Legal: Would earlier C/S have prevented brain damage?

May 1, 2008

Would earlier C/S have prevented brain damage?

A New York woman presented to a hospital in labor 1 day prior to her due date in 2001. When she arrived she had a temperature of 101.3°F and the FHR was tachycardic. She was seen by a resident, and antibiotics and acetaminophen were administered. The fever persisted and a cesarean section was performed. Shortly after birth, the infant was diagnosed with cerebral infarctions that caused mild partial paralysis and some reduction in cognitive ability.

The woman sued claiming the infarctions were due to hypoxia, which she said an earlier C/S would have prevented.

The physician claimed that the FHR monitor had been normal during the 2 hours just prior to the delivery, although the hospital could not produce the FHR tracings. They also contended that the delivery notes and summary did not contain a reference to fetal distress. A $3 million settlement was reached, with the hospital's insurer contributing $2.5 million and the physician's insurer contributing $500,000.

Losing the FHR monitor strip poses problems to the defense in malpractice cases where the alleged negligence involves FHR pattern recognition and management. Many hospitals have other pages in the patient's medical record that record FHR, periodic changes, and uterine contraction activity, and theoretically it would seem possible to show that the FHR was assessed and correctly identified as reassuring or nonreassuring. Unfortunately, this is usually not the case. In a malpractice case, retrospectively viewed, with a damaged child, the jury sees the missing tracing as suspicious and self-serving for the defense, regardless of any other notes in the chart. These cases often settle because without the strip, the defense cannot show the jury there was no ongoing asphyxia severe enough to cause damage proximate to delivery.

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