$2.5 million malpractice settlement for infant’s brain damage at birth

Trial Lawyers Report, 2006

Failure to diagnose and treat signs and symptoms of persistent fetal heart rate decelerations resulting in brain damage

The plaintiff is a four year-old boy who suffered a severe and permanent neurological injury as a result of the defendants’ failure to properly recognize and respond to fetal heart rate abnormalities.

The plaintiff’s mother entered the hospital on May 3, 1999 at 11:00 p.m. at 31 6/7 weeks gestation with symptoms of fluid leaking from her vagina. The fetal heart rate was noted to be reactive with a baseline rate of 140-150 beats per minute (BPM) and average long-term variability. These were good signs that the baby was doing well. The plaintiff’s mother was evaluated and premature rupture of the membranes was confirmed. External monitoring revealed contractions every 2-3 minutes and the plaintiff’s mother was given betamethasone (a steroid to facilitate fetal lung maturity), magnesium sulfate and intravenous antibiotics for unknown group B beta strep status.

The labor was uneventful throughout the night and into the morning. As the labor progressed in the morning, however, problems with the baby’s heart rate began to develop. As the plaintiff’s mother neared 7 cms. dilated (at 7:45 a.m. ), the fetal heart rate was noted to drop to 90 BPM for 4 minutes with a slow recovery to baseline. At this point, the decision was made to bring the plaintiff’s mother to the OR for a cesarean section. At 8:00 a.m. the plaintiff’s mother was in the operating room being monitored by the defendants but no cesarean section was performed. The fetal heart rate was noted to drop to 60 BPM and essentially remained at that level until 8:55 when the defendants finally decided to do an emergency cesarean section.

The minor plaintiff was born severely bruised and profoundly depressed. He required resuscitation and was transferred to the neonatal intensive care unit (NICU) for further care. The arterial cord pH at delivery was 6.94, indicating a serious lack of oxygen. Head ultrasounds on days 3 and 6 of life revealed a right subependymal hemorrhage and evidence of early periventricular leukomalacia (PVL). The minor child now carries the diagnosis of spastic diplegia. He is required to use braces or crutches to ambulate for any distances.

The plaintiff’s experts were prepared to testify that the defendants were negligent when they delayed over 1 hour in performing a cesarean section in the setting of a premature child with a clear intolerance to labor. The plaintiff was further expected to present expert medical testimony that the minor’s brain injuries were consistent with lack of oxygen and were not related to his prematurity.

The defendants were expected to testify that there was no delay in performing a cesarean section in this case. The defendants were expected to present expert medical testimony indicating that it was appropriate to wait to perform a cesarean section due to the prematurity of the minor plaintiff. The defendants were further expected to present expert medical testimony that all of the minor plaintiff’s injuries were as a result of the prematurity and that the alleged delay in delivery played no part in this unfortunate outcome.

The case was settled one month prior to trial for $2,500,000.

Lubin & Meyer lawyers represented the plaintiff in this birth injury lawsuit involving a drop in fetal heart rate.

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