Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.
When a plaintiff brings forth a specious claim, constant pressure from the defense is key.
The infant-plaintiff was the patient’s seventh pregnancy and fourth delivery. The mother’s obstetrical history was significant for six gestations with three term deliveries and two abortions. The first delivery was spontaneous vaginal at 39 weeks in 1999. The labor was complicated by macrosomia, the infant weighed 3,493 g. The neonatal course was complicated by shoulder dystocia, a brachial plexus injury, and Erb’s palsy. The second delivery, in 2002, was a cesarean done at 39 weeks due to the 3010-g infant’s breech position. No complications were noted. The third delivery, by elective cesarean in 2009, was also at 39 weeks with no complications.
The mother’s prenatal care for the pregnancy at issue was received at Defendant Hospital. Her history was significant for hypertension and chronic severe asthma, for which she had been hospitalized in 2012. At the first prenatal visit, in December 2014, she was age 35 and considered obese at 4’11” and 130 lb. She reported possible elevated blood pressures in her last pregnancy and postpartum hemorrhaging with her prior two cesarean deliveries.
The prenatal records show that the mother was noncompliant with her care recommendations and failed to appear for multiple follow-up visits, including missing the opportunity for prenatal serum screenings. She was also advised on multiple occasions to see a pulmonologist but did not do so until May 21, when she was sent directly to the labor and delivery triage for a pulmonary consult and maternal sonogram due to concern for uncontrolled asthma and inconsistent use of bronchodilators and montelukast. She also did not present on June 12 for her scheduled cesarean, and instead presented in labor after spontaneous rupture of membranes at 4:51 AM on June 13, 2015.
On June 13, the patient was admitted and seen in triage. Defendant A performed a vaginal examination and documented that the cervix was 2 cm dilated, 90% effaced, and the head was at -3 station. Presentation was vertex. The history of the patient’s prior deliveries was extensively documented in the records and it was noted that she was to be delivered by elective cesarean with no trial of labor and that a bilateral tubal ligation was to be performed at delivery.
The mother was seen by Dr. B shortly before being taken to the operating room for delivery at 6:21 AM. The records indicate that Dr. B performed the cesarean by a low segment transverse incision and that the infant’s presenting position was cephalic. The delivery note documents moderate adhesions encountered during the delivery, as well as the bladder being severely adhered to the lower uterine segment, which resulted in the incision being made as low as possible. No fetal anomalies were noted. Dr. B delivered the female infant “by the head” by “manual extraction” at 7:22 AM. Dr. C assisted during the delivery and believed that Dr. B performed the extraction and delivery of the infant at issue due to the adhesions noted. Following delivery, a bilateral tubal ligation was performed by Dr. B. No complications were encountered subsequent to the surgery and the mother was discharged without issue on June 15, 2015.
The mother’s postpartum visit on July 13, 2015, with Dr. B was unremarkable. No mention was made of the infant during this visit.
The birth records for the infant indicate that a moderate amount of meconium was encountered at the time of delivery and was aspirated with bulb and wall suction. She breathed immediately, cried spontaneously and had well-flexed muscle tone and a vigorous cry. Her Apgar scores were 9/9 at 1 and 5 minutes. The infant was transferred to the newborn nursery where she weighed 7 lb 7 oz and was 20.4 inches in length. Her head circumference was 36 cm. All admitting vital signs were normal and she passed stool and clear urine. The admitting exam by the resident and the pediatric attending physician was performed. No abnormalities were noted, and the neurologic portion of the exam noted normal range of motion in the infant’s neck; an intact right and left clavicle with no crepitus; no spinal curvature, hair tuft, or sacral dimple; five digits on all hands and feet with no digit fusion; and symmetrical movement in all extremities. It was also documented that the infant had normal muscle tone. The pediatric attending physician separately documented her exam, which also showed that there were no abnormalities of the hands, feet, spine, or hips. The neurologic exam showed a normal cry and suck, a normal right and left grasp, symmetrical movement in the extremities, no irritability, no hypo- or hypertonia, no jitteriness, and no paresis or paralysis on the right or left.
