Legally Speaking

March 1, 2008

Clinical situations that typically result in litigation and the variation in jury verdicts and awards across the nation.

Was this a failure to communicate about FHR tracings?

In 2000, a woman arrived at a California hospital for the delivery of her child. On admission, the fetal heart rate was normal and reassuring. Her membranes were artificially ruptured, and eventually late decelerations began to occur.

At delivery, the infant required resuscitation and intubation and neither a pediatrician nor a neonatologist was present during the first 8 minutes of life. During that time, an endotracheal tube was initially placed in the stomach, it was then removed and bag and mask ventilation was used until the child was transferred by helicopter to a NICU. The infant suffered severe anoxic brain injury with cerebral palsy, mental retardation, and spastic quadriplegia.

The plaintiffs also claimed that when the doctor was called, the nurses failed to provide accurate information regarding the FHR. The physician was called when the FHR dropped to 60, and the infant was delivered about 20 minutes after that call.

The woman contended that the nurses should have properly communicated the status of the fetus to the doctor and earlier preparations for an emergency C/S should have been made. Further, she alleged that the infant was injured by the improper intubation.

The hospital denied any negligence in the care and management of the patient. They also contended that the child's condition was so severe that his life expectancy was shortened. Nevertheless, during mediation a settlement was reached with the hospital that included $2.25 million for the child and $250,000 for the mother, for a total of $2.5 million.

Failure to timely perform cesarean section

In 2000 a Wyoming woman delivered by cesarean section after induction of labor. After a series of late decelerations the C/S was ordered and the infant delivered about 20 minutes later. The infant required resuscitation and was subsequently diagnosed with cerebral palsy, with speech and hearing impairments.

The woman sued those involved with her labor and delivery and claimed the C/S was not performed quickly enough, resulting in the child suffering birth asphyxia and brain damage. She claimed the nursing staff at the hospital failed to identify oxytocin-induced uterine hyperstimulation and failed to communicate clearly with the attending physician concerning fetal distress.

The defendants, on the other hand, claimed that the fetal monitoring strip was reassuring until shortly before the C/S was ordered and that the delivery was performed in a timely manner. They also said that the brain damage was not related to events during delivery but was caused by a streptococcus infection the infant had at delivery. A defense verdict was returned.

Legal perspective

In both of these cases, the plaintiffs said there was inadequate or incorrect communication regarding the FHR data between the nurses and the obstetricians. These allegations are becoming more common in lawsuits involving recognition and communication of FHR patterns. Misidentification of FHR patterns shows a lack of understanding of the underlying oxygenation status of the fetus represented by the data on the FHR monitor. Miscommunications can happen for various reasons, but a major one is not using standardized terms to describe FHR patterns among caregivers. Using standard terms that are agreed upon by all caregivers at an institution would ensure that correct information is transmitted so appropriate management could be employed. Different EFM courses, levels of knowledge, and experience regarding FHR pattern interpretation also contribute to poor communication, misunderstandings, and adverse outcomes.

This points directly to the need to institute interdisciplinary training in FHR interpretation for all those caring for patients in a given institution, including using only accepted agreed-upon terminology when communicating FHR data, ongoing jointly attended FHR monitor strip reviews, and competency validation.

Uterine rupture results in stillbirth

A Pennsylvania woman was admitted in labor for VBAC in 2003. During labor she had several episodes of hypotension, experienced nausea and vomiting three times, complained of abdominal pain, and had several nonreassuring late decelerations of the FHR. These symptoms were treated with the assumption that they were due to the epidural and the late decelerations were not enough to indicate uterine rupture.

When an internal fetal scalp electrode was placed, the obstetrician realized the external FHR monitor had been picking up the mother's heart rate and the electrode revealed an FHR less than 60 beats per minute. An emergency C/S was done and a uterine rupture found, but the infant was stillborn.

In the lawsuit that followed, the patient alleged negligence in the failure to suspect uterine rupture and perform a C/S. The defense argued the patient's symptoms were nonspecific for uterine rupture and were obscured by the ephedrine and the epidural. A $1 million plus verdict was returned.

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

Department editor DAWN COLLINS, JD, is an attorney specializing in medical malpractice in Long Beach, CA. She welcomes feedback on this column via e-mail to