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Legal: Failure to monitor FHR in labor and delivery

A woman at 36 weeks' gestation had an external fetal monitor placed about 2 hours after her arrival at the hospital.

A NEW YORK WOMAN WAS AT 36 WEEKS' GESTATION when she presented to the hospital in labor in 2006. An external fetal monitor was placed about 2 hours after her arrival and the fetal heart rate (FHR) was found to be nonreactive with a heart rate of 160 to 170 beats per minute. A vaginal exam found the cervix to be 6-cm dilated and the head at 0 station. A prolonged deceleration in the nineties occurred about 20 minutes later; she was 8- to 9-cm dilated and delivered about 40 minutes after that. The infant had Apgars of 6 and 7, but required supplemental oxygen and had decreased tone with poor suck and grasp reflexes. Seizures were observed within the first few hours of life, and the infant was transferred to another hospital. The child was diagnosed with cerebral palsy, cortical impairment, and developmental delays. He requires feeding with a G-tube.

The patient sued those involved with the delivery and alleged failure to timely deliver and failure to timely begin monitoring at the time of the mother's presentation to the hospital.

The defense claimed that the monitoring was appropriate and that the fetal heart monitoring strips did not suggest a need for earlier delivery. They also claimed that the infant's injuries occurred prior to arrival at the hospital as evidenced by pathology and radiologic findings. However, a settlement was reached with the obstetrician for $2.1 million prior to trial. A jury returned a $77,418,670 verdict against the hospital.

The Guidelines for Perinatal Care , 6th edition, state that "A pregnant women who comes to labor and delivery area should be evaluated in a timely fashion." This includes FHR and some assessment of fetal well-being, and if she is suspected to be in labor, has rupture of membranes, or vaginal bleeding, she should be evaluated promptly. Any deferment of FHR monitoring or admission to L&D is allowable only after initial evaluation and documentation of fetal well-being. In retrospect, the patient in this case was clearly in labor during the 2 hours without monitoring of the FHR, and even if the child's condition were due to some other cause or pre-existed her arrival in L&D, it is impossible to prove no damage occurred that may have been preventable.

Department editor DAWN COLLINS, JD, is an attorney specializing in medical malpractice in Long Beach, CA. She welcomes feedback on this column via e-mail to dawncfree@gmail.com