Legally Speaking: Careful charting protects ob/gyn in case of infant’s death

October 1, 2013


A 30-year-old Illinois physician received prenatal care from an obstetrician for her first pregnancy in 2008. When low amniotic fluid and lagging fetal growth were noted in her third trimester, she was referred to a maternal-fetal medicine (MFM) specialist. The MFM recommended induction of labor, for which the patient was admitted at 39 weeks’ gestation. Labor progressed slowly and the obstetrician attempted to deliver the infant with the assistance of a vacuum device. After 3 unsuccessful vacuum delivery attempts, the obstetrician recommended a cesarean delivery because she did not think the baby would deliver vaginally. The patient did not consent to the cesarean delivery until 2 hours later, after another failed attempt at vacuum delivery. The infant required resuscitation at birth with a full code for more than 20 minutes. The newborn was determined to be anemic after loss of nearly a third of her blood volume and was diagnosed with a subgaleal hemorrhage and had hypoxic ischemic encephalopathy, disseminated vascular coagulation. At age 3 days, she suffered a myocardial infarction, after which she had no brain activity. At 5 days of age, the infant was removed from life support and died. An autopsy found possible hypereosinophilic syndrome and indicated it to be a concurrent cause of death.

A lawsuit was filed on behalf of the infant, claiming that the obstetrician should have insisted on a cesarean delivery at the time she first recommended it, and that she failed to fully inform the patient of the risks, benefits, and alternatives to use of the vacuum extractor. The patient said she would not have consented to use of the vacuum if she had known the risks to the infant. The argument also was made that the eosiniphilic infiltration into several organs was due to the resuscitation efforts.

The obstetrician argued that the patient did not consent to the recommended cesarean delivery after the first attempt at vacuum delivery, that the vacuum was used appropriately, and that eosinophilia was the cause of the infant’s death.

The verdict

A defense verdict was returned.

Legal perspective

In most malpractice cases involving the use of forceps or vacuum, the issues are the indication for use of a device and the application of the device itself. Occasionally, it is disputed that the injury was caused by the device. In this case, however, the parties stipulated that the bleeding was likely caused by the vacuum device. The major issue, then, is whether the physician should have “strongly suggested” and then insisted on the cesarean delivery at the time of the first failure of the vacuum. The patient, her husband, and 2 other family members present at the time testified that the obstetrician simply posed the possibility of performing a cesarean delivery. The patient claimed that she wanted what was best for the baby and never refused a cesarean delivery.

The obstetric nurse, however, testified that the patient delayed consenting to a cesarean delivery because she felt the baby was so close to being delivered vaginally. Fortunately, the physician noted in the chart that she recommended cesarean delivery at the first vacuum failure and documented that the patient and her husband were "adamant about vaginal delivery." The physician also informed the patient of exactly what she was writing in the chart.

Failure to timely perform cesarean delivery blamed for ADHD and motor difficulties

A 37-year-old Connecticut woman was at term with her first baby in 2006 when her membranes ruptured and she went to the hospital. She was managed by a nurse-midwife, who called an obstetrician when some bleeding was noted. On arrival, the obstetrician noted that the patient was completely dilated and decided to attempt vaginal delivery with forceps. She could not place the forceps and made an unsuccessful attempt at vacuum-assisted delivery. Consequently, a cesarean delivery was performed. The newborn received care in the neonatal intensive care unit. Four to 5 years later, the child was diagnosed with attention deficit-hyperactivity disorder (ADHD), and has some motor difficulties, including problems with walking, balance, and coordination.

The woman sued those involved with the delivery, claiming that the obstetrician failed to respond to evidence of fetal distress and inappropriately attempted an operative vaginal delivery, which delayed the emergency cesarean delivery. She claimed that this delay caused the fetus to suffer brain injury that resulted in later difficulties.

The physician and hospital contended there was no evidence of fetal distress and the fetal heart rate (FHR) tracing was stable; the bleeding was not substantial; and the attempt at vaginal delivery took very little time, during which the operating room was prepared.

The verdict

A defense verdict was returned.

Timing of fetal injury disputed

In 2001, a Wisconsin woman received prenatal care from a nurse-midwife. When she was overdue, misoprostol (Cytotec) was given to induce labor. She was admitted to the hospital around 2 pm in active labor and 6-cm dilated. Dilation stopped and the nurse-midwife placed the patient in a birthing tub, but contractions continued to slow, so oxytocin was started. The patient was not fully dilated until 10:30 pm. Around midnight, the FHR pattern showed accelerations with every contraction. The patient continued to push until 1:30 am, when the FHR was removed and she was again placed in a birthing tub. The nurses auscultated the FHR, which was recorded as normal.

