LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Shoulder dystocia management on video

A New Jersey boy suffered Erb's Palsy during delivery in 1997. His parents sued the obstetrician involved, alleging the physician used excessive force to deliver the infant, causing the brachial plexus injury. The boy's right arm now is 1 in shorter than his left arm, and he cannot fully extend, rotate, or raise the arm. At age 3, he was diagnosed with leukemia, which led to postponement of surgery and other therapy to improve shoulder function. His chemotherapy recently ended and he will now proceed with interventions for the Erb's palsy.

During the trial, the jury was shown a videotape of the boy's entire delivery. On the tape, the physician was seen pushing down on and twisting the infant's head and then exerting more downward pressure in an attempt to free the shoulder and deliver the boy. The tape also showed that after delivery, the obstetrician lifted the infant's arm, which fell limply to his side.

The obstetrician's delivery notes conflicted with the tape, failing to mention the second use of downward traction and the limp arm. The physician also claimed he pushed lightly with his fingers on the head, although the camera shows him pushing down with both hands. The defense argued the injury was caused in utero, and tried to downplay the severity of the resulting palsy. The jury awarded the boy $1,424,317 ($350,000 for past pain and suffering, $500,000 for future pain and suffering, $200,000 for future lost earnings, plus $374,317 for prejudgment interest).

Legal perspective

Many hospitals still wrestle with whether to allow videotaping of deliveries. When a malpractice suit is brought, such a videotape can sometimes aid the defense, but in other cases, it can show that care was below the standard or create suspicion in the jurors' minds about the accuracy of the records. Even if care is not below the standard, a recording allows for retrospective "second-guessing" and any suspicions raised in the jurors' minds may obscure the real issues.