Birth injury settlement is $5 million
2009 Medical Malpractice Trial Report
Baby suffers permanent brain damage during delivery
In June 2005, the plaintiff was a 30-year-old woman expecting the birth of her first child. The due date was 6/26/05 and her past medical history and prenatal course were unremarkable.
At 6:35 a.m. on 6/30/05 (40 4/7 weeks), the plaintiff was admitted to the hospital in early labor and an external fetal monitor was placed. She was 2cm dilated and the defendant nurse midwife on-call assumed her care.
At 12:51 p.m. the plaintiff was 3cm dilated and an epidural was placed. At approximately 2:00 pm, the fetal heart monitor tracing (FMT) started to show decelerations in the baby’s heart rate. Furthermore, the FMT was not showing a complete tracing during contractions. This is especially worrisome when there are decelerations associated with the contractions because the clinician can not determine if the decelerations are worrisome. If the obstetrical provider can not insure fetal wellbeing due to an incomplete tracing then the standard of care requires that an internal clip or fetal scalp electrode (FSE) be placed to better trace the baby’s heart rate. This was not done by the defendant obstetrical provider. The plaintiff was fully dilated at 3:55pm and the FMT showed late decelerations in the 90s for approximately 10 minutes. At 4:35pm, the defendant labor nurse recorded decelerations to the 70s for 40 seconds with the last two contractions. The defendant mid-wife was notified and at 4:50 pm she noted a forebag and performed AROM. According to the plaintiffs’ expert witnesses, the FMT was non-reassuring at 4:45 pm and required the defendants to initiate a prompt delivery via cesarean section. Prompt delivery was even more crucial since the baby was in the occiput posterior position (back of the head facing the back of the mother) in a prima gravida mother, indicating that labor and delivery could be prolonged. Further, there were still gaps in the tracing and a FSE had not been utilized to better trace the baby’s heart rate.
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From approximately 4:45pm to delivery, the FMT showed decreased beat-to-beat and long-term variability in the baby’s heart rate. At 5:00 pm, the plaintiff was instructed to start pushing. The FMT continued to be non-reassuring with deep decelerations, indicating fetal distress and intolerance to labor. Oxytocin was started for augmentation at 5:40pm and the FMT continued to show decelerations in the baby’s heart rate to the 60s. At 5:45pm, the defendant nurse noted decelerations to the 60s for 30–40 seconds. At 6:15 pm a FSE was finally placed and the plaintiff was placed on oxygen. An attending obstetrician was finally paged at 6:20 pm for a fetal bradycardia (abnormally slow heart rate). In addition, the FSE was properly placed, thus fetal wellbeing could not be assessed. On vaginal exam the baby was noted to be at +3 to +4 and in occiput posterior position. The obstetrician made the decision that the baby needed to be immediately delivered and that he could do so more quickly with vacuum assistance versus going to the operating room for a cesarean section. The obstetrician applied the vacuum and was able to deliver the child within minutes. The baby was delivered at 6:28pm with Apgars of 2, 3, and 4 at 1, 5 and 10 minutes, respectively. Her cord pH was 7.0, indicating fetal acidosis secondary to a lack of oxygen. The baby was suctioned at the perineum and handed to the pediatrician. Initially, she received bag and mask ventilation and was eventually intubated. In the NICU, she had no tone and was unresponsive. The baby began to have seizures and a CT scan on 7/2/05 showed a subdural hematoma. An MRI on 7/3/05 showed findings consistent with HIE. A follow up MRI on 7/13/05 demonstrated an evolution of abnormalities that were consistent with HIE.
Today, the minor plaintiff is three years old and is fed through a G tube. She can not walk, talk or sit unsupported. She is dependent upon her parents for all aspects of her care and daily living. The case was scheduled for trial in April 2009. Mediation in January 2009 resulted in the settlement.
Lubin & Meyer attorneys represented the the plaintiff in this birth injury claim.
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