Legally Speaking: Can you win a case involving premature twins?

April 1, 2008

Brain-damaged baby cases often pose the most significant challenges to defendant physicians and defense attorneys alike. With that in mind, sometimes the most we can hope to achieve is a palatable resolution of the case.

Key Points

THE FACTS

The patient was a G3, P2 who had been considered high-risk by the hospital's prenatal clinic because she had experienced fetal distress and a subsequent cesarean section during her second delivery. In addition, for the current pregnancy, she was carrying twins.

AT THE TIME OF HER INITIAL prenatal visit on March 8, the 29-year-old patient was given an estimated delivery date of October 19. On June 30, 24 weeks by dates and 25 weeks by ultrasound, she complained of "tightening in her abdomen" that persisted through July 11. At that time, she was referred for nonstress testing, which demonstrated uterine "irritability," so she was referred to the hospital center for admission. She was managed on the Labor and Delivery unit for a few hours with subcutaneous terbutaline injections, which resolved the irritability and contractions. There were no cervical changes and the membranes remained intact. The patient was kept on bed rest in the hospital center for the week, and repeat tocodynamometry revealed no contraction pattern. The plan was for her to continue on bed rest at home and take oral terbutaline every 3 hours.

At 7:30 AM on the morning of August 15, "spontaneous variables" were noted on fetal monitoring. Fetal heart rate was 110 to 140, and the contractions were mild and irregular. At 9:15 AM, occasional variable decelerations were noted with good return to baseline and good variability. More frequent, stronger contractions (every 2–3 minutes) were noted, and an examination of the cervix revealed 2 cm of dilation and 80% effacement with intact fetal membranes. The rate of MgSO4 infusion was increased from 0.5 to 2.0 g per hour.

At 2:20 PM, the covering nurse reported a decrease in the FHR (the report did not specify twin "A" or twin "B") to 90 to 100 bpm for at least 2 minutes. The chief resident arrived shortly thereafter and undertook an U/S that reflected two viable FHRs. Thereafter, there was a 6-minute drop in the FHR (which twin's rate undetermined) to 90 to 100 bpm. The FHR tracings displayed poor variability at this point as well. At 3:00 PM, the chief resident had the patient transferred to a delivery room where a repeat U/S was performed that indicated twin "A" had an FHR in the 90s and twin "B" had an FHR of 140.

At 3:15 PM the resident entered a note indicating that both FHRs were now in the 130 to 150 range, but in light of bradycardic episodes and late decelerations as well as occasional contractions, the decision had been made to deliver. He noted that although there would be complications associated with prematurity, the fetal heart responses indicated uteroplacental insufficiency and the slow recovery could indicate poor fetal reserves. Due to the high risk of fetal demise and the unlikelihood that the infants would tolerate the labor process, cesarean delivery was recommended.