$5 Million for Catastrophic Brain Damage in Newborn Baby

2008 Trial Lawyers Report

Medical malpractice settlement: Failure to supervise student and failure to properly respond to change in fetal activity level results in catastrophic brain damage in newborn baby

This case involves a now 11 year old boy with devastating neurological injuries. He cannot control any aspect of his own life; he cannot sit or walk; he cannot communicate in any way; he cannot use his arms or legs purposefully; he cannot swallow food or liquids. He smiles at times. He cries when he feels pain.

The defendants in the case are a certified nurse midwife and an obstetrician, both employees of Fallon Clinic in Worcester. The claim against the nurse midwife is that on 07/07/97 she abandoned her responsibility for the plaintiff (her patient) during a 33–34 week prenatal visit when she allowed a student to conduct the entire prenatal visit unsupervised by any certified nurse midwife. The result was that important information about fetal activity was overlooked and the plaintiff was sent home without required follow up testing. The next day, testing was non-reassuring and the plaintiff was admitted to the defendant obstetrician at St. Vincent Hospital for further evaluation. The claim against the obstetrician is that knowing that she could not safely deliver a 33-34 week baby at St. Vincent Hospital, she failed to immediately transfer the patient to U/Mass Memorial Hospital for evaluation and delivery. Instead, she obtained additional non-reassuring test results, attended to other patients and was generally otherwise unable to account for her activities during the more than four hours that the plaintiff remained at St. Vincent’s. Once transferred to Memorial, the baby was delivered promptly by cesarean section.

The plaintiff was 35 years old and this was her first pregnancy. The baby was due on August 25, 1997. The plaintiff selected the Midwife practice at Fallon Clinic anticipating occasional physician oversight and more hands-on care at the time of delivery. A serum AFP level was elevated in second trimester, but was followed up by normal amniocentesis and several normal ultrasounds, the last of which was done on 07/01/97, just one week before delivery. The pregnancy was uncomplicated until July 1997.

Over the July 4th weekend, the plaintiff perceived a change in fetal activity that she described as a rolling type movement that was somewhat less than had been happening previously. On Monday, 07/07/97, she attended a 4:30 p.m. prenatal appointment where she agreed to allow a student to participate in the exam. The plaintiff fully expected to be seen by the certified nurse midwife with whom the appointment had been scheduled. This did not happen.

The student recorded a number of concerning findings—elevated blood pressure, proteinuria, breech presentation and pitting edema from the midcalf down. She was unable to find the fetal heart rate and brought the certified nurse midwife in for that purpose only. As for fetal activity, the student recorded that it was present—technically true. However, she did not record the change and diminution reported to her by the plaintiff. The student spoke with the certified nurse midwife outside of the patient’s room and returned with a plan for a non-stress test to be done the next day. The certified nurse midwife did not evaluate the plaintiff herself. The student told the plaintiff that the non-stress test could not be done that afternoon because the midwife had to leave to pick up her children at camp. In fact, at some time during the visit, the certified nurse midwife passed by the exam room and waved goodbye, leaving the student alone with the patient.

The plaintiffs’ claim is that because of the change in the baby’s activity the non-stress test needed to be done on 07/07/97—the same day that the plaintiff reported the change in fetal movement. The plaintiffs’ claim is that the test would have been non-reassuring, as it was the next day, resulting in a timely delivery and the avoidance of brain damage to the baby. The plaintiffs’ claim is that the certified nurse midwife was fully responsible for the plaintiff on 07/07/97 and was required—for a variety of reasons—to personally evaluate the plaintiff herself. Had she done so, rather than turning the visit over to a student, more likely than not, she would have appreciated the plaintiff’s description of the change in fetal activity, leading to timely testing and delivery without injury.

The next morning, 07/08/97, the plaintiff returned to Fallon Clinic as instructed. A non-stress test was non reactive and the plaintiff was sent to St. Vincent’s Hospital under the care of the defendant obstetrician. The plaintiff remained at St. Vincent’s for more than four hours. During this time, the fetal heart pattern was non-reassuring. A biophysical profile was scored as 2/10. The baby’s movement slowed even more. There were few signs of fetal well-being. At trial, the defendant obstetrician testified that she thought the baby might have been sleeping and so, did not rush to transfer the plaintiff to a hospital with a Level III nursery where the baby could be safely delivered. Once the decision to transfer was finally made, it took nearly another hour to get the patient from St. Vincent to UMass Memorial—a few minutes away.

The plaintiffs claimed that it was unreasonable to presume a sleep cycle in the face of the ever increasing signs of fetal distress, and that the obstetrician should have transferred the plaintiff to UMass Memorial rather than accepting her at St. Vincent Hospital. In the alternative, the plaintiffs claimed that the biophysical profile should have been done immediately upon arrival, would have been scored as 2/10 and the plaintiff would then have been timely transferred and delivered without resultant brain damage to the baby.

The plaintiff was admitted to Labor and Delivery at UMass Memorial Hospital at 3:20 p.m. The baby was born by cesarean section at 4:18 p.m. He weighed 4 pounds, 5 ounces. He was limp and dusky, with a heart rate less than 40, and poor respiratory effort. His Apgar score was 1 at 1 minute, and 8 at 5 minutes. He was given blow-by oxygen, then bag/mask breaths. At 5 minutes of age, he developed grunting, flaring, and retractions, with decreased air exchange. Cord pH was acidotic at 7.00.

The baby remained in the nursery for 57 days. The medical records indicate that he had suffered in utero asphyxiation and hypoxic ischemic encephalopathy. Imaging studies showed a grade III intraventricular hemorrhage and eventually, periventricular leukomalacia. Presently, the child is blind, has significant hearing impairment, suffers from a seizure disorder, is severely developmentally delayed and has spastic quadriparesis. He is fed through a jejunostomy tube.

The case was tried before a Worcester jury for eight days. At the end of the second day of deliberations, the parties settled for $5,000,000.

Lubin & Meyer attorneys represented the plaintiff in this lawsuit.

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