Legally Speaking

June 1, 2013

Excessive traction blamed for brachial plexus injury; bowel injury after laparoscopy; prolonged second stage blamed for CP; failure to perform timely cesarean blamed for child’s developmental delay; uterus perforated during hysteroscopy; severe IUGR not detected in high-risk pregnancy


Excessive traction blamed for brachial plexus injury

A Michigan woman went to a hospital for the delivery of her child. A shoulder dystocia was encountered and the infant was subsequently diagnosed with a brachial plexus injury of the right shoulder. This included a nerve avulsion, fractured clavicle, and permanent disfigurement. The child underwent surgery, physical therapy, and occupational therapy.

In the lawsuit that followed the delivery, the patient claimed that fundal pressure and excessive downward lateral traction were used to free the shoulder, causing the injury. The patient also argued that the fetal heart rate tracing showed that the fetus was well oxygenated, which would have allowed time for other maneuvers that should have been employed before applying lateral traction.

The physician claimed that the injuries occurred before or while the fetus progressed through the birth canal and that the head was delivered while the shoulder was impacted on the pubic bone. A $3.07 million verdict was returned.

Legal perspective

The issues that arise in malpractices case involving a brachial plexus injury usually focus on whether the shoulder dystocia could have been predicted and prevented and how it was managed during delivery. A claim of excessive traction to the head is almost always made, because it ties the person performing the delivery directly to the injury. In this case, we do not know what was in the delivery note, but a claim that fundal pressure was used is often supported by a lack of documentation either way. Therefore, it is prudent for obstetricians to include in the dictated note or checklist that fundal pressure was not used or was discontinued, and that suprapubic pressure was applied. Documentation stating what maneuvers were performed-and also that no further traction was applied to the head until after a specific maneuver was used to free the shoulder-may aid in the successful defense of shoulder dystocia cases.

Bowel injury after laparoscopy

In 2009 a Mississippi woman underwent an exploratory laparoscopy performed by her gynecologist. Two days later the patient returned to the hospital with abdominal pain. A CT scan showed an apparent bowel injury, but no surgical consult was ordered. The bowel injury was ultimately diagnosed and repaired, but the patient required 8 additional operations due to complications.

The patient sued the gynecologist, alleging negligence in injury to the bowel with the trocar and claiming that the gynecologist cut blindly when he initially had difficulty accessing the abdomen. The patient also claimed that a surgical consult should have been obtained following the CT scan and that surgery should have been performed in a more timely manner.

The physician claimed that while bowel perforation is a known complication of this procedure, there was no perforation during the operation, but that it developed later. He also claimed that the patient’s symptoms did not suggest a perforation and further, any delay did not affect the patient’s outcome. The verdict was in favor of the defense.

Prolonged second stage blamed for CP

A Virginia woman went into labor at home, intending to have a home delivery with a midwife. She began pushing when completely dilated and the head was at 0 station. More than an hour later the head was still at 0 station, and the midwife decided to send the patient to the hospital. She called an obstetrician to inform him that the patient was arriving and gave him all the pertinent information. At the time of transfer the patient had been pushing for almost 2 hours with no progress.

An hour after the patient’s arrival at the hospital, and epidural was placed. The obstetrician examined her about  90 minutes after that, at which time the woman had been in the second stage for more than 5 hours and was on oxytocin. The obstetrician looked at the fetal heart rate (FHR) tracing, placed an internal electrode, and delivered the baby vaginally about 4 hours after admission to the hospital. The infant’s Apgar scores were 2, 4, and 4. He suffered seizures, had an abnormal EEG, and showed evidence of multi-organ injury. Magnetic resonance imaging performed 2 days later showed damage to the cerebral peduncles, basal ganglia, bilateral thalamus, and corpus striatum. The child now has choreathetoid cerebral palsy with severe motor impairment in both gross and fine motor functions in all 4 extremities, impairments in speech, and permanent cognitive delay. He has feeding and  tracheostomy tubes.

The woman sued the obstetrician, claiming that he failed to properly respond to a prolonged second stage of labor and abnormal nonreassuring FHR pattern. She also claimed that an operative delivery should have been performed at least 40 minutes before the delivery occurred. She alleged the FHR tracing continued to show repetitive deep decelerations, tachycardia, and changes in baseline. She also claimed that there was a loss of tracing for 16 minutes and that despite these findings, the oxytocin dose was increased. She blamed the infant’s brain injuries on hypoxic ischemia related to the delay in delivery. A $1.85 million settlement was reached.

Failure to perform timely cesarean blamed for child’s developmental delay

In 2003 a New York woman was admitted to the hospital in labor at term. The FHR tracing was initially normal, but after several hours, some decelerations were noted. Eventually, a prolonged deceleration of the FHR necessitated an emergency cesarean delivery. The infant weighed 8 lb, 11 oz and was subsequently diagnosed with developmental abnormalities.

The patient sued those involved with the delivery, claiming that the child’s problems were due to a hypoxic event that occurred during labor and if the cesarean had been performed earlier, she would not be injured. She also contended that an ultrasound would have shown that the infant’s weight necessitated a cesarean delivery, and further, that there was fetal distress on the FHR tracing that was not reported to the obstetrician in a timely manner.

The defense argued that the infant’s weight was not sufficient to warrant a cesarean delivery and there was no ongoing fetal distress until the prolonged deceleration. The physician claimed there was no hypoxic injury, pointing to an MRI that did not show any brain damage, and contended that the child’s abnormalities were not apparent until the second year of life, and that the developmental delays with subsequent regression suggested autism. The jury returned a defense verdict.

Uterus perforated during hysteroscopy

A 25-year-old New York woman underwent a hysteroscopy in 2008 that included removal of a uterine polyp. During the procedure, her uterus was perforated, necessitating a laparoscopy and repair of the perforation. The patient had a lengthy convalescence. She then sued the gynecologist, alleging negligence in the performance of the hysteroscopy and failure to obtain informed consent.

The physician claimed the procedure was properly performed and that uterine perforation is a known risk of hysteroscopy that can happen without negligence, and that she recognized and managed the perforation appropriately. She also contended that the patient had signed a consent that indicated a laparoscopy was possible if necessary. Although the patient claimed that the possible laparoscopy notation was added after the procedure, a defense verdict was obtained.

Severe IUGR not detected in high-risk pregnancy

In 1997, a California woman became pregnant. She had a history of a heart condition for which she took beta blockers; had recently been diagnosed with lupus; and took medication for severe migraines. Her obstetrician consulted with a maternal-fetal medicine (MFM) specialist, who, because of the risk of intrauterine growth restriction (IUGR), recommended serial ultrasounds and other close monitoring. The ultrasounds were not ordered, and at 36 weeks, severe IUGR was found and an emergency cesarean was performed. The infant suffered permanent physical and neurological injuries,  requires 24-hour care with a feeding tube and is mostly confined to a wheelchair.

A lawsuit was filed in Virginia, claiming that the patient was high risk and should have been monitored as recommended by the MFM specialist. There was a failure to recognize the severe IUGR earlier and thus, to deliver the fetus prior to injury. The patient alleged that the fetus suffered severe hypoxia and a brain hemorrhage shortly before delivery.

Almost 10 years later, this case resulted in a $28 million award. The parties argued for almost 5 years about which state law (California’s or Virginia’s) would control the type of trust for the award and finally reached a $25 million settlement.