$1.4M settlement for mother of child with cerebral palsy

2004 Medical Malpractice Settlement Report

1.4 million dollar settlement as a result of failure to utilize cerclage results in premature delivery of the minor plaintiff at 26 weeks resulting in his moderate neurologic injuries

The minor plaintiff was born on October 7, 1995 at 26 weeks gestation weighing 1025 Gm. He suffers from spastic diplegia, a form of cerebral palsy, and other permanent sequela, which his treating doctors have attributed to his premature birth.

Prior to his delivery, the minor plaintiff’s mother had a history, which was remarkable for a number of factors that placed her at great risk for incompetent cervix (premature, painless dilation of the cervix). She had a history of DES exposure; in 1987, she underwent laser conization of the cervix for treatment of non-invasive cancer of the cervix; and in 1988, during her first pregnancy, her cervix had thinned appreciably and a cerclage was placed at 11 weeks gestation, which allowed her to carry the pregnancy to term. All of these factors led to a diagnosis of incompetent cervix by her prior obstetrician and cause the minor plaintiff’s mother to anticipate the use of a cerclage with all future pregnancies. It took a number of years and the assistance of in-vitro fertilization (IVF) before she was able to conceive again, however, the minor plaintiff’s mother became pregnant with him in May 1995.

On May 24, 1995, her infertility specialist wrote to the defendant to advise him that the minor plaintiff’s mother would be seeing him for obstetrical care. Her prior obstetrician had retired and the defendant had been chosen as her new obstetrical provider. The infertility specialist pointed out to the defendant the history of carcinoma in situ treated by cone biopsy, and the fact that cervical thinning had complicated this patient’s pregnancy in 1988. He informed the defendant that the prior obstetrician had placed a cerclage and utilized bed rest for several months until delivery.

Her first visit with the defendant occurred on June 16, 1995 at 10 weeks gestation (EDC 1/10/96). During this initial meeting, the plaintiff’s mother and the defendant discussed her past history and pregnancy. Despite the prior history and information provided by the fertility specialist, the defendant stated that cerclage would not be necessary; as he did not believe she truly had an incompetent cervix, but would evaluate her with serial ultrasounds.

On July 10, 1995, at 13.7 weeks gestation, transvaginal evaluation of the cervix showed it to be approximately 3 cm. in length and normal in appearance. On August 7, 1995 at 17.7 weeks gestation, the cervix was 3 cm. long and closed on vaginal ultrasound. On August 28, 1995, the defendant noted that the cervix was still closed but seemed more like 50% effaced. An ultrasound the following day revealed that the cervix was 1 cm. dilated with membranes bulging through the cervix into the vagina. The defendant admitted the minor plaintiff’s mother to the hospital for an emergency McDonald cervical cerclage. She was sent home on bed rest. Unfortunately, according to the plaintiff’s experts, rescue or emergency cerclage is generally only successful in prolonging pregnancy 3-4 weeks as compared with elective cerclage, which has a 90-95% success rate in assisting pregnancies to term. On September 17, 1995, at 25 weeks gestation, the membranes ruptured and the minor plaintiff’s mother was admitted to the Beth Israel Hospital where the cervix was slightly more dilated than 1 cm. She was hospitalized on strict bed rest and careful monitoring for any sign of infection as well as receipt of medication to mature the fetal lungs.

On October 7, 1995, at 26 3/7 weeks gestation, the minor plaintiff’s mother began having preterm contractions as a result of premature prolonged rupture of membranes. A Cesarean section delivery was performed. The minor plaintiff was hospitalized for several weeks and his course was complicated by hyaline membrane disease, chronic lung disease, gastresophageal reflux, retinopathy of prematurity and anemia of prematurity.

The defendant maintained throughout the litigation process that the mother’s history was not consistent with an incompetent cervix and that he did not feel that her history warranted a cerclage. The defendant stated she had slight risk for this condition but that I was appropriate to follow her with serial ultrasounds. He disagreed with the prior obstetrician’s diagnosis until September 1995 when he realized that the mother’s cervix was prematurely dilating. At that point he made the diagnosis of an incompetent cervix.

Trial was scheduled for June 2004 and settlement was reached several weeks prior to that date.

Attorneys for Lubin & Meyer represented the plaintiff in this lawsuit.

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