Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.
When the obstetrician encountered a tight lower uterine segment band around the fetal neck, the complicated delivery that followed eventually led to the baby's demise. Why did the defense settle?
The patient, then 29 years of age, initially presented to the ED of the defendant hospital on August 1 complaining of abdominal discomfort. Her work-up indicated she was pregnant and she was referred to the prenatal clinic.
Dr. "R" saw the patient again on November 12 and noted that she "desires RCS [repeat cesarean section]." By this time, the patient had gone for her ultrasound and her EDC was revised to February 7. She returned to the clinic on December 2 and Dr. "R" noted that he was going to schedule a repeat CD at 39 weeks if she continued on her present course. If, however, signs and symptoms of preeclampsia developed, then the plan was to do the cesarean at 37 weeks. He continued to follow her on December 16 and December 30.
On January 9, the patient presented to the labor and delivery floor complaining of vomiting, abdominal pains, and body pains. She was placed on a fetal monitor; the fetal heart was reactive and there was no evidence of contractions. The ob team suspected that she had a viral syndrome and was dehydrated. As a result, she was given fluids and discharged. She missed an appointment on January 12 but was subsequently seen on January 16 and had no complaints.
On January 18, she again presented to the L&D floor complaining of uterine contractions since 10:00 AM. The nursing notes indicate that she was admitted at 6:20 PM, that an external fetal monitor was applied, and the fetal heart was in the 140s. At 7:05 PM, a midwife's vaginal examination indicated that she was 1 cm dilated, 100% effaced, and the fetus at –1/0 station. Twenty-five minutes later, the patient was seen by Drs. "S" and "B," who explained the risks and benefits of a trial of labor versus a CD. Apparently at this point in time, the patient had changed her mind and was now requesting a trial of labor. At 9:20 PM, another vaginal exam was performed, revealing no change in her status. As a result, labor warnings were given to the patient by Dr. "B" and she was discharged home. Dr. "B" has an attending note documenting that the patient initially desired an elective repeat CD but was now requesting a trial of labor. Furthermore, her note set out in detail an extensive informed consent in regard to this decision.
The patient returned to the hospital at about 1:25 AM on January 19 complaining of lower abdominal pains since 11:00 PM. She denied any rupture of her membranes and reported positive fetal movement. She was attached to an external fetal monitor, which showed a reactive fetal heart rate. At 1:30 AM, a vaginal examination was performed and she was 3 cm dilated, 90% effaced, and at–3 station. At 2:30 AM, she was seen by Dr. "B," who discussed pain management. A spinal epidural was completed at 3:13 AM and Dr. "B" performed another vaginal examination at 3:30 AM. She found the patient to be 4 cm dilated, 100% effaced, and at–1 station. At 5:20 AM, she had progressed to 5 to 6 cm. However, the fetus remained at–1 station. At 6:45 AM, Dr. "B" re-examined the patient and there appeared to be an arrest of labor. As a result, her membranes were artificially ruptured; the fluid was described as clear.
Two hours later, at about 8:45 AM, Dr. "F" saw the patient and noted that she had made some progress, dilating to 6 to 7 cm with the fetus at 0 station. Furthermore, during this period of time, the fetal heart tracings were described as reassuring. The next examination by Dr. "F" at 12:15 PM revealed no change. Accordingly, an intrauterine pressure catheter was placed, and at 12:40 PM, oxytocin was started at 1 mµ. This was increased to 3 mµ at 2:00 PM and 4 mµ at 4:00 PM. During this time, the nursing staff made Dr. F aware of variable decelerations down to 80–90s. With this in mind, the patient was placed on her left side and at 2:31 PM, given oxygen.
At 4:00 PM, the patient had a fever of 100.4º and fetal tachycardia with a baseline of 160 to 170 and accelerations to 200s. Furthermore, variable decelerations were continuing and as before, Dr. "F" was notified. Dr. "F" was at the bedside at 4:10 PM and found the patient was dilated to anterior lip and the fetus was at +1 station. An acetaminophen suppository was given for the fever and in addition, the oxytocin was increased to 5 mµ. At 4:30 PM, positive accelerations to 200s were noted with variable decelerations to 100–140s with contractions. Five minutes later, at 4:35 PM, amnioinfusion was initiated. The nurses continued to describe fetal tachycardia at 4:45 PM and finally, at or about 4:46 PM, a decision was made for a repeat CD. At this point, the oxytocin was turned off and the patient was taken to the delivery room.
With respect to the delivery, Dr. "F" dictated the following note:
After initiating amnioinfusion, the fetal heart rate was noted to be in the 180s with good beat-to-beat variability. A decision was then made to after [sic] informed consent was obtained, the patient was taken to the Operating Room at 4:45 PM.... A Pfannenstiel incision was made at 17:05 after the fetal heart was noted to be in the 170s.... The uterus was then incised in a low transverse fashion at 17:12. After initial attempt to deliver the fetus without success, an attempt was made to push the fetal head upwards vaginally again without success. Noted was marked contraction of the uterus with a tight lower segment band around the fetal neck which prevented us from reaching the fetal head from the abdominal site and which also prevented fetal ascent while pushing from vaginal site. The uterine incision was extended vertically but still no success. Nitroglycerine IV was given and again no success. So a decision was made to incise the uterus vertically downwards...the lower segment was very thick which was consistent with the findings of the 'lower uterine segment band' around the fetal neck. The fetus was then finally delivered and was given to the awaiting pediatricians who immediately started resuscitation of the newborn....
The infant's chart indicated that there was a delay in extracting the infant from the uterus for about 7 minutes. The note indicates that the obstetric attending advised them that the uterus contracted on the infant and they were unable to get the baby out. The infant's Apgars at birth were 0, 0, 0, 0, 0, 2, at 1, 5, 10, 15, 20, and 25 minutes, respectively. The initial blood pH at 6:15 PM was 6.99 with a base excess of –21. The infant had "profound perinatal asphyxia, severe hypoxic ischemic encephalopathy." From the beginning, the child was noted to be seizing and the prognosis was extremely poor for neurologic function and survival. The medical team discussed a DNR order with the family, as well as the possibility of removing the infant from respiratory support. They consented to the former on January 23. By January 26, neurology reported that the infant had no evidence of cortical function. Despite several discussions with the parents, they were having trouble coming to grips with the situation and indeed, they rescinded the DNR order. By February 4, however, the infant was found to be clinically brain dead and the family eventually agreed to withdraw intensive care. On the evening of February 4, the infant expired.