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When a jury sees a diagnosis of HIE, it is very difficult to show them that no hypoxia occurred in labor, even in the face of normal cord blood gases.
Ms Collins is an attorney specializing in medical malpractice in Long Beach, California. She can be reached at email@example.com
Infant death from fetal hydrops
An Illinois woman was admitted to a hospital in 2009 at term in labor. She was under the care of nurses and residents who were supervised by an attending physician. During labor, the residents and the nursing staff documented late and variable decelerations on the fetal heart rate (FHR) monitor with periods of minimal or undetectable variability. However, the FHR was reported as being reassuring overall.
At approximately 3 am the next day, after the patient had been pushing for an hour and a half, the FHR became nonreassuring and the senior ob/gyn resident contacted the attending ob/gyn to perform the delivery. The delivery was accomplished using a vacuum extractor. The neonatologist in the delivery room noted that the infant, who had no signs of life, appeared to be hydropic with generalized edema, ascites, and pleural effusion. The neonatologist performed a thoracentesis but the infant died several hours later. According to the neonatologist, the cause of death was hypoxic-ischemic encephalopathy (HIE) and multi-system organ failure. The pathologist who performed the private autopsy 3 and a half weeks later concluded that the infant’s cause of death was congestive heart failure.
A lawsuit was filed on behalf of the infant alleging that the attending obstetrician and the residents deviated from the standard of care by failing to appropriately communicate with each other, failing to recognize abnormal FHR tracings and fetal distress, and failing to perform a cesarean section, due to non-reassuring FHR tracings, to deliver the infant sooner. The expert neonatologist for the plaintiff opined that due to the physician’s negligent failure to timely deliver the infant, she developed severe intrauterine hypoxic ischemia that resulted in fetal hydrops and subsequent death.
The physician and hospital contended that the FHR tracings were overall reassuring and that the obstetrical team communicated appropriately and kept the attending physician alerted as to the patient’s status. They argued that there was no need to deliver the baby any sooner and that the procedure was expedited. Further, they asserted that the fetal hydrops is the end manifestation of a serious problem in utero that could not possibly develop within several hours during the labor and delivery time frame and most likely took at least days to weeks to develop. The defense concluded that there was no hypoxic ischemic encephalopathy and that fetal hydrops was the cause of death as shown by the autopsy.
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The jury rendered a defense verdict.
Use of HIE as a diagnosis or cause of death without proof of actual hypoxia or ischemia severe enough to cause damaging asphyxia and brain injury in the period immediately preceding labor and delivery is one of the most frustrating situations in medical malpractice lawsuits. It is also one of the reasons that little progress has been made in successfully defending a case based on causation of neonatal brain damage. Absent proof of severe hypoxia or ischemia during the requisite period, “neonatal encephalopathy” is usually the more accurate term to describe a neonate’s symptoms or whatever other preexisting condition may be encountered (in this case, fetal hydrops). Once HIE is written in a neonate’s medical record, often on admission to the neonatal intensive care unit, it is then rewritten in almost every note and certainly every medical consult or examination for the rest of the child’s life. In a medical malpractice case, the jury sees that diagnosis in the chart hundreds of times and it is very difficult to show them that no hypoxia occurred in labor, even in the face of normal cord blood gases. Using the term “neonatal encephalopathy” or requiring that any diagnosis of HIE written in the chart following an infant’s delivery be accompanied by some evidence of that hypoxia-ischemia severe enough to cause brain damage could be an important step toward successful causation defense strategy.
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An Oregon woman presented to a hospital in 2008 in labor at term. She was admitted to the labor and delivery unit and labor progressed normally until the head delivered and a shoulder dystocia was encountered. The infant suffered a left brachial plexus injury with nerve root avulsion and also had extracranial and intracranial bleeding. She underwent 3 operations and extensive physical therapy, has decreased strength and dexterity in her left arm and hand, and is believed to have diminished capacity in any vocation due to her disability.
The patient sued the obstetrician, his practice, and the hospital. Her expert in obstetrics faulted the physician for pulling out the baby with excessive force. He opined that alternate methods like McRoberts, a corkscrew, and delivery of the posterior arm should have been used or used more effectively. The expert in obstetric nursing criticized the hospital’s nursing staff for administering fundal pressure instead of suprapubic pressure once the dystocia was recognized.
The defense's experts in obstetrics and pediatrics neurology opined that the infant’s injury was the result of maternal forces of labor and happened when the shoulder got stuck behind the mother’s pubis symphysis and was not caused by any negligence by the physician or hospital. The obstetrician argued that he used all the appropriate maneuvers and the infant was then delivered. The nurses denied that they used fundal pressure during the delivery and noted that the patient’s chart erroneously stated fundal pressure, when in fact the nurses did not use any. The expert opined that no nurse would ever use fundal pressure, and the nurses were trained to use suprapubic pressure, which was applied properly during the delivery.
The jury found the obstetrical practice 100% liable and awarded $1,012,000 in damages.
A 39-year-old Illinois woman presented to her gynecologist in 2009 with a possible pregnancy. Ectopic pregnancy was diagnosed and methotrexate was administered to terminate it. However, a repeat ultrasound 5 days later showed a viable uterine pregnancy. Based on the risks associated with the methotrexate, the patient terminated the pregnancy a couple of weeks later. She patient filed a lawsuit against the physician.
The case was settled for $625,000.
An ultrasound performed by an obstetrician on an Alabama woman confirmed that she was 8 to 9 weeks pregnant. One month later, the woman returned to the office and reported that she had been exposed to parvovirus. Blood tests revealed she was positive for parvovirus B19. The physician ordered the patient to return for ultrasounds every 2 weeks for 10 weeks. Two weeks later, the patient returned to the clinic and was seen by another physician, but no ultrasound was performed. The next month she again returned to the office and was seen by another physician, who did do an ultrasound that revealed some nuchal fold thickening. The patient was ordered to return again in 2 weeks for a follow-up ultrasound. She did and at that visit, a fetal demise was diagnosed. The fetal cord blood tested positive for parvovirus B19.