On delivery about 30 minutes later, the infant’s heart rate (HR) was 80 beats per minute (bpm). She did not breathe spontaneously and her Apgar scores were 1, 3, 3, and 5. A cord blood gas pH was 7.16. An attending physician was called and arrived about 20 minutes later. The infant was resuscitated, intubated, and transferred to another hospital. She was significantly acidotic, but a computed tomography scan performed at 56 hours of life was read as normal. Magnetic resonance imaging at 9 months was also read as normal. The child suffers from cerebral palsy, requires a walker, and has arm and leg impairments and significant cognitive deficits. She requires 24-hour assistance.

A lawsuit was filed. Although the parties did not dispute that the infant suffered an hypoxic/ischemic injury, they disagreed about when it occurred. The patient claimed the injury occurred during delivery. She argued that the oxytocin use was excessive; the FHR strip was actually recording the mother’s HR accelerations while pushing; and that the pH was from the vein, not the artery. The plaintiffs also disputed the normal report from the MRI, which their expert said indicated significant brain injury.

The physician and hospital claimed the injury occurred in utero, prior to delivery. They pointed to the normal pH reading and brain scans.

The verdict

The jury returned a verdict for the child, finding the nurse-midwife 80% at fault and the hospital 20% at fault. They awarded $13.5 million to the child and $100,000 to the patient, and added $100,000 in past medical expenses to the total.

Bowel perforations during laparoscopy

A 48-year-old Arizona woman sued her gynecologist after she underwent laparoscopic surgery for treatment of pelvic pain. The woman claimed that the physician failed to diagnose and repair bowel perforations that occurred during her surgery. When the perforations were diagnosed, she had already developed peritonitis and had a prolonged infection. She also claimed that the initial repair of the perforations failed, requiring a small-bowel resection. She developed short gut syndrome with chronic diarrhea. In addition, she blamed the antibiotics used to treat her infection for a 90% loss of vestibular function in the bowel.

The physician denied any negligence in performance of the initial laparoscopy. He contended that the perforations might not have been detectable during surgery and they had enlarged by the time of pathology examination. He also argued that the small-bowel resection was necessary because of the erosive effect of fecal material on the bowel after perforation occurred.

The verdict

A defense verdict was returned.

Failure to confirm pregnancy termination alleged

A Maryland woman in her mid-thirties went to a women’s health clinic to confirm a pregnancy. Once the pregnancy was confirmed, the patient decided to terminate it and was prescribed the drug mifepristone (RU-486). She then had a follow-up exam at the clinic, during  which the physician confirmed the termination by physical exam; . no ultrasound (U/S) was performed. The patient contacted the clinic a month later, concerned that she was still pregnant. She later claimed that she was told not to worry and to wait another 8 to 12 weeks before following up. She returned to the clinic when she felt movement and an U/S showed a 21-week gestation with a normal-appearing fetus. At 25 weeks she went into premature labor, delivering a fetus with multiple congenital deformities due to the RU-486. The infant died 40 minutes later.

The woman sued the clinic, alleging negligence in failure to perform an U/S following the use of RU-486, and/or to order a blood test to confirm termination of the pregnancy. Additionally, she claimed that the follow-up appointment should have been with the original physician because the physician she saw had never prescribed the drug and lacked experience with its administration and follow-up. She also alleged negligence in advising her that at 21 weeks’ gestation that it was too late for termination, despite the likelihood of the child having multiple birth defects, and claimed pain and suffering for herself and the infant.

The physicians maintained that conducting an U/S to determine if the pregnancy had been terminated was not the standard of care and that the patient assumed the risk of the drug not working when she took the medication. The second physician claimed that he advised the patient to follow up with the original doctor, but the patient denied this to be true.

The verdict

A verdict for the patient and child was returned and $250,001 was awarded. Most likely the jury awarded the $250,000 for the woman’s pain and suffering and the $1 was for the premature infant’s pain and suffering for 40 minutes. 

Ureter injury during emergency hysterectomy

A 34-year-old woman underwent a cesarean delivery in 2007 at a New York hospital. A tubal ligation was attempted after delivery of the infant, but uncontrollable, life-threatening hemorrhaging occurred, requiring hysterectomy. Two days later the patient was diagnosed with hydronephrosis, which led to recognition of a ureter injury. She underwent a nephrostomy and also developed a pulmonary embolism during this hospitalization. Nine months later, she underwent repair of the ureter and insertion of a stent. The stent was removed a few months later and the nephrostomy was then reversed.

The woman sued those involved with the hysterectomy, claiming that it was not performed properly and the initial ureteral injury was not diagnosed in a timely manner. She claimed that prompt diagnosis would have prevented the need for most of the subsequent surgeries she required.

The physicians denied any negligence in performance of the hysterectomy, which was emergently required to save the patient’s life, and argued that ureteral injury is a known complication of that procedure.

