Lawsuit for Girl Diagnosed with Cerebral Palsy Brings $4.96M Settlement in Massachusetts

2015 Medical Malpractice Trial Report

Failure to properly manage labor and delivery results in hypoxic brain injury and cerebral palsy in newborn

In 2007, Plaintiff was pregnant with her first child when she presented to the hospital at 6:30 a.m. reporting contractions. She was placed on a fetal heart monitor and managed by a nurse and two resident physicians for the majority of the day. While an attending was present on the unit, he did not personally examine or evaluate the plaintiff until approximately 8 p.m.

In the morning, the plan was made for vaginal delivery and Pitocin was begun just after 12 p.m. in order to help labor progress. At approximately 1:30 p.m., the nurse noted variable decelerations of the FHR down to 90 and she increased the Pitocin amount. Plaintiff’s expert has reviewed the fetal monitor strips and opined that starting at approximately 12:30 p.m. there were worrisome changes on the monitor which continued throughout the day and warranted interventions and/or delivery by cesarean section to prevent injury to the baby. Despite the presence of these changes, no interventions were initiated and in fact the Pitocin rate was continued over the course of the day before it was shut off at 7:30 p.m. because of changes on the monitor. By this time, the resident physicians were documenting changes on the fetal monitor and had begun the plaintiff on oxygen to assist the fetus. Position changes were attempted but the monitor continued to show decelerations and decreased variability. The attending physician came to the room himself to evaluate the plaintiff at 8:15 p.m. It was his opinion that the monitor pattern was reassuring and told the residents to continue with labor. With pushing the decelerations became more severe and prolonged. At 11:00 p.m. the decision was made to use a vacuum assist to expedite delivery. At 11:11 p.m., the baby was delivered limp, apneic, pulseless, and meconium stained. Intubation was performed. Apgars were 0, 1, and 7. The baby was transferred to the NICU for further management. An MRI at 6 days of life revealed findings consistent with hypoxic ischemic injury to the brain.

The plaintiffs’ experts were prepared to testify that the fetal tracings revealed minimal variability, and repetitive variable and late decelerations that warranted interventions and delivery.

The defense was prepared to testify that the fetal heart rate patterns were not worrisome and that the attending was aware of all changes on the monitor. Two fetal scalp samplings were taken later in the evening which were within normal range indicating a well oxygenated baby not in distress. It was the defense position that this child’s injuries predated the labor and delivery and could not have been prevented by earlier delivery.

The minor plaintiff diagnosed with cerebral palsy, now 8, cannot walk or talk; she is fed through a G-tube, and receives occupational, physical and speech therapy. She will require up to 24-hour care for the rest of her life. The case settled in October for one defendant’s policy minus the cost of defense totaling $4,960,000.

Lubin & Meyer attorneys Andrew C. Meyer, Jr. and Krysia Syska represented the plaintiff in this medical malpractice lawsuit.


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