Baby’s brain damage lawsuit settled for $4.85 million

After delivery baby developed multiple medical problems consistent with severe hypoxic ischemic encephalopathy (brain damage)

Trial Lawyers Report, 2008

In 1998, the minor plaintiff’s mother was a 21-year-old young woman expecting the birth of her first child on 7/16/98.

On 6/29/98, the minor plaintiff’s mother was sent to the hospital for a PIH (pregnancy induced hypertension) evaluation. According to the medical records a NST (non-stress test) was performed which was reactive and she was sent home to resume normal activity. These monitor strips were not able to be found during the course of litigation. On 7/13/98, the minor plaintiff’s mother was again seen for a prenatal visit and sent to the hospital for evaluation of decreased fetal movement. At the hospital she had another reactive NST and PIH labs returned within normal limits. The exam from this date notes positive fetal movement and she was sent home on PIH precautions with instructions to return the next day for a blood pressure check. On 7/14/98, the minor plaintiff’s mother returned to the hospital pursuant to the instructions for a scheduled blood pressure check. During this exam, she was noted to be having irregular contractions and was again discharged home with PIH precautions. There is no mention of any decreased fetal movement on this date.

On the following day, 7/15/98, the minor plaintiff’s mother called her obstetrical practice to report decreased fetal movement. She was instructed to drink something sweet and if it did not improve in an hour, then she should go to the hospital. Things did not improve so she went to the hospital. Upon arrival, she was sent to the triage area of Labor and Delivery for the performance of a NST. The NST was reported as Non-Reactive so the physicians ordered a Biophysical Profile which was noted to be 2/8 (2 for fluid). A normal and healthy child should score 8/8. The NST and BPP were both clearly abnormal and non-reassuring indicating that there was a problem and the child should be immediately delivered. The defendant obstetricians were aware of the non-reassuring fetal testing as early as 6 p.m. on 7/15/98. Rather than move for immediate cesarean, the defendants decided to perform an OCT (oxytocin challenge test). The minor plaintiff’s mother was put on the fetal monitor at 6:35 p.m. and the OCT is documented as beginning at 7:10 p.m.

The record indicates the onset of strong, regular contractions at 7:15 p.m. The nursing defendant noted that the FMT showed a baseline of 150-154 bpm with a question of late decelerations. However, she was “unable to be certain” due to an inability to monitor the contractions accurately. The Nurse defendant testified that she was palpating the contractions and then listening to the baby’s heart rate and after the contraction ended she was hearing the heart rate go down. She testified that the strip for the first 20-25 minutes of the test was not reactive, there was minimal variability, she was questioning late decelerations and so she notified the obstetricians. There is no indication in the medical record that there was an exam by the attending to ensure fetal well being. Despite the strips, the Pitocin was increased and the challenge test continued. The Nurse defendant continued to question late decelerations. Variability was minimal until 8:50 p.m. and then was recorded as absent.

According to the record, at 8:00 p.m., the attending obstetrician reviewed the fetal monitor tapes. Despite what was being seen on the strips and what was noted in the record, he failed to order an immediate cesarean section. At some point prior to 8:30 p.m., the attending obstetrician asked another attending obstetrician to assume care of the patient so he could go evaluate a patient who was having a gynecologic problem and needed to go to the OR. This second OB attending defendant is noted in the room looking at the fetal monitor strips as early as 8:23 p.m. Despite the presence of late decelerations and minimal variability on the OCT in conjunction with the prior non-reassuring testing, this defendant failed to order an immediate delivery of the child. Rather he decided to place a fetal scalp electrode to get a better reading of the fetal heart rate. Just after 9:00 p.m. this defendant ruptured her membranes revealing meconium stained fluid. The variability with the internal clip was absent. The decision was then made for delivery via cesarean section and the baby was delivered at 10:04 p.m. There was thick, pea soup meconium at delivery. The baby’s Apgar scores were 1/4/7/8 at 1, 5, 10 and 15 minutes, respectively. A cord blood pH was not obtained due to insufficient cord blood and there was meconium below the cords.

After delivery, the minor plaintiff developed multiple medical problems all consistent with severe hypoxic ischemic encephalopathy (brain damage). After discharge, she was diagnosed with cerebral palsy, acquired microcephaly and spastic quadriparesis. Today at age 9, she continues to have seizures; she feeds by G-tube; she cannot sit unsupported; she is confined to a wheelchair; and she can not speak.

During the course of litigation, the defendants alleged that the standard of care allowed for a “Trial of Labor” or oxytocin challenge test (OCT) in the setting of a non-reactive non-stress test and abnormal BPP. The defense also planned to argue that the child’s injuries occurred at some point in the 12-24 hours prior to the mother’s arrival to the hospital on 7/15/98 and that earlier delivery would not have affected the child’s condition at birth. Trial was schedule to begin on June 2, 2008 and the case settled prior to that time.

Lubin & Meyer birth injury lawyers represented the plaintiff in this medical malpractice lawsuit.

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