Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.
Plaintiff alleged that excessive force from implementing the vacuum resulted in intracranial hemorrhage and subdural hematoma.
The case involves the prenatal care and treatment of a patient and her labor and delivery at codefendant hospital, which resulted in the birth of her son on June 20, 2008. The woman, an 18-year-old primigravida with no obstetrical history, presented to the co-defendant ob/gyn group for prenatal care on November 20, 2007. Examination revealed that she weighed 179 lb and was 5’2’’ tall. She reported a past medical history of migraines, epilepsy, seizures, asthma and iron deficiency. All blood work ordered was normal save for a positive Chlamydia test, and the infection was successfully treated with 2 rounds of antibiotics.
Because the woman was unable to accurately report her last menstrual period, she was sent for a “dating” ultrasound (U/S)/anatomy survey, which was performed on December 10, 2007 at co-defendant hospital. The sonogram, which the nonparty perinatologist discussed with the woman, showed that she was 11 2/7 weeks’ pregnant with an estimated date of delivery (EDD) of June 28, 2008. The EDD remained unchanged for the remainder of the pregnancy.
The woman had approximately 8 more prenatal visits with the ob/gyn group. She underwent U/S on March 4, April 1, May 1, and June 5, 2008, all of which were within normal limits, and biometry remained consistent with the EDD of June 28, 2008
On May 24, 2008, the patient presented to co-defendant hospital with complaints of increased vaginal discharge. Non-stress tests (NSTs) were performed at 1:30, 1:45 and 1:54 p.m., each of which showed reactive and reassuring results. The woman was not experiencing any contractions and her cervix was closed upon vaginal examination. At 2 p.m., she was discharged home by co-defendant Dr. A with instructions to return if she had rupture of membranes (ROM) and/or regular contractions.
During a June 18, 2008 prenatal appointment at the ob/gyn group, the patient complained of abdominal discomfort and tightening. A NST was performed and the patient was sent to the co-defendant hospital for further evaluation. She was in no apparent distress and fetal heart rate (FHR) monitoring was reactive. Mild, irregular contractions were noted with no fluid or blood found on vaginal examination. The woman’s cervix was 2 cm dilated and she was 70% effaced, with vertex at -1 station. Dr. A’s impression was that the pregnancy was at term and the patient was in early labor. She was discharged by Dr. A and instructed to return to the ob/gyn group on June 20, 2008 for another NST.
Instead, on June 20, 2008 at approximately 6:50 a.m., the woman presented to the co-defendant hospital reporting spontaneous ROM 35 minutes earlier. A FHR monitor was applied and the FHR was found to be reactive. The patient was experiencing regular contractions and was admitted to the hospital at 7:15 a.m. At 7:30 a.m., Dr. B performed a vaginal examination and found that the woman was 5 cm dilated and 100% effaced at a -1 station. At 8 a.m., an epidural was started by the anesthesiologist. Vaginal examination by Dr. B at 8:15 a.m. showed that the patient was fully dilated. At 8:22 a.m., the patient was given oxytocin, with an increase in dosage at 8:30 a.m. to 9 mL/hour.
At 8:35 a.m., as per the FHR monitor, there was a prolonged period of deceleration of the FHR to 60 beats per minute (bpm). Once the deceleration lasted for more than 10 minutes and classified as bradycardia. In response, the woman was turned to her left side and given oxygen in an effort to stabilize the fetus. Within 14 minutes the FHR returned to 140 bpm, a reactive and reassuring baseline. Oxytocin had been discontinued during the bradycardia episode at approximately 8:40 a.m.
Per the FHR strips, bradycardia occurred again at approximately 8:54 a.m.. Dr. B testified during his deposition that he had an approximately 1-minute conversation with the patient about the risks, benefits and alternatives to proceeding with labor unassisted, the use of a vacuum extractor to assist delivery and/or delivery by cesarean. That informed consent conversation was documented in the co-defendant hospital labor & delivery chart wherein the patient, Dr. B and witnessing nurse signed a “Vacuum Delivery Consent” form.
Upon commencement of the vacuum-assisted vaginal delivery, Dr. B documented that the patient was fully dilated at +2 fetal station. The vacuum was applied to the fetal head for a total of 2 minutes. The maximum pressure attained during delivery was 500 mm with the cumulate amount of time the vacuum cup was at or near maximum pressure of 1 minute. There were no “pop-offs” of the vacuum cup, and the infant was delivered in “good” condition at 8:58 a.m. after 2 pulls. Strong APGARs of 8 at 1 minute and 9 at 5 minutes were reported. The infant was transferred to the nursery in good condition and discharged home with his mother on June 22, 2008.
