In many malpractice cases involving shoulder dystocia and resultant Erb's palsy, the claim is made that there is or should have been a consent discussion for vaginal delivery, especially where macrosomia is suspected.
AN ILLINOIS WOMAN delivered a baby in 2002. The delivery was complicated by shoulder dystocia, and the child was subsequently diagnosed with a brachial plexus injury. The infant weighed 11 lb, 5 oz at birth. He has undergone 3 operations and physical therapy and has paralysis of his right arm.
The woman sued the obstetrician, claiming that she had multiple risk factors for a macrosomic fetus, including excessive maternal weight prior to pregnancy, excessive weight gain during pregnancy, and small stature. She claimed that her obstetrician incorrectly estimated the fetal weight to be as much as 10 lb, and that the obstetrician had applied inappropriate traction to the head and neck of the baby while trying to complete the delivery. The patient contended that she was never told of the risks of vaginal delivery, including the risk of shoulder dystocia and brachial plexus injury, and should have been offered cesarean delivery.
A NEW JERSEY WOMAN sued those involved with her delivery after the baby was diagnosed with Erb's palsy. A shoulder dystocia was encountered during delivery and the infant weighed 12 lb, 3 oz. He underwent surgery but has limited strength and mobility of the left shoulder, arm, and hand. The patient claimed that the obstetrician applied too much traction and that the physicians involved with the delivery failed to correctly assess the size of the baby, provide counseling regarding the risk of vaginal delivery of a large baby, and recommend a cesarean delivery.
The defense argued that the baby's size was underestimated because of the patient's obesity and that the patient had been reluctant to undergo cesarean delivery. A $980,000 settlement was reached.
IN ILLINOIS, a pregnant woman went to the hospital with complaints of back pain around her due date. She was sent home, but returned the next day, continuing to complain of back pain. She was admitted in early labor. The obstetrician on call estimated the fetal weight to be between 7 and 8 lb. A vacuum extractor was used to deliver the infant, and a shoulder dystocia occurred. Four maneuvers had been used to deliver the baby within 1 to 2 minutes. The birth weight was more than 11 lb, and the infant was diagnosed with a brachial plexus injury.
In her lawsuit, the patient claimed the obstetrician had been negligent in estimating the fetal weight, failing to offer a cesarean delivery after a 2-hour second stage, and applying excessive force to deliver the baby.
The obstetrician claimed that fetal weight was almost impossible to accurately estimate, that cesarean delivery was not indicated, and that only gentle traction was used after each maneuver to deliver the child. A defense verdict was returned.
LEGAL PERSPECTIVE In each of these cases, the obstetrician was accused of being negligent for incorrectly estimating the fetal weight. Although it is possible to convince a jury that estimation of fetal weight is not an exact process and often is not accurate, whether by physical examination or ultrasound, jurors often are left with the impression that there was concern by the physician over the weight of the fetus prior to delivery.
In many malpractice cases involving shoulder dystocia and resultant Erb's palsy, the claim is made that there is or should have been a consent discussion for vaginal delivery, especially where macrosomia is suspected. Many juries and judges find that discussion of consent should have been required and that the risks of shoulder dystocia, including the possibility of brachial plexus injury, and the option for cesarean delivery are material information that a reasonable person would need to know to make an informed decision about the method of delivery. Although the argument can be made that it may not be the standard of care to obtain consent from every patient for vaginal delivery, it may be prudent to document some discussion of risks and options with the patient when a suspicion of macrosomia is either written in the chart or indicated by estimated fetal weight.
MS COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to firstname.lastname@example.org