Legally Speaking

LEGALLY SPEAKING
Risk management in obstetrics and gynecology

'Extremely' excessive traction claimed in brachial plexus injury

During delivery by an Alabama obstetrician in 1998, a baby sustained a brachial plexus injury secondary to shoulder dystocia. Now age 3, the child has a permanently weakened arm despite several attempts at surgical repair.

The parents sued, contending that the physician and the nurses were negligent and caused the injuries by failing to properly monitor the delivery process and, in an attempt to free the shoulder, applied excessive fundal pressure. The plaintiff's expert opined that tremendous traction—which he characterized as "extremely excessive"—was placed on the boy's shoulder. Although he acknowledged that this simple fact alone did not constitute negligence, he alleged that the severe degree of injury did. The expert further opined that the injury could have been averted with conversion of the delivery from vaginal to cesarean section. The parents claimed damages for past and future economic and noneconomic loss.

The obstetrician contended that his care was proper during the delivery in that he recognized the shoulder dystocia and performed appropriate maneuvers to free the infant, which were successful during the emergency delivery. The defendants' experts conceded there was an injury, but linked it to the rapid labor and not the alleged excessive pressure. Moreover they maintained, a C/S was not indicated. The nurses contended they had applied suprapubic and not fundal pressure. The mother countered this version, remembering that nurses had pressed against her stomach. As to the claims against the nurses, the judge concluded that the plaintiff's expert, a physician, was not competent to testify about the nursing standard of care, and granted a defense motion for summary judgment. The jury returned a verdict for the defense.

Legal perspective

In malpractice cases involving a shoulder dystocia delivery, a claim of excessive traction almost always is made because it connects the person delivering the baby to the injury suffered. The plaintiff's expert here went even further, claiming that the traction must have been "extremely excessive" because the injury was so severe, and thus it indicated negligence by the physician. Fortunately the jury understood that the severity of an injury does not automatically equate with the degree of negligence, if any.

Fundal pressure becomes an issue in many shoulder dystocia cases. As in this case, it is common for the patient to claim that the nurses used fundal pressure after delivery of the head, and a jury may find it reasonable that a woman would have a clear memory of her own delivery while the nurse and physician might not recall the actual case. After a shoulder dystocia is encountered, it would be wise to include in the delivery note mention of discontinuation of fundal pressure and use of suprapubic pressure to assist in delivery of the shoulder.

Earlier C/S would have prevented neonatal brain damage

In 1995, a 38-year-old California woman in labor went to a hospital 4 days after her due date. There had been no significant problems during her prenatal course. The woman's membranes spontaneously ruptured and moderately stained amniotic fluid was noted. At 6:46 am, a prolonged deceleration was noted, which lasted for 5 to 6 minutes. At 7:17 am there was another prolonged variable deceleration and the fetal heart rate became more nonreassuring. At 10:10 am the decision was made to perform an emergency C/S. Delivery occurred at 10:32 am and the infant had Apgar scores of 2, 4, and 6, at 1, 5, and 10 minutes. A cord blood gas revealed a pH of 7.02, with base deficit of 6.4. At approximately 1 year of age, the child was developmentally delayed and she was subsequently diagnosed with CP. At the time of trial, the girl was age 6 and her cognitive function was normal, but she suffers from spastic diplegia.

A lawsuit was filed, claiming that the standard of care required that a decision to perform C/S should have been made no later than 9:30 am and would have resulted in delivery of the baby 30 to 45 minutes sooner, thereby averting brain damage.

The obstetrician argued that when to perform C/S was a medical judgment and it was within the standard of practice to make the decision at 10:18 am. He further contended that the cord blood base deficit indicated there was no significant metabolic acidosis, and that the infant did not suffer brain damage due to any event that occurred during labor and delivery. There was disagreement on the extent and future functionary needs of the child. This case settled for $700,000.

Failure to recognize bowel perforation

A 44-year-old woman went to her physician complaining of pelvic pain, which was determined to have been caused by a benign growth on her ovary. During laparoscopic surgery, the physician allegedly perforated the bowel and closed her without diagnosing the injury. The patient returned the next day with severe abdominal pain, distention, and nausea. For more than 3 days, the physician allegedly failed to order any diagnostic testing to rule out bowel perforation. On the fourth day, another physician immediately diagnosed the patient with peritonitis. The woman underwent an emergency colon resection with colostomy and developed acute respiratory distress syndrome and sepsis and suffered a stroke. After a lengthy hospitalization, her slow rehabilitation included three additional surgeries.

The Ohio woman sued the physician who performed the laparoscopy and a $900,000 verdict was returned.

Maternal and fetal injuries following shoulder dystocia delivery

In 1996, a Colorado woman was admitted to a medical center for delivery of her third child. Her first two children had been delivered by C/S due to failure to progress in labor. During the woman's third pregnancy, her obstetricians advised her that she was a candidate for a trial of labor. She was admitted at 3:32 am and was monitored throughout the day. At 10:45 pm she was examined by one of her obstetricians, who noted that if her labor failed to progress, they would move toward operative delivery. At 12:40 am the nurse called the physician in the call room to report that the FHR showed severe variable decelerations. The obstetrician evaluated the patient and determined that expeditious delivery could be done vaginally. A shoulder dystocia was encountered and after several maneuvers, the baby was delivered. The child suffered severe hypoxia and has CP, spastic quadriplegia, mental retardation, and reduced life expectancy. The mother sustained severe injuries, including a cystocele, rectocele, and enterocele, which necessitated a hysterectomy and several reconstructive surgeries.

In the lawsuit that followed, the hospital was sued and it was alleged that the fetal status was questionable after 10:45 pm, and that from 11:24 pm to 12:40 am the nurse failed to observe that the baby was becoming hypoxic. The parents alleged that this hypoxic state and the shoulder dystocia caused severe brain damage.

The defense claimed that there was no significant deterioration in the FHR or the condition of the baby during the time the doctor was in the call room. They asserted that the cause of injury to the child and mother was the physician's decision not to perform a C/S but to proceed with vaginal delivery, resulting in the shoulder dystocia. The jury returned a verdict for plaintiffs and awarded the child $12.4 million. They attributed 60% negligence to the nurses and 40% to the obstetricians, who were designated as non-parties. The jury also awarded the mother $1.78 million, with the medical center nurses 40% at fault and the obstetricians 60% at fault for the mother's injuries.

Department editor Dawn Collins, JD, is an attorney specializing in medical malpractice in Long Beach, Calif. She welcomes feedback on this column via e-mail to DawnCF@aol.com.

Many times, the factual information available about the cases presented here is incomplete. Thus it may not always be possible to discuss all of the elements of negligence or nuances involved in a given situation. The outcomes described also may not reflect the current standard of care or the best practice in obstetrics and gynecology. What these cases do represent are the types of clinical situations in the specialty that typically result in litigation and the variation in jury verdicts and awards across the nation. Some of the cases described have merit but many do not.

— Dawn Collins, JD

Dawn Collins. Legally Speaking.

Contemporary Ob/Gyn

2003;1:14-16.