Jury Awards $2.7 Million To Family of Stillborn Baby

Plaintiffs claimed obstetrician violated standard of care by failing to recognize signs that indicated a Casarean section delivery.

Trial Lawyers Report, 2001

The plaintiffs were parents expecting the birth of their second son on January 5, 1997. Their first son had been delivered by the same Obstetrician five years earlier. That labor resulted in a Cesarean section delivery due to failure to progress, arrest of dilation, chorioamnionitis (infection of the uterus), and cephelopelvic disproportion (baby’s head had difficulty fitting through the birth canal). The first baby weighed 7 pounds, 1 ounce, and is healthy today.

The second pregnancy was unremarkable and all signs indicated a healthy fetus when the plaintiffs presented to the hospital at term on January 5, 1997 at 5:30 a.m. after the mother’s water broke. On admission to the labor and delivery unit, she was 80% effaced and 2 cm dilated at station -2. Electronic fetal heart monitoring (EFM) showed a baseline fetal heart rate (FHR) of 130-140, average long term variability, no decelerations, and positive accelerations, all of which were reassuring signs.

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When the obstetrician first saw the mother at approximately 11:00 a.m., she was 90% effaced and 5 cm dilated at station -2. He noted her previous Cesarean section in 1992 for failure to progress, and that she had opted for a trial of labor in the hopes of delivering vaginally. This is known as a vaginal birth after Cesarean (VBAC).

At 12:35 p.m. nursing noted occasional mild variable decelerations to 90 beats per minute with return to a baseline of 125. At approximately 1:55 p.m., an epidural was placed by anesthesia. At 2:10 p.m., the obstetrician noted that the mother had only dilated to 6 cm, or 1 cm in the previous 3 hours. Labor was augmented with Pitocin at approximately 3:00 p.m. The mother developed a fever of 99.7 at 3:00 p.m. that increased to 101 at 4:45 p.m. The mother was given penicillin and Tylenol. When the obstetrician examined the mother at 5:10 p.m. he noted she was 100% effaced, 8-9 cm dilated and at station 0 to +1, but was unable to push through contractions.

At 5:45 p.m. nursing noted an increase in baseline FHR with positive accelerations and occasional variable decelerations. EFM tapes showed poor variability and tachycardia (elevated fetal heart rate). The mother still had a fever of 100 at 6:00 p.m. despite the Tylenol. At approximately 6:20 p.m. the mother was pushing with contractions, but still had a rim of cervix.

Nursing documented at 6:48 p.m. that the FHR was decreasing with contractions and increasing after contractions to above the baseline. The mother was positioned on her left side and continued to push. When the obstetrician examined the mother at 7:05 p.m. he noted she was beginning the second stage of labor, although she still had an anterior lip and thus was still not fully dilated. He also noted the fetal tachycardia with diminished variability.

The second stage of labor lasted one hour and twenty six minutes. At 8:24 p.m. the baby’s head was delivered over a midline episiotomy. The head was occiput anterior and required compression of the episiotomy in order to completely deliver the face and chin. A shoulder dystocia was immediately recognized. From 8:24 p.m. to 8:26 p.m., the obstetrician attempted to free the trapped shoulders by using the McRobert’s position with suprapubic pressure and the Wood’s corkscrew maneuver, but both were unsuccessful. The anterior shoulder was tightly impacted against the symphysis pubis and there was no progress in delivery.

The same maneuvers were attempted from 8:26 p.m. to 8:28 p.m. with the mother on her left side. She was then placed on all fours from 8:28 p.m. to 8:31 p.m. with the same maneuvers applied. Finally with additional compression and upward traction on the rectum the posterior shoulder was able to be delivered and complete delivery ensued.

The baby was delivered without a heart rate or respirations. He weighed 8 pounds, 13 ounces. Anesthesia was present at delivery and the baby was intubated immediately and resuscitation efforts were initiated. At 8:55 p.m. the baby’s pupils were noted to be fixed and dilated. Initial cord pH was 6.86, CO2 116, pO2 21 and HCO3 21.4. The baby was pronounced dead at 9:53 p.m.

The plaintiffs introduced evidence that the obstetrician violated the standard of care by failing to recognize the worrisome signs that indicated a Cesarean section delivery. The mother’s failure to progress, her infection, the worrisome changes on the EFM, and the prior labor resulting in a Cesarean section all required the obstetrician to deliver this baby by Cesarean section instead of continuing with the trial of labor. Had the baby been delivered by Cesarean section, more likely than not he would be alive today.

At various times in the evening, both parents asked the obstetrician to perform a Cesarean section delivery, but the obstetrician refused opting instead to proceed with the riskier VBAC. The evidence was that a Cesarean section delivery could have been performed at anytime prior to the vaginal delivery.

After the baby’s head was delivered, he was not able to take a breath because his chest was being compressed in the birth canal. The baby could not receive oxygen from the umbilical cord because that was also being compressed in the birth canal. The obstetrician acknowledged that humans experience permanent neurological damage and even subsequent death when tissues and organs are deprived of oxygen for more than 3-4 minutes. Even though the baby was stuck in the birth canal for seven minutes, he did nothing else to try to free the baby other than the maneuvers previously mentioned. He was untrained and unfamiliar with how to fracture a baby’s clavicle to deliver an impacted shoulder in an emergency situation.

The defendant put forth evidence that the standard of care did not require a Cesarean section at any time. The baby was never hypoxic and was never in any distress prior to becoming trapped in the birth canal. The defendant also elicited testimony from every medical witness that shoulder dystocia cannot be predicted and the obstetrician had no way of knowing this unpredictable event would occur. Once faced with a shoulder dystocia, the obstetrician performed all of the recognized obstetrical maneuvers to free the baby’s shoulders and deliver the baby. The defendant also put forth evidence that the unforeseeable event was unfortunate, but was not caused by any negligence on the part of the obstetrician.

The jury deliberated for six hours over two days before rendering its verdict in favor of the plaintiffs, awarding one million dollars to each parent for the loss of their relationship with their son. There was no evidence of, and no claim made for, any conscious pain and suffering of the baby.

Lubin & Meyer attorneys represented the plaintiffs in this lawsuit.

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