"The infant’s father testified that at the birth, he arrived 2 ½ hours prior to delivery, and for the duration of that time he was able to see his son’s head."
Andrew I. Kaplan, Esq, is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP in New York City, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback to this column via email to firstname.lastname@example.org.
A G2Ab1 presented to a hospital in labor at 41 weeks, 3 days’ gestation in the early morning on November 6, 2004. Her prenatal course had been unremarkable. She reported contractions every 3–4 minutes for over a day. The estimated fetal weight by Leopold’s maneuvers was under 4000 g. The pelvic sidewall and arch were satisfactory, and a normal spontaneous vaginal delivery was anticipated.
A nurse’s note at 3 a.m. indicated the patient was Group B strep (GBS) positive. Ampicillin was given via IV piggyback and discontinued at 8:55 p.m., approximately 25 minutes after delivery.
The fetal heart rate (FHR) was initially in the 140s, with positive accelerations and no decelerations. At 3:03 a.m., a fourth-year resident performed a cervical examination and found 1-cm dilation, effacement described as “long,” and fetal station at -2. An epidural was given at approximately 6:56 a.m. Pitocin was started at 2 mu at approximately 4:18 a.m. and increased by 2 mu increments to a maximum level of 20 mu by 10:49 a.m.
From 8 a.m. to approximately 8:30 a.m., the FHR rose to 150 to 160. By 8:45 a.m., it was 160–170 and then increased to 170–180, triggering notification to a second-year resident of tachycardia. Nurses responded by changing the patient’s position and administering oxygen. Around the time of the nursing interventions for tachycardia, Pitocin was increased from 14 mu to 16 mu.
In addition, at 1:15 p.m., the nursing staff noted early decelerations, addressed them with position change, and notified the second-year resident. She performed a cervical examination, noting 2- to 3-cm dilation, effacement at 80%, and station at -1. Her impression was prolonged latent phase with mild early decelerations, although FHR tracings were reassuring overall. The second-year resident wrote another progress note at 2 p.m., documenting a cervical exam of 3/80%/-1 and “additional rupture of the forewaters,” described as clear, without meconium staining.
Nursing annotations at 4 p.m. described variable decelerations, of which the chief resident was “aware,” as well as position change, intravenous bolus, and oxygen administration. Between 4:30 p.m. and 4:46 p.m. nurses documented decelerations and the second-year resident was informed. The patient was repositioned and oxygen was administered.
At 4:45 p.m., the second-year resident documented a FHR in the 150s with positive accelerations and occasional variable decelerations and “good long term variability.” Nursing annotations documented consistently “average” variability. The patient was now in active labor, and an exam by the second-year resident found 7/90%/0 station. The plan was still for a normal spontaneous vaginal delivery. Nursing annotations at 5:56 p.m. noted late decelerations and a change in the fetal baseline, of which the second-year resident was being made aware. Long-term variability was described as “average.”
At 6:59 p.m., the chief resident noted that the patient was fully dilated and the baby was at +2 station, and she was instructed to push. Soon contractions were 2 to 3 minutes apart and at 7:20 p.m. the patient was noted to be pushing well. At 7:49 p.m., the baseline FHR was varying between 110 and 185, with variable decelerations, and with interventions of position change and oxygen. Also at 7:49, the Pitocin was turned off and never restarted.
The patient continued to push at the instruction of the chief resident. A note at 8:08 p.m. indicated that the patient was not bringing the head down. It was later noted that the head crowned for 5 minutes, leading the second-year resident to place a vacuum extractor at 8:14 p.m., although no pulls were attempted. A pediatrician was called and was present at the delivery.
Normal spontaneous vaginal delivery occurred at 8:20 p.m. Apgars were 5, 6, and 6, and the infant weighed 2970 g. The delivery note by the second-year resident described a compound presentation, with the fetal hands on the sides of the head. Difficulty was encountered in delivering the anterior shoulder, and the chief resident ultimately delivered the infant via McRoberts maneuver and suprapubic pressure, without episiotomy. The second-year resident noted a small postperineal laceration. Cord gases showed a pH of 7.25, pCO2 of 48.2, pO2 of 32.3, bicarb of 20.3, and a base deficit of 6.8.
The ob/gyn attending physician who was present at the delivery wrote that she was called to the room at 8:06 p.m.. She documented that the FHR tracings were reassuring but with variable decelerations. She confirmed that vacuum extraction was prepared but never attempted. She confirmed difficulty delivering the anterior shoulder. She confirmed the presence of a pediatrician during delivery. Concerning the infant’s condition, she stated that the Apgars were secondary to no spontaneous breathing, and that the infant was transferred to the neonatal intensive care unit (NICU), where he was intubated.
A pediatric attending note indicated that the baby was limp, cyanotic, and with poor respiratory effort. He infant was given vigorous stimulation, which did not elicit any respiratory effort, and thus positive pressure ventilation was commenced, which resulted in the FHR rising above 100. The baby was transferred to the NICU and administered continuous positive pressure ventilation. The obstetric discharge information stated that the infant was transferred to the NICU at approximately 8:30 p.m., with the first intubation settings at 8:40 p.m. THe was extubated and on room air at approximately 10:30 p.m. The first arterial blood gas showed a pH of 7.22, pCO2 of 18.3, pO2 of 436.4, bicarb of 7.1, base deficit of 19.4, and O2 saturation of 100%.
In the NICU chart, the neonatology attending commented that the infant was being admitted for poor respiratory effort and hypotonia. She confirmed that the mother was GBS-positive, and echoed the pediatric attending’s note describing interventions in the delivery room. She also noted full range of motion in all of the infant’s extremities, arguing against a brachial plexus injury. Ultimately, her assessment was that the hypotonia resolved, the mother was GBS-positive, and the plan was to administer antibiotics and treat in the NICU. In the NICU, the infant became pink and well-perfused, and was eventually extubated.
A nurse noted on November 7th that the infant was moving all extremities but had very weak to no grasp reflex and positive moro reflex. During the evening of November 7th into the 8th, a NICU nurse noted episodes of seizures, with the last witnessed seizure at 9:30 p.m. on the 7th.
An electroencephalogram (EEG) on November 9th was abnormal. A computed tomography scan on that day was negative for intracranial pressure, although magnetic resonance imaging (MRI) was recommended to evaluate for hypoxic ischemic encephalopathy (HIE). The infant was stable on phenobarbital for seizure activity. Later MRI results showed increased signal intensity within the basal ganglia, suspicious for HIE. The infant would be followed in the hospital’s Developmental Disorder Center (DDC). He was discharged on November 15, 2004.
The infant presented on November 22 for a pediatric well visit. The pediatrician’s only significant finding was increased tone and questionable HIE. On December 13, the infant presented to the DDC, wherein the assessment included “possible hypoxic ischemic encephalopathy,” but otherwise “appropriate development.” On January 10, 2005, a slight increase in peripheral tone was noted, but otherwise the infant was found to be within normal limits for his age. The infant was seen at the DDC for seizure follow-up, at which time a normal neurological exam and EEG were noted. The phenobarbital was tapered off.
The plaintiff’s attorneys contended that a cesarean delivery should have been accomplished by 7:37 p.m., when the FHR decelerated to 86 bpm. They also claimed that when the child “crowned at approximately 8:03 p.m. and there were repetitive late decelerations,” a cesarean delivery would have kept the child from being “asphyxiated for the last sixteen minutes or so before birth.” They further claimed that these alleged departures were the cause of attention deficit hyperactivity disorder (ADHD), HIE, Erb’s palsy/brachial plexus injury (resolved), global developmental delays, mental retardation, cognitive delays, motor delays, seizure disorder (resolved), future medical care, and future lost earnings.
School records show that starting in the 2010–2011 school year, the child had an individualized education plan (IEP) and was in a mixed special needs/mainstream classroom. He appeared to have been diagnosed with cognitive and motor deficits early on, although testimony and records suggested the child was not receiving therapy for gross motor function, although it appears that occupational therapy (OT) and speech therapy were continued. Pediatric records did not support any current physical impediments/needs. His mother and father testified that the child can feed himself, dress himself, play on monkey bars/jungle gyms, swim, and participate in organized soccer.
