Legally Speaking


Delay in delivery caused CPAn Ohio woman received prenatal care from an obstetrician in 1986. She recently filed a lawsuit against the hospital and physician involved with the pregnancy and delivery of her now 17-year-old son, who has cerebral palsy (CP). She alleges that an ultrasound performed around the end of her pregnancy called into question the fetus’s well-being. A non-stress test performed during a prenatal visit 2 days after the U/S indicated “fetal distress.” The woman was admitted to the hospital and an emergency C/S was ordered at 7:42 pm. Anesthesia was not ready until 9:00 pm and the infant was born at 9:40 pm. The allegation was that he suffered a hypoxic injury and was diagnosed with severe CP.

The lawsuit claimed there was negligence by those who performed the U/S for not recognizing “fetal distress” shown by the test. The claim was settled just prior to trial. The claims against the physician and delivering hospital alleging a delay in performing the emergency C/S went to trial. The physicians argued that the hypoxic injury occurred well before admission to the hospital and an earlier C/S would not have made any difference. The jury found against the physician and hospital and awarded $30 million.

Legal perspectiveIn theory, a pre-existing damage defense can be successful when the fetus’s well-being is questionable before admission, fetal movement is decreased, or the fetal heart rate is flat with no decelerations on admission. The caregivers, however, must show that there was no ongoing damaging asphyxia after admission and that the patient’s management was timely. If a pre-existing fetal injury is suspected, evaluation of fetal oxygenation status is necessary. If the results do not provide reassurance that there is no ongoing damaging hypoxia, emergency delivery must be accomplished in timely fashion. In this case, we do not know the actual FHR pattern on admission. But the standard of care is a 30-minute “decision to incision” time for emergency C/S, and not the almost 2 hours that elapsed in this case, beginning at 7:42 pm when the decision was made. Even if the neurologic injury predated the admission, it would have been difficult to prove that no damage occurred during the delay in starting the emergency C/S.

The woman claimed that she continued to have chronic abdominal bloating and pain and was unable to continue working. She sued, alleging that the physician failed to tell her of any possible problems during the surgery and also failed to inform her of the risks associated with the procedure.

The physician contended that a bowel puncture is a recognized risk of the surgery about which the patient was informed and claimed that she and her husband had been told of the possible injury. He also pointed out that there was no delay in the repair and that the woman had suffered no harm from the incident.

The jury returned a $446,000 verdict, including $347,600 in non-economic damages, $53,400 in economic damages, and $45,000 for loss of consortium to the husband.

No operating room available for emergency C/S A pregnant woman at term went to an Illinois hospital to deliver her first baby. She was placed on an external fetal monitor, which showed minimal viability and variable decelerations for 2 hours. During that time, the nurses allowed the obstetrician to use the only operating room in the labor and delivery suite for an elective tubal ligation. Shortly thereafter, the FHR deteriorated and the nurses discovered a prolapsed umbilical cord. Another 20 minutes elapsed before an operating room and personnel could be secured for an emergency C/S. The infant was hypoxic. Now age 12, he has cerebral palsy, spastic quadriparesis, no bowel or bladder control, and cannot talk.

The woman sued the physician and hospital, which denied any fault and claimed that the infant had pre-existing fetal inflammatory response syndrome. The obstetrician settled for $1.5 million and a jury returned a $12.5 million verdict against the hospital.

Blood transfusion needed for bleeding after D&CA Maryland woman in her mid-40s underwent an elective outpatient D&C performed by her gynecologist. She was discharged the same day. The next day, the woman called her doctor with a complaint of bleeding and was advised that it was normal. When her symptoms worsened with excessive bleeding, she was taken by ambulance later that day to another hospital where she was given 2 units of blood and discharged home.

The woman sued her gynecologist and the hospital, claiming that they failed to adequately assess her bleeding.

The defendants argued that the bleeding the patient experienced before discharge was normal. The physician claimed that the patient’s description of her bleeding was within normal limits and that she was told to call back if her symptoms persisted, but called an ambulance instead. A defense verdict was returned.

Failure to prevent premature birth of twinsA Washington woman delivered twin boys at 24 weeks’ gestation. Between 24 and 48 hours later, both infants died due to prematurity and respiratory distress syndrome. The woman sued the physician, alleging failure to order a urinalysis and culture at the time of her initial prenatal evaluation, to order a urinalysis or treatment for asymptomatic bacteria detected on a urine dipstick, to evaluate her for preterm labor when she was in his office, and to order appropriate medications to prevent the preterm delivery.

The physician maintained there was no negligence and that the delivery could not have been prevented. A $225,000 verdict for the woman was returned.

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