A nurse’s note made at 8:00 AM on June 14 showed that the infant’s body tone was flexed, normal, and appropriate for a newborn. Examination by the attending at 12:10 PM showed no change and the infant was clinically stable and bonding and feeding well, and established newborn care was continued. At 8:15 PM, the nurse again noted that the infant was moving all extremities. The nursing assessment the following morning was unchanged, and the infant was moving all extremities and was awake and alert.
The final pediatric attending exam, done before discharge on June 15, 2015, showed nothing changed from the prior exams, except for new findings of a cardiac murmur and decreased left arm movement. A cardiology consult at 2:00 PM showed that the infant was moving all four extremities equally with good tone and intact reflexes and that she was alert, awake, and had appropriate mental status for her age. An electrocardiogram was pending, but echocardiography showed a multi-fenestrated atrial septum with two to three small defects, but otherwise normal intracardiac anatomy. The pulmonary flow murmur was felt to likely be secondary to the multi-fenestrated atrial septum and because the small defects were within normal limits for the infant’s age, it was felt they would likely close spontaneously. As such, it was recommended that the infant follow up with cardiology in 1 year.
Clavicular x-ray performed at 3:24 PM revealed an intact left clavicle with no fracture, no osseous destruction, and no periostitis. The indication for the study was reported as “birth trauma.”
The infant later presented to Defendant Hospital on December 18, 2015, for a magnetic resonance imaging (MRI) of the cervical spine and brachial plexus. The diagnosis on admission was Bell’s palsy. Physical exam indicated that the infant had appropriate mobility for her age and that she was moving all four extremities voluntarily or on command. The short stay form indicated that the chief complaint was weakness of the left arm and left Erb’s Palsy following delivery by cesarean. Neurologic findings on the short stay form were left Erb’s Palsy and brachial plexus injury. The MRI revealed a normal cervical spine and left brachial plexus with no evidence of root evulsion, brachial plexus mass, or hematoma.
Plaintiff alleged that defendants did not use proper care in their performance of cesarean delivery, resulting in a brachial plexus injury. Significantly, the plaintiff did not annex a Certificate of Merit to their Verified Complaint affirming that they had spoken to an expert who reviewed the records prior to commencement of the lawsuit and was willing to testify that there had been a departure or departures from standards of care sufficient to result in injury to the infant.
The resident OB advised that he had never personally encountered a case of Erb’s Palsy occurring as a result of cesarean delivery, but he was aware of some literature that brachial plexus injury can occur, either as a result of in utero issues or at delivery. He stated that there is no strong science to back up the theories with regard to in utero development of Erb’s Palsy, but that there has been consideration of occurrences such as decreased oxygen to the fetus during pregnancy or positioning of the baby in utero causing stretching of the nerves in the neck. He doubted the mother’s noncompliance with her asthma medication or her severe chronic asthma could cause decreased oxygenation during the pregnancy sufficient to result in nerve ischemia.
Likewise, one of the delivering attendings opined that there are published case reports of brachial plexus injury occurring in association with cesarean delivery. These case reports, in his opinion, support a theory that brachial plexus injury can occur as natural sequelae of the birth process and is not always caused by shoulder dystocia. In this case, it was even more difficult to explain the injury because the plaintiff was not in active labor and the head was not engaged, thus the fetus had not experienced the propulsive forces of traveling down the birth canal.
Secondary to pressure from our office to produce the aforementioned certificate of merit or suffer dismissal, opposing counsel, apparently unable to acquire an expert to support his theory, moved for dismissal of the infant’s claim, extinguishing his claim.
This case offers more of a legal than a medical lesson. By staying attuned to the failure to produce the requisite documentation affirming that the plaintiffs had properly vetted their claim under the law, and by applying constant pressure for compliance, we were able to get this specious claim discontinued at an early stage rather than putting all of the defendant physicians and hospital through protracted discovery. Early discussion of the case and analysis of the support in the literature for potential theories allowed us to take a firm posture in pressuring for proof of merit or dismissal.