$2M settlement in brain damage case resulting from failure to respond to fetal distress

2003 Medical Malpractice Settlement Report

Two million dollar settlement for failure to respond to fetal distress resulting in severe and permanent damage to infant during delivery

The minor plaintiff is a four-year-old boy who suffers from severe and permanent brain damage as a result of the substandard care rendered to his mother by the obstetrical nurse caring for her during labor and delivery on May 9, 1999.

Upon admission, the plaintiff was placed on an external fetal monitor, and the fetal heart rate was noted to be in the 140’s, reactive, and good long-term variability was present. The plaintiff was evaluated by the physician and determined to be in active labor. At 1:45 a.m., the physician documented that the fetal heart rate was in the 130’s with some variable decelerations, and that the plaintiff was fully dilated. The plan was to have the plaintiff start pushing, and to decrease the epidural pump. According to the plaintiffs' expert physician, the fetal monitor tracings from the time of admission (10:30 p.m. ) until 2:00 a.m. were reactive and reassuring.

At 2:00 a.m., the defendant documented that the fetal heart rate was in the 120’s, with decelerations to 80-90 with contractions, with slow recovery, and "head stimulation with effect. " At 2:30 a.m., the defendant documented that the fetal hear rate was in the 140’s with accelerations to 160, and late decelerations to 90-100, with good response to head stimulation. She noted "slow progress with pushing. " At 2:50 a.m., the defendant noted that the fetal heart rate baseline increased to 170 at times, and that the IV was infusing wide open. At 3:00 a.m., the defendant initiated a Pitocin drip at 2 mu. per a prior order by the physician. At 3:05 a.m., the defendant documented that the fetal heart tracing showed a baseline of 170-180, with decelerations to 90.

Plaintiffs' expert review of the fetal monitor tapes between 2:00 a.m. and 3:05 a.m. finds a significant change in the fetal heart tracing. Plaintiffs' expert states that there was decreased variability, recurrent decelerations in the fetal hear rate, and a rising fetal heart rate baseline. These findings were non-reassuring and highly suggestive of fetal hypoxia, requiring immediate evaluation by a physician. There is no indication in the medical record record that the physician was present in the room between 2:00 a.m. and 3:05 a.m. and the evidence presented during discovery confirmed that the physician was not present and, in fact, had not been notified of any changes on the monitor during this time frame. The standard of care required the defendant to notify the physician of non-reassuring findings such as these and ensure that a physician evaluated the cause of these changes on the monitor. Furthermore, given this non-reassuring fetal heart tracing, the accepted standard of care required that the defendant perform intrauterine resuscitative measures including administering oxygen, positioning the plaintiff on her left side, and administering an intravenous fluid bolus. The only intervention performed by the defendant during this time was administration of an intravenous fluid bolus. Lastly, the defendant made the decision to start a Pitocin drip in the presence of a non-reassuring fetal heart tracing, and without physician evaluation of this tracing. These were all deviations from the accepted standard of care.

At 3:15 a.m., the defendant finally gave a verbal report to the physician. At 3:18 a.m., the physician was noted in the room. Oxygen was administered and the plaintiff was placed on her left side. Special Care Nursery and Pediatrics were summoned, and the plaintiff was prepped for delivery. At 3:51 a.m., the minor plaintiff was delivered vaginally, weighing 3742 grams (8 lbs. 4 oz. ). He was floppy, and without respiratory effort. A loose nuchal cord x2 was present, as well as terminal meconium. His Apgar scores were 2, 6, and 6 and cord pH was 7.24. The child was intubated, resuscitated, and transferred to the Special Care Nursery.

In the Special Care Nursery, the minor plaintiff was stabilized, and placed on a ventilator. At 6:10 a.m., he was transferred to Children’s Hospital. While at Children’s Hospital, he experienced seizure activity and head CT scan at approximately 9 hours of life showed a small subdural hemorrhage, and brain MRI performed on his first day of life revealed findings consistent with hypoxic/ischemic changes. There were additional findings of global organ involvement. Today, the minor plaintiff has been diagnosed with cerebral palsy and spastic quadriplegia. He is confined to a wheelchair and he cannot walk, talk, or hold his head upright. He is dependent upon others for all aspects of his daily living and he will remain so for the rest of his life.

During discovery, the defendant argued that the fetal heart rate tracing was reassuring right through until delivery. The case was settled prior to assignment of a trial date.

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

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