$4.9M settlement for birth injury resulting in cerebral palsy

Settlement reached after mediation—failure to treat signs and symptoms of fetal distress result in permanently brain damaged child resulting in cerebral palsy

Medical Malpractice Trial Report, 2007

In January 2000, the plaintiffs were expecting the birth of their 3rd child. The prior two pregnancies had been complicated by premature and difficult deliveries. The plaintiff was very concerned about this pregnancy and stated she wanted a cesarean section delivery to avoid any of the problems she had experienced with her prior deliveries. A cerclage was used in order to carry the pregnancy to term but rather than schedule a c/s the defendant obstetrician elected to induce the plaintiff using Pitocin. On January 22, 2000, the plaintiff mother was admitted to the hospital for induction of labor with the use of Pitocin. Pitocin was begun at approximately 10:30 a.m. and the plaintiff was under the care of her obstetrician and three labor nurses (all of whom were defendants). Pitocin was periodically increased and contractions began. Beginning at 11:32 a.m. and continuing until approximately 1:42 p.m. the defendant nurses were noting frequent contractions with variable decelerations of the fetal heart rate as low as 80 beats per minute. By 1:55 p.m. the nurses noted that the variable decelerations had a late component and the plaintiff had begun leaking green meconium stained amniotic fluid. Between 1:55 p.m. and 3:15 p.m. the nursing documentation notes non-repetative late decelerations of the fetal heart rate. The defendant obstetrician evaluated the plaintiff on at least three occasions between 12:15 p.m. and 3:15 p.m. and was aware of the worrisome changes in the fetal heart rate and the presence of meconium, yet no steps were taken to stop the Pitocin or get the baby delivered.

Starting at 3:30 p.m. until the time of delivery at 7:18 p.m., the nurses and obstetrician continued to note the presence of late decelerations with slow return to baseline as well as minimal long-term variability (all signs of fetal distress). Despite these findings, delivery was not expedited, the plaintiff was not offered a cesarean section delivery and Pitocin was continued.

The plaintiff delivered her baby boy at 7:18 p.m. He was significantly depressed at birth with Apgar scores of 2, 6 and 7. He was not breathing and required assisted ventilation and oxygen. Within 8 hours after birth, the baby began exhibiting seizures, which was treated with Phenobarbitol. He was transferred to Children’s Hospital on 1/23/00 for further management of his seizures. A head MRI performed on 1/28/00 showed findings consistent with HIE (hypoxic ischemic encephalopathy). Further complications were also attributed to HIE and birth asphyxia. Today, the child in seven years old and has been diagnosed with cerebral palsy. He can not walk, talk or sit unsupported. He requires a feeding tube and assistance with all aspects of daily living. He will never live independently.

The plaintiffs were prepared to present expert testimony that there were signs of fetal distress requiring delivery as early as 1:40 p.m. and the defendants failed to respond to these signs with intrauterine resuscitation and cesarean section delivery. As a result, the plaintiffs' experts were prepared to testify that the baby suffered a prolonged decrease of oxygen to the brain resulting in his profound brain damage at birth.

The defendants were prepared to present expert testimony that there was not evidence on the fetal monitor strips that warranted earlier delivery via cesarean section and that the baby’s presentation at birth did not account for the severe injuries he went on to display and that it was more likely the child suffered some injury before his mother presented to the hospital for induction.

The case was scheduled for trial in May and settled after mediation for $4,900,000.

Lubin & Meyer attorneys represented the plaintiff in this lawsuit.

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