Legal: Shoulder dystocia claims are on the rise

A New York woman was delivered by a midwife in 2002. A shoulder dystocia was encountered and maneuvers, including an episiotomy, were employed for delivery. The infant was diagnosed with a brachial plexus injury and has developed a 10- to 20-degree reduction of range of motion of her arm, requiring 3 years of physical therapy.

The woman sued the midwife, attending obstetrician, and hospital, claiming the midwife did not manage the shoulder dystocia properly and caused the injury.

The defense maintained that proper maneuvers were performed and the injury was the result of the shoulder being stuck by natural forces of labor and not by any act of the midwife. They also contended the injury would resolve in the next few years. The attending physician agreed to a $116, 000 settlement during trial and the jury returned a $180,000 verdict for the child, which is subject to a setoff of the settlement amount.

The number of malpractice cases involving shoulder dystocia and associated brachial plexus injury is on the rise, perhaps coinciding with the decrease in the numbers of VBAC deliveries and their subsequent lawsuits when damage occurs. Some of these cases are successfully defended, but many are not. And while some of the cases do involve substandard care in management of the dystocia, most do not. What the majority of these cases where payment is made for malpractice claims do have in common is the lack of adequate documentation.¹ Complete and consistent documentation in the chart when any extra maneuver is used to deliver the shoulders could help decrease the payouts and/or settlements in brachial plexus injury cases. Whether it is a check-list based approach for required information accurately recording the events surrounding delivery, and/or mandatory dictation of delivery notes, the documentation must include both what actions were and were not employed. Examples would be that no further traction was used once the dystocia was recognized until a maneuver to dislodge the shoulder was accomplished, or stating that no shoulder dystocia occurred as part of every delivery note. While these suggestions may not be considered requirements to meet the standard of care, they may well prevent a malpractice case or aid the defense of one.

1. Clark SL, Belfort MA, Dildy GA, et al. Reducing obstetric litigation through alterations in practice patterns. Obstet Gynecol. 2008;112:1279-1283.

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
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