Delay in C-Section Resulting in Brain Damage Settlement is $3 Million

2011 Medical Malpractice Trial Report

Birth Injury Medical Malpractice: Obstetrician and labor nurses’ failure to recognize non-reassuring findings on the fetal heart monitor and ensure an earlier delivery before the infant suffered permanent and irreversible brain damage.

The minor plaintiff is a now 4 year-old girl who suffers from severe neurological injuries as a result of the defendant obstetrician and defendant labor nurses’ failure to recognize non-reassuring findings on the fetal heart monitor and ensure an earlier delivery before the minor plaintiff suffered permanent and irreversible brain damage.

In January 2007, the minor plaintiff’s mother, was a 36-year-old woman expecting the birth of her fourth child. She had a history of three prior cesarean sections and was scheduled to deliver this baby via cesarean section on 1/18/07. She had a normal routine prenatal course. Throughout the pregnancy the fetal heart rate was noted to be 140-150 bpm.

On 1/18/07 at 6:40 a.m., at 39 weeks gestation, the minor plaintiff’s mother presented to the hospital for her scheduled cesarean section at 8:30 a.m. by the defendant obstetrician.

At 6:45 a.m., she was placed on an external fetal heart monitor that revealed a fetal heart rate of 118 bpm. This was a much lower fetal heart rate than was normally heard throughout the pregnancy. The defendant labor nurse asked the over night resident to review the tracings and she noted that there was minimal to moderate variability.

At 7:25 a.m., the defendant labor nurse noted that the fetal heart rate had decreased to 100-105 bpm for 5-10 seconds and that the resident and nurse in charge was aware of the tracing. The labor nurse continued to note that the fetal heart rate would drop to 100-105 for 5-10 seconds then would increase to 115-120 for 5-10 seconds and would repeat.

Plaintiffs’ experts were prepared to testify that by 7:45 a.m. the fetal heart monitor showed a non-reassuring fetal heart rate pattern of diminished variability, decelerations, and a heart rate significantly below baseline at 115 and thus required the labor nurse to notify the obstetrician in attendance, and institute intrauterine resuscitative measures including, but not limited to, oxygen administration, intravenous fluid bolus, and maternal repositioning.

At 8:00 a.m., the first defendant labor nurse transferred care of the patient to the second defendant labor nurse.The nurse noted that the fetal heart rate was 110 with moderate long term variability. At around this same time, the defendant obstetrician was in the room and completed a history and assessed that the fetal heart rate baseline was 120’s and that it was non-reactive but reassuring. The defendant obstetrician noted that the plan was for a cesarean section, however, the plaintiff’s cesarean section was being delayed because another patient deemed to be an emergency has taken her spot in the OR. The plaintiff was told that she would be taken to the OR as soon as one opened up.

The plaintiffs’ experts were prepared to testify that by 8:13 a.m. the fetal heart monitor continued to show a persistent non-reassuring fetal heart rate pattern of persistent diminished variability, late decelerations, non-reactivity, and a heart rate below baseline which required intrauterine resuscitative measures by the labor nurse and required the obstetrician to expedite delivery via emergent cesarean section and not allow another patient to take priority. The experts were prepared to testify that the defendants’ failure to recognize these worrisome changes on the monitor and their failure to intervene and deliver the baby sooner, allowed the baby to remain in utero with decreased perfusion and oxygenation resulting in her permanent brain damage.

The fetal heart monitor continued to show a persistent non-reassuring fetal heart rate pattern of persistent diminished variability, repetitive late decelerations, non-reactivity, and a heart rate below baseline right up to the time when the plaintiff was finally taken to the OR at 9:20 a.m. A combined spinal and epidural anesthesia was placed and the minor plaintiff was delivered via cesarean section at 10:03 a.m. Her Apgar Scores were 1, 2, 4, 5, and 6 at one, five, ten, 15, and 20 minutes respectively. Bag valve mask ventilation was initiated and she was intubated on the second attempt at 10:07 a.m. CPR was initiated for heart rate less than 40 with several doses of epinephrine given with increase of heart rate greater than 100. The cord pH was 6.8, indicating metabolic acidosis. The minor plaintiff was transferred to the NICU in critical condition. The baby’s NICU course was complicated by, among other things, refractory hypotension, pulmonary hypertension, metabolic acidosis, hypoxic seizures, and respiratory failure. A head ultrasound performed on 1/19/07 was reported as normal. Neurology consulted and noted that she had prolonged electrographic seizures from the right hemisphere. On examination, neurology noted that she had no spontaneous movements, that she required painful stimulation to elicit slight distal movements of her extremities, and that she had diffuse hypotonia. Neurology’s impression was perinatal asphyxia with moderate hypoxic ischemic encephalopathy (HIE), with frequent prolong subclinical seizures. A brain MRI performed on 2/1/07 revealed areas of hemorrhage, abnormal signal intensity, and restricted diffusion in a watershed distribution indicating evolving hypoxic ischemic changes. A repeat EEG showed an abnormal slowing of the left but no clinical seizures. A G-tube was placed on 3/7/07 due to a dysfunction suck and swallow. She was diagnosed with HIE, subclinical seizures, and oral motor discoordination and dysfunction and discharged to home on 3/13/07.

The minor plaintiff was followed by neurology who noted that she had neonatal encephalopathy and seizures consistent with severe HIE and subsequent white matter damage. It was recommended that she receive intensive involvement with early intervention services. Today, at age 4 years, the minor plaintiff requires a wheelchair in order to ambulate. She wears braces on her arms, hands and feet for contractures. She required a G-tube until 2008 at which point it was removed. She can eat solid foods but requires supplementation to keep up her weight. She can not speak more than 10-15 words and she takes medications daily to control her seizures.

The defendants testified and were prepared to offer expert testimony that the fetal heart monitor on the morning of delivery did not reveal a baby in distress and that it was within the standard of care to allow the other emergency delivery to take priority over this delivery as there was no indication of anything but a normal fetus. There were no defense experts listed to testify as to causation.

The case was resolved prior to trial for $3,000,000.

Lubin & Meyer attorneys represented the plaintiff in this c-section delay lawsuit.

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