On July 7, 2008 at 7:45 p.m., the infant plaintiff presented to nonparty medical center. Four days later on or around 1:32 p.m., the infant underwent magnetic resonance imaging (MRI) of the brain, which was interpreted as follows:
MRI of the brain was performed on 11 July 2008 utilizing T1, mixed T2, flair, diffusion weighted and gradient-echo sequences. There is an acute hematoma in the left parietal high convexity region posteriorly with shortened T1 and shortened T2 signal intensity consistent with intracellular methemoglobin…Impression: Acute left posterior parietal focal subdural hematoma. A CT to look for fracture is suggested if this is felt to be of clinical importance.
Later that day, the infant-plaintiff was sent for a computed tomography (CT) scan of the brain, which revealed the following:
There is no convincing evidence of acute intracranial hemorrhage, mass-effect, or shift of midline structures…There is a probable high left parietal convexity cephalohematoma…Impression: 1. No convincing evidence of acute intracranial hemorrhage, mass-effect or shift of midline structures; 2. Probable high left parietal convexity cephalohematoma; 3. No evidence of depressed calvarial fracture.
The plaintiff alleged that the defendants negligently utilized excessive force in implementing the vacuum extractor, without indication for vacuum extraction, resulting in intracranial hemorrhage and subdural hematoma. They also alleged a failure to appreciate uterine hyperstimulation syndrome due to unnecessary and excessive use of oxytocin. They also alleged failure to perform cesarean delivery in the face of traumatic delivery including head compression and decreased cerebral perfusion.
The plaintiff testified that while she was pushing, she began to experience difficulties. Dr. B told her to stop pushing, and she overheard him say to someone that he “had to hurry up” and “get him out.” She also saw Dr. B grab “the vacuum.” She then testified that she never saw the vacuum nor was she able to see Dr. B use the vacuum. She could not recall if anyone told her that the vacuum extractor was going to be used nor signing the informed consent documents. She was told by someone that the vacuum extractor was being used to help get the baby out because there was something wrong with his shoulder. “It was really fast” between the time she was told to stop pushing and the time the vacuum was placed. The infant was born “a few minutes” after the vacuum extractor was placed. The woman claimed that an orthopedist who saw the infant twice told her that he suffered from “high muscle tone.” Physical therapy was recommended. A neurologist, who treated the infant “a long time ago,” diagnosed the infant with spastic quadriplegia. The woman claimed that the neurologist “agreed” with her that the birth had caused the spastic quadriplegia. However, she conceded that he improved dramatically with physical, occupational and speech therapy and was enrolled in kindergarten without a continuing therapy plan. Significant issues were uncovered in the home as well, which required the intervention of Protective Services.
Our maternal-fetal medicine expert opined that vacuum extraction was the appropriate mode of delivery in this case because once the second episode of fetal bradycardia occurred, coupled with the patient’s inability to push secondary to the epidural, there was an urgent need to deliver the infant and this was the most effective way to accomplish that. Had the doctor chosen to perform a cesarean deliery, the fetus would need to be pushed back into the abdomen, which is risky, and the operating room would need to be prepared, which could take at least 15 to 20 minutes in total. Although the plaintiff claimed there was “hyperstimulation” that was not addressed by Dr. B, the expert did not see that on the strips and explained that there were the appropriate number of contractions, i.e., approximately no more than 5 within a 10-minute period. He also felt that the use of oxytocin was warranted. It was started after the cervix was fully dilated, but he felt there was no contraindication to its use here to augment labor, which had slowed due to the epidural. Our pediatric neurologist evaluated the infant and did not feel that any of his “delays,” consistent with a learning disability, were related to the vacuum extraction or an alleged subdural bleed that became manifest weeks after delivery. Finally, we retained a neuroradiologist to look at the head studies. That expert opined that there was no evidence of a subdural bleed, but rather a cephalohematoma which lined up with placement of the extractor but was subperiostial, not subdural, and thus too superficial to cause the kind of damage alleged by the plaintiff.
Plaintiff interposed a $5 million demand, asserting that this was a significant “brain-damaged” baby case. At the time of trial, however, 2 developments in our estimation significantly altered their perspective. First, the neuroradiologist who had read the head CT as “subdural hematoma” was willing to testify that he had misread the study and in hindsight, upon comparison with the subsequent MRI, it was indeed a cephalohematoma. Second, a series of social media videos and photos of the infant plaintiff engaging in activities it was claimed he was too disabled to accomplish had been posted online by the infant’s mother and were exchanged with opposing counsel. The case ultimately settled for a $200,000 contribution on behalf of Dr. B.