The woman sued the obstetricians and asserted that all 3 physicians failed to perform more ultrasounds during the pregnancy and that when she was diagnosed with parvovirus, they should have immediately referred her to a perinatologist, who could have treated her for the virus and monitored the pregnancy more closely.
The physicians denied any negligence in the woman’s care and asserted that if they had referred her to a specialist, the result would have been the same.
A defense verdict was returned.
NEXT: Failure to diagnose cervical cancer >>
Failure to diagnose cervical cancer
A single mother of 4 children underwent gynecologic examinations over many years at a federally funded clinic in Illinois. She was known to be human papillomavirus-positive and was at risk for cervical cancer. She had Pap smears in 2004, 2005, and 2007 that showed some cervical dysplasia. The patient was not notified because all correspondence was sent to an outdated address even though she was receiving ongoing treatment at the clinic for other issues. The patient’s treatable cervical dysplasia progressed to cancer and metastasized, leading to her death in 2011.
The case settled for $4.95 million.
Overdose during abortion leads to death
A 41-year-old Pennsylvania woman underwent a dilation and evacuation abortion by a gynecologist. The day prior to the procedure a cervical ripening agent was administered and the patient was instructed to return the next day. When she returned for the procedure she complained of cervical pain and cramping and was given pain medication. While she awaited adequate cervical dilation, the woman was given more pain medication throughout the day by office personnel, who apparently had no medical training. In the evening a “cocktail” of meperidine, promethazine, and diazepam was administered 3 times 2 hours apart. The abortion was then completed, during which the patient’s breathing decreased and her skin lost color. Eleven minutes into the abortion, EMS was called and they arrived shortly thereafter. The EMS technician detected a weak pulse and the patient was placed on a gurney to be wheeled to the ambulance. However, when a padlocked emergency exit made it impossible to wheel her out, The police were called to cut it. About an hour later, the patient arrived at the hospital, where she was placed on life support. She died several hours later. Four years later, the physician was convicted of murder for her death. The employees who had administered the drugs were also criminally charged, and both pled guilty to third-degree murder.
A civil lawsuit was filed on behalf of the woman’s estate against the gynecologist and the clinic.
The court found in favor of the estate for $3.9 million.
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Oxytocin use blamed for brain damage
A New York woman was admitted to a hospital in 2008 at 37 weeks’ gestation with contractions. She had been hospitalized for kidney infections during the pregnancy. The initial examination showed she was 3 cm dilated with a reassuring FHR tracing. The covering obstetrician ordered oxytocin augmentation, which was started 30 minutes later. A cervical exam performed before the oxytocin was started showed that the woman’s cervix was 4 to 5 cm dilated. Shortly thereafter, uterine contractions were noted to be more frequent, with approximately 6 t 8 contractions in each 10-minute period. Tachysystole continued and 1 ½ hours later, the FHR showed multiple deep decelerations with slow recovery and a baseline rate of 90 bpm. This continued for 17 minutes until the physician administered terbutaline and stopped the oxytocin, which resulted in an immediate change in the FHR and return to normal baseline rate. This intrauterine resuscitation was continued for the 3 hours prior to delivery. The infant had Apgar scores of 8 and 9 and was admitted to the regular nursery. However, on Day 2, the mother noticed that the child was having seizure activity. The infant was transferred to the NICU where an electroencephalogram confirmed seizures and she was given phenobarbital. The first imaging studies appeared normal but magnetic resonance imaging performed on Day 6 of life showed bilateral brain damage. The child was subsequently diagnosed with spastic diplegia and she is blind and unable to walk.
A lawsuit was filed against those involved with the labor and delivery. Prior to trial the hospital settled for $3 million and the case against the hospital and the original obstetrician was dismissed. The trial went forward against the covering obstetrician and alleged a departure from the standard of care in ordering and administering of the oxytocin, failure to closely monitor the FHR, failure to timely administer terbutaline, and failure to timely respond to and correct tachysystole.
The jury found these failures were each a substantial factor in causing injury to the child and although they also found the hospital’s care was below the standard, they determined that the obstetrician was 100% liable for the injury.
The jury awarded the child $134,160,337.54, including $1.5 million for past pain and suffering, and also including future pain and suffering, future nursing care, future occupational therapy, physical therapy, vision, and feeding therapy, and a specially equipped vehicle, all for 90 years, among other damages.
An Illinois woman was diagnosed with a large uterine fibroid and consulted her gynecologist to discuss treatment. She had a history of 3 cesarean sections, a tubal ligation reversal, and a tummy tuck. After 3 appointments with the gynecologist, the patient decided to undergo a laparoscopic hysterectomy to avoid a large scar. The physician informed the patient that she could not promise a minimally invasive surgery until she inspected the pelvic area to see if a laparoscopic hysterectomy could be safely performed.
During the operation, the gynecologist discovered that the pelvic adhesions had completely distorted the patient's anatomy and she had to convert to an open procedure that was longer and more complicated and that left a larger scar. Two days later, the patient was diagnosed with a perforated bowel and had to undergo additional surgery with a larger scar and surgical mesh to correct the perforation.
The woman sued the gynecologist and hospital, claiming that the bowel perforation was a breach in the standard of care.
The physician contended that bowel injuries are a known complication of this procedure and can happen without negligence and many are not detected during laparoscopic gynecological operations, even though she made every effort to prevent and check for them.
A defense verdict was returned.