Legally Speaking

Brain damage allegedly tied to poor follow-up on NST

In 2000, a California obstetrician ordered a non-stress test (NST) when a patient reported decreased fetal movement. This NST was read as reactive, but the woman was scheduled for further testing. Three days later, another obstetrician read a second NST as "non-reactive, but reassuring." Four days later, the infant was delivered. Now age 5, he has since been diagnosed with severe impairment and has trouble walking, talking, and is hearing impaired.

The parents sued the physicians involved, claiming that a fetal-maternal hemorrhage several days before delivery was unrecognized. Had the condition been diagnosed, they alleged, delivery would have been done earlier, thus averting the infant's injuries. The parents claimed that the first NST was actually non-reactive and the reading of the second NST as "non-reactive, but reassuring" was not a recognized interpretation of the test.

Legal Perspective

This case illustrates the need for using only accepted and appropriate terminology when identifying FHR patterns. Communication between caregivers about the FHR pattern and identification of non-reassuring situations are critical to any malpractice case in which use of the technology and timing of delivery are at issue. Hospitals, physicians, midwives, and nurses practicing together all need to agree on the definitions and terminology that will be used in a given institution.

NSTs are either reactive or non-reactive and the criteria for them have been well-defined. An NST with decelerations can be reactive and non-reassuring, but NSTs cannot be non-reactive and reassuring. Non-reactive NSTs require further evaluation. Using the appropriate terminology and labeling patterns correctly, without inventing terms, conveys competence in understanding the physiologic basis for the information displayed on the FHR monitor.

Arterial lacerations during laparoscopy

In early 2002, a 37-year-old New York woman underwent laparoscopic removal of an ovarian cyst by her gynecologist. After the procedure, the patient suffered hypotension and tachycardia and received 12 blood transfusions, but did not improve. Exploratory surgery revealed laceration of an abdominal artery, which was subsequently repaired. Still, the patient did not improve. A second arterial laceration was found after dye injection and repaired during a third surgery.

The patient sued, claiming that the lacerations were caused by negligent insertion of the trocar and that the gynecologist failed to timely diagnose and repair the injuries. She claimed her condition warranted immediate exploratory surgery and that the initial operation should have resulted in repair of both arterial lacerations. She contended that an allergic reaction to the blood transfusions triggered her asthma, producing respiratory distress that required intubation and led to permanent vocal cord paralysis. The patient also alleged that she developed carpal tunnel syndrome due to being bedridden for an extended period of time.

The gynecologist argued that arterial lacerations were a known risk of laparoscopy and that he responded appropriately to the patient's condition. He also contended that the woman's vocal cords were not paralyzed and that she did not have carpal tunnel syndrome. The jury returned a defense verdict.

Shoulder dystocia during delivery

In 2002, a New York woman had a vaginal delivery complicated by shoulder dystocia and her infant was diagnosed with Erb's palsy. She sued her obstetrician, claiming the injury was caused by excessive traction, and said she had a videotape that showed the physician "tugging" on the infant's head.

The obstetrician contended that the delivery was properly performed and that brachial plexus injuries can occur without negligence. The case settled for $750,000.