The IEPs from 2010–2011 indicated the child was receiving speech/language therapy only twice a week for 30-minute sessions. He was described as functioning below grade level, although he had made improvements since the previous year. Deposition testimony and records have confirmed that he repeated third grade. An IEP from September 2013 indicated a full-scale IQ of 87, with average verbal comprehension and perceptual reasoning, and below average memory and processing. Most significantly, per his September 2013 IEP, he is now in a self-contained, fully special-education class. He was to receive counseling once a week and OT and speech classes twice a week, per his most recent IEP. Records from the child’s pediatrician indicated that in 2012, the child was taking 40 mg a day of Strattera for ADHD.
The infant’s father testified that at the birth, he arrived 2 ½ hours prior to delivery, and for the duration of that time he was able to see his son’s head. He also testified that at a certain point during the delivery, alarms went off, he was ushered out of the room and “the door was locked.” He later witnessed his son being whisked away on a stretcher. He would later be told that his son was not breathing and had to be taken elsewhere for further care.
The second-year resident testified at her deposition that the attending physician and the chief resident were at all times available for consultation. The attending confirmed this fact during her deposition. The chief resident was never deposed.
Our first obstetrics expert believed that the labor and delivery were improperly managed and she suspected that the team was inexperienced. The obstetrics staff missed evidence of fetal distress. She felt that the “roving” FHR was evidence of distress, and that notations regarding a change in fetal baseline were erroneous. She felt that “shift changes” contributed to difficulty in determining the infant’s tolerance (or lack thereof) of the labor. She believed that the infant’s condition at birth (ie, limp, cyanotic, and not breathing) was the expected culmination of the story shown in the strips. She thought consideration should have been given to a cesarean delivery due to wandering baseline and lack of improvement. Crowning for 5 minutes was too long, increasing the risk of hypoxia and confirming difficulty managing the delivery. She felt the obstetric care was below acceptable standards and could be the basis for a later finding of HIE. She did not associate the finding of positive GBS with the infant’s depressed condition at birth, but believed that the condition was due to a difficult labor.
Our second obstetrics expert was supportive of the care, believing the obstetrics staff was responsive, the strips were acceptable, and there was no evidence of intrapartum fetal hypoxia. He did not feel that the strips gave an indication of fetal distress that called for the infant to be delivered by cesarean. He emphasized that the paramount parameter in evaluating fetal well-being was variability, and that as long as overall variability was reassuring, episodic decelerations and even presumptive changes in the FHR baseline were tolerable. He believed the first instance of roving FHR was likely a combination of artifact and the mother’s heart rate, and he stated that a roving baseline is not by definition pathologic as long as the purported change is within normal range. He was unconcerned about the “5 minutes” of “crowning” noted in the nursing and physician delivery notes, as all were working to get the baby out. By 8:20 p.m. the infant was out, which he stated was reasonable.
Our neonatology expert found evidence for an intrauterine event-likely a maternal-fetal bleed prior to the labor and delivery-as an explanation for the HIE seen on MRI and the abnormal EEG. A complete blood count from 9:15 p.m. showed 20 nucleated red blood cells (RBCs) and 10 reticulocytes, consistent with bleeding in utero. Nucleated RBCs and reticulocytes are not consistent with trauma only 1 hour earlier. The precipitating event was likely in the prenatal period, well before the labor and delivery, he felt. Likewise, our neuroradiology expert was of the opinion that while there was evidence of a mild insult on MRI, the precipitating event likely occurred in the prenatal period, at least a week prior to labor and delivery.
The case settled prior to trial for $1.5 million, with 40% to be covered by the New York State Medical Indemnity Fund, which provides coverage for future costs of care for qualified infants with birth-related neurologic injuries.
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With a sustainable value in the $6 million range, this case settled due largely to the drastically divergent views of our obstetric experts but also given the evidence of fetal distress prior to delivery and the residents’ and nurses’ notes reflecting a prolonged period of fetal crowning. The supportive expert opinions regarding the timing of the onset of insult along with what were acknowledged to be “soft” neurologic injuries allowed us to resolve this case within reason.