, with blood clots measuring 6.3 x 5 x 1.5 cm. No fetal parts were noted. The final pathological diagnosis was products of conception, with fragments of implantation site, with dilated and variably thrombosed structures consistent with converted uteroplacental vessels with prominent fresh thrombus and acute chronic inflammation. Histology was consistent with sub-involution of the implantation site with microscopic retention of products of conception. 

The last Defendant hospital record for the mother was dated July 22, 2012. The emergency presentation says that the 29-year-old female, who is 1 month postpartum, and 1 week “status post life threatening vaginal bleeding taken emergently to the O.R. for D&C,” returned to the emergency room for continued vaginal bleeding. She claimed she was soaking up to 

6 pads per day with clots. The note said that the patient had been diagnosed with uterine involution after the prior D&C, again noting the “life threatening hemorrhage last week.” The notes suggested that between her presentations to Defendant hospital, the patient had appeared at a nonparty Medical Center where she had a sonogram and was told that she needed to be taken back to the operating room for another D&C. A follow-up D&C was ultimately performed at the nonparty Medical Center, however, the pathology showed no retained products of conception.

 

Allegations

The plaintiff mother contended that the Defendant negligently opted to induce labor when the estimated gestational age was 

37 weeks, 4 days, despite an alleged absence of medical indication for induction before full term was reached. The plaintiff maintained that as a result of the vaginal delivery at that time, her baby suffered very substantial developmental delays and respiratory difficulties. The plaintiff also claimed that when she felt that products of conception remained and the defendant performed a D&C, it was done in a negligent manner, causing infertility. The mother testified that she, otherwise, would have had additional children. 

 

Trial

The defendants and their experts felt the care was defensible and chose to go to trial. The defendants contended that induction at that time was proper. The defendant pointed out that the mother went to the hospital because of complaints of decreased fetal movement. The defendant further asserted that signs of potential preeclampsia, including mild headache, blurring of vision and decreasing blood pressure, justified induction at that time. The defendants also contended that when the mother complained that she felt like portions of the placenta remained, a D&C was properly performed and ruled out retention of products of conception. The defendants contended that after the mother was discharged, she went to a non-party ob/gyn who performed a D&C, which was contraindicated because of the recent procedure, and that this factor caused the infertility.

The plaintiff argued that Defendant and the hospital set up an elaborate scheme to lure the plaintiff into the hospital so he could deliver her baby before he went on vacation (19 days later) “so he would ensure he got paid.” Finally, they claimed that following the delivery, the plaintiff was allowed to bleed on multiple occasions and was denied care. Rather than focus on the medicine, opposing counsel attempted to inflame the jury’s passion and turn the case into a conspiracy.

Defendants were able to establish glaring inconsistencies in the plaintiff’s testimony, and that the infant met all appropriate milestones in the first 2 years of life, per the pediatric records. An expert in pediatric neurology evaluated the child and the medical records and confirmed that the infant suffered from autism, which has not and cannot be scientifically attributed to birth injury. The defendant obstetric expert testified that decreased fetal movement in a woman at term is, in and of itself, an indication to induce labor, but when you combine that with the early warning signs of preeclampsia, (i.e. blurred vision, headaches and increase in blood pressure), that made it an even stronger indication to induce labor in this case. 

 

The verdict

 

After several weeks of trial, the jury got the case and returned a fairly expedient defense verdict for the defendant obstetrician and the hospital.