Legally Speaking


Alleged excessive force blamed for brachial plexus injury

An Illinois woman sued her obstetrician after a vaginal delivery that was complicated by a shoulder dystocia. She claimed the physician applied excessive force and negligently performed the vaginal delivery in 1995. The infant suffered a brachial plexus injury and permanent right arm disability.

The obstetrician denied using excessive force and claimed that standard maneuvers were used to resolve an unexpected and unpredictable delivery complication. The jury returned a defense verdict.

Shoulder dystocia cases are one of the top three types of malpractice actions resolved through litigation against obstetricians today. Some cases are successfully defended, while others result in awards of various amounts to plaintiffs.

In the case described here, the physician and patient entered into a high/low agreement sometime before the jury reached a verdict. That is, the "high" amount agreed upon is awarded if the jury finds for the plaintiff, regardless of the dollar figure specified by the panel. Similarly, the "minimum" is what the plaintiff gets if the jury finds for the defense. Juries usually are not aware of high/low agreements. In the Illinois case, the low amount was $75,000 and the high amount-if the plaintiff had won-would have been $850,000. Because of the defense verdict, the plaintiff will collect the $75,000.

You may wonder why it would be a good idea to enter into such an agreement if there is a possibility of a defense verdict. But given the huge variance in jury awards to plaintiffs, it may be something to consider if you can negotiate reasonable "high" and "low" amounts.

Hyperstimulation with oxytocin blamed for quadriplegia

A Kentucky woman was admitted to the hospital in 1998 for induction of labor at just over 40 weeks' gestation. Her obstetrician ordered oxytocin and eventually a vacuum-assisted delivery was attempted, but the infant ultimately was delivered by cesarean section. The child suffers from brain damage manifested by spastic quadriplegia with severe speech and motor deficits. At age 5, the child was confined to a wheelchair and required around-the-clock care.

In the lawsuit that followed, the patient alleged the oxytocin caused the hyperstimulation. She claimed the obstetrician should not have continued the drug and that vaginal delivery should not have been attempted. The woman alleged the hospital was negligent in its credentialing of the physician, in that she had only been practicing for a month at the time of the delivery, but was allowed full privileges without monitoring. She also claimed the hospital's nurses failed to note that the oxytocin was not working.

The obstetrician settled for a confidential amount before trial. The hospital argued that the oxytocin was appropriately used and both patient and fetus responded well. They argued that the terminal hypoxic event was the result of an unforeseeable and unpreventable fetal movement that constricted the umbilical cord, and that the infant was promptly delivered. The hospital also claimed the physician was properly credentialed. A jury found both the obstetrician and the hospital negligent. Fault was apportioned 80% to the hospital and 20% to the doctor. A total award of $27,599,000 was returned, which was reduced to $22,079,200 after consideration of fault. Posttrial motions were pending.

Fistula develops after LAVH

In 2001, a 32-year-old Kentucky woman underwent laparoscopic-assisted vaginal hysterectomy (LAVH), which was performed by her gynecologist. During the operation, he encountered extensive varicosities on the bladder flap and bleeding, which he stopped with cauterization. Three weeks later, the patient suffered complications, including urine leakage from her bladder. A small hole was found in the bladder, which later developed into a fistula.

The patient sued the gynecologist, claiming that when he encountered varicosities on the bladder, he should have converted to an open laparotomy, which would have permitted him to address the bleeding. The woman claimed that her bladder was damaged during the cauterization.

The physician claimed that he never cauterized near the bladder. He argued that fistula is a known risk of the surgery and can happen during hysterectomies without negligence. The jury returned a defense verdict.

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