Baby’s severe brain injury lawsuit settles for $3.5 million

2008 Trial Lawyers Report

Birth injury settlement: Nurse midwives, student nurse midwife and registered nurse and physician responded improperly to signs of fetal distress resulting in permanent brain damage.

This case involves a now 7 year old boy with significant, permanent brain damage caused by in utero hypoxia. The defendants are certified nurse midwives, a student nurse midwife, registered nurses and a physician. The plaintiffs’ claim is that toward the end of pregnancy and on the day of delivery the defendants responded improperly to apparent signs of fetal distress allowing the unborn baby to become more and more hypoxic, ultimately resulting in permanent brain damage. The defendants deny that their care was the cause of the child’s neurological damage.

The plaintiff was expecting her first baby on 08/02/00. On 7/21/00, at 38 weeks gestation, she placed a call to the midwifery service reporting that she didn’t feel well and that her baby was moving less than usual. The responding defendant midwife addressed the mother’s complaints of cough, but, did not address the decreased fetal movement in any way.

Two days later, on 7/23/00, the plaintiff presented to hospital, again complaining of decreased fetal movement. At approximately 10:00 a.m., the defendant registered nurse placed the patient on the fetal monitor and immediately noted worrisome findings in the baby’s heart rate – decelerations and absence of accelerations. This registered nurse and the defendant student nurse midwife would stay with the patient until the baby was ultimately delivered hours later. For the most part, they provided care without the supervision of the attending obstetrician or the supervising certified nurse midwife. At no time did they take any steps to improve blood flow and oxygen to the baby, i.e. : administer an IV fluid bolus, adjust the maternal position, administer oxygen.

At some time during the morning, the supervising certified nurse midwife was contacted and was informed of the presence of the patient and of the non-reassuring appearance of the fetal heart rate pattern. She chose not to come to the hospital as the attending obstetrician was on the premises. The obstetrician claims that he was unaware that the “midwife” with the patient was a student and that in any event, it was not his responsibility to supervise her.

At 11:30 a.m. the defendant obstetrician ordered a biophysical profile, which was resulted by 12:00 p.m. as 2/10 – an ominous score requiring immediate delivery of the baby. The defendant obstetrician did not obtain the patient’s consent for Cesarean section until 1:00 p.m. and did not relay to the anesthesiologist that the procedure needed to be done emergently. In the meantime, the nurse and the student nurse midwife continued to attend to the patient and still did not undertake any intrauterine resuscitation measures.

The patient was not taken to the OR until after 3:00 pm. The baby was delivered by Cesarean section at 3:41 p.m. At delivery, his heart rate was only 20, he was floppy and was not breathing. Cord pHs were acidotic at 7.02 and 7.04. Apgar scores were 3 and 7. In the nursery, the child had hypocalcemia (low blood calcium levels), thrombocytopenia (low platelets), and hematuria (blood in his urine) – all signs of in utero hypoxia. He has since been diagnosed with hypoxic ischemic encephalopathy, cerebral palsy and global developmental delay.

Today, the minor plaintiff lives with devastating inury. He cannot walk or speak. He cannot hold his head up or sit unattended. He feeds via a gastrostomy tube. The minor plaintiff is completely dependent for all activities of daily living.

The plaintiffs claim that the defendants were negligent when each failed to properly respond to the obvious signs of fetal compromise – decreased fetal activity, a non-reassuring fetal heart rate pattern and a low biophysical profile score. The defendants claim that their care was in keeping with the standard of care and that nothing done or not done contributed to the minor plaintiff’s neurological injury.

The case settled for $3,500,000 before the scheduled trial date.

Lubin & Meyer attorneys represented the plaintiff in this birth injury malpractice case.

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