The verdict

A defense verdict was returned.

Did excessive traction cause Erb’s palsy?

In 2001, a New York woman’s child was delivered by a nurse-midwife in a hospital. The infant was subsequently diagnosed with Erb’s palsy. The woman sued the nurse-midwife and the hospital, claiming that the injury was caused by a failure to properly manage a shoulder dystocia and that the nurse-midwife used excessive traction during delivery.

The nurse-midwife argued that no shoulder dystocia had occurred during delivery and excessive traction was not used. She also contended that the palsy had resolved, with the infant able to raise the arm above the shoulder. The arm’s length and reflexes were also not affected.

The verdict

A defense verdict was returned.

Bowel perforation during D&C

A 65-year-old woman underwent a dilation and curettage (D&C) in 2006 to rule out cancer. The procedure was performed by her gynecologist and a general surgeon in a New Jersey hospital. The patient’s uterus and small bowel were perforated during the D&C, and she underwent a second procedure to repair the damage.

She sued both physicians, alleging negligence in the performance of the D&C, necessitating the second operation.

The general surgeon settled for a confidential amount prior to trial. The case went to trial against the gynecologist, who denied any negligence and contended that the injuries were known complications of the procedure.

The verdict

A defense verdict was returned.

Delay in delivery results in brain damage

A Massachusetts woman went to the hospital in 2004 with contractions at 40 weeks’ gestation. She was admitted and FHR strips were reassuring. When her membranes ruptured, a small amount of meconium was noted. The FHR was still normal. About 2 hours later the nurse and nurse-midwife noted some decelerations of the FHR, but they were not repetitive and the FHR continued to be reactive.

About 30 minutes later, the patient began pushing and the FHR dropped to 90 bpm during the contractions. A second midwife arrived to assist, as the first one was less experienced. The patient was given oxygen , her position was changed, she was given an IV fluid bolus. Thirty minutes later the decelerations became prolonged and in the 80 bpm range, and a “code white” was called twice while a physician was en route. The attending obstetrician attempted delivery with a vacuum extractor, which was unsuccessful, so an emergency cesarean delivery was performed. The infant’s Apgar scores were 2, 3, and 3, with a cord pH of 6.66. She developed seizures within the first few minutes of life. Imaging studies revealed evidence of global hypoxic-ischemic encephalopathy. The child could not walk, talk, or sit unsupported at age 8 years. She has a gastrostomy tube, is cortically blind, and requires seizure medication.

The verdict

A $5 million settlement was reached against the nurse and nurse-midwife.

Failure to test parents for platelet antibodies

A 32-year-old California woman became pregnant with her third child and sought prenatal care at a clinic operated by the federal Department of Health and Human Services. She informed the nurse practitioner at the clinic that she had 2 children who had been diagnosed with low platelets after birth, but who were healthy and had no problems. She was seen at the clinic in 2008 until she was at term. She was then admitted for induction of labor and delivered vaginally. The infant had Apgar scores of 8 and 8, and the platelets were found to be low at 26,000/μL. He was transferred to another hospital the next day, where he was diagnosed with hydrocephalus and neonatal alloimmune thrombocytopenia. The infant suffered a massive intracranial bleed, which caused severe neurological injuries and brain damage. A shunt was placed. The child now has significant cognitive delays, cerebral palsy, and mild developmental delays. Subsequent testing of his parents showed that they had different genotypes for platelet antibodies.

In the lawsuit that followed, the parents claimed that because they had 2 children with low platelets, they should have been tested for platelet antibodies during the pregnancy. They alleged that a prenatal diagnosis of alloimmune thrombocytopenia would have allowed for treatment with gamma globulin, which would have prevented the intracranial hemorrhage and the subsequent neurological injuries.

The verdict

A $4.8 million settlement was reached, paid in the form of $2 million in cash and the purchase of a $2.8 million annuity.

Chorioamnionitis caused infant’s brain damage

In 2008, a California woman at term was admitted to a hospital for labor and delivery. Labor was prolonged and a cesarean delivery was promptly performed after fetal distress was recognized. The child had brain damage and is now ventilator-dependent. The patient suffered chorioamnionitis associated with the prolonged labor.

The woman sued those involved with the labor and delivery, alleging negligence in failure to perform the cesarean delivery in a timely manner.

The obstetrician and her group settled for a confidential amount and the matter ultimately went to trial against the hospital. The contention was that the nursing staff was not qualified to read FHR tracings and they failed to alert the attending or on-call physician about the fetal distress. The hospital argued that the brain damage was due to the chorioamnionitis, which could not have been predicted or prevented prior to birth.

The verdict

A defense verdict was returned for the hospital. A post-trial motion is pending.