$4 million settlement for injuries caused by fetal distress
2006 Medical Malpractice Trial Report
Birth Injury: Failure to respond to fetal distress results in severe and permanent brain damage to minor plaintiff.
In August of 1998, the plaintiff was a 34 year-old woman expecting the birth of her first child on or about August 31, 1998. The plaintiff was admitted to the hospital on the afternoon of August 26, 1998 with complaints that she had been leaking small amounts of fluids since very early that morning. Testing confirmed that she had ruptured membranes. The plaintiff also conveyed that she had felt good fetal movement earlier that morning but that by the afternoon she was unable to detect any signs of movement. The plaintiff was hooked up to an electronic fetal monitor to assess fetal well being as well as to determine the frequency of the plaintiff’s contractions. The plaintiff was unaware of any contractions, but the external fetal monitor displayed mild contractions every 5 to 9 minutes. The baby’s heart rate was reactive with a baseline in the 140’s and no decelerations. Pitocin, a drug used to stimulate labor, was ordered at this time and was subsequently started at 2mu/ml at 4:30 p.m.
At 6:05 p.m., the nurse attending to the plaintiff oted decreased long-term variability and called the attending physician, Defendant #1, to view the strip. A decrease in long-term variability can indicate that the baby is experiencing some stress, or distress, and signals that the baby requires vigilant monitoring. The nurse waited a considerable amount of time for Defendant #1 to arrive and, in the mean time, additional signs of fetal distress were noted. Defendant #2, a labor nurse, came on duty at 7:00 p.m. and, noting the decreased long-term variability, put a second call in to Defendant #1. The nurse further noted a moderate amount of meconium stained fluid which is yet another warning sign that the fetus is undergoing stress, especially when it occurs in the presence of other signs of fetal hypoxia such as decreased variability. At 7:16 p.m. the nurse noted particulate meconium which suggests that there is little or no amniotic fluid present. To make matters worse, the nurse continued to note a decrease in the long term variability. Defendant #1 finally arrived at 7:30 p.m. to view the strip and to insert an internal fetal scalp electrode (FSE) to better evaluate the fetus and to trace the fetal heart rate. The plaintiff was given 5mg of the narcotic Nubain and one hour later, at 8:30 p.m., her contractions heightened and became very strong. Long-term variability was still decreased and continued to be decreased throughout the night and early morning hours. Short-term variability was absent for much of the same period of time.
At midnight of August 27th, a resident physician, Defendant #3, was called to review the tracing after defendant #2, noted a number of late decelerations. Defendant #3 was in to review the tracing at 12:03 a.m. and Defendant #1 returned to review the strip at 12:23 a.m. No steps were taken to expedite delivery despite the prolonged decrease in long and short-term variability, meconium and now presence of decelerations. At 12:30 a.m., Defendant #2 noted another deceleration to 60 for 2 minutes with fair recovery to baseline. Late decelerations and delayed recovery to baseline are signs of fetal hypoxia. At 1:20 a.m., Pitocin was again increased. In view of the signs of fetal hypoxia, increasing the Pitocin was inappropriate. At 1:25 a.m. there was another deceleration to 55-60 b.p.m. for approximately 60 seconds and the baseline was starting to escalate. Defendant #3 was both present and aware of the changes on the monitor yet took no steps to expedite delivery. At 2:32 a.m., Defendant #2 again notified the physician defendants of the changes on the monitor.
At 2:43 a.m., the plaintiff was pushing. This marked the beginning of the second stage of labor. From this point on, the baby’s heart rate becomes tachycardic at times and there are numerous decelerations with decreased to absent short-term variability. At 4:10 a.m., Defendant #1 recognizes that the baby must be delivered and the Pitocin was subsequently shut off, and scalp stimulation was attempted. These steps proved futile, however, as shortly thereafter the baby’s heart rate dropped to 60 bpm and did not recover to baseline.
After three additional decelerations with slow recovery, Defendant #1 tried to place a new FSE. Between 4:15 and 4:31 a.m. Defendant #1 left the plaintiff’s room and was watching the monitor from the central nursing station in order to give herself some “quiet time to think about this complicated situation. ” At that point, Defendant #1 claims that she paged the on-call anesthesiologist, Defendant #4, in preparation for an emergency Cesarean section. By 4:36 a.m., the fetal heart rate went into a terminal bradycardia, indicating further that the baby was experiencing the cumulative effects of hypoxia.
Defendant #1 testified that the anesthesiologist was paged two more times after the initial page and that she waited at least 20 minutes for anesthesia. There is no mention of any delay or wait for anesthesia anywhere in the medical records. However, defendant physicians made the decision to proceed with an emergency Cesarean section without the anesthesiologist. They gave the plaintiff a local anesthetic in order to make their incisions. Meanwhile, the anesthesiologist, Defendant #4, was sleeping in the call room with the air conditioner running, unable to hear his pages. He finally awoke when the call room telephone rang. He looked at his pager and noted that he had missed several calls and that one pager listed “7209 C-section room. ” Defendant #4 testified that he went directly to the C-section room. The Obstetrical Anesthesia Record reflected that Defendant #4 arrived in the C-section room at approximately 4:50-4:51 a.m. Upon arrival in the C-section room, Defendant #4 immediately topped off the epidural, and shortly after that, communicated to Defendant #1 to continue with the C-section. The minor plaintiff was delivered at 4:54 a.m. through particulate meconium. She was limp, apneic and cyanotic with Apgar scores of 1, 2, and 2. She was immediately intubated and taken to NICU.
Once in the NICU, the minor plaintiff was diagnosed as suffering from hypoxic ischemic encephalopathy, severe metabolic acidosis, and respiratory depression. On the first day of life 8/28/98, the minor plaintiff’s head ultrasound and cranial CT were within normal limits. Two weeks later, however, ischemic changes in the post-frontal and basal ganglia area were seen on MRI confirming the diagnosis of hypoxic ischemic encephalopathy.
Today, the minor plaintiff suffers from profound brain damage as a result of the delay in her delivery. She is currently almost 8 years old. She cannot walk, talk or even hold her head upright unsupported. Most of her feeds are given through a G tube although in 2002 she tasted pureed food by mouth. She continues to take medication for a seizure disorder. She has been diagnosed with spastic quadriparesis, microcephaly and marked gross/motor delays.
During the course of discovery, Defendants #1-3 maintained that there was no evidence of fetal hypoxia prior to the onset of the terminal bradycardia and thus there was no need to perform an emergency Cesarean section prior to that point. Defendants # 1-3 also alleged that they waited at least 20 minutes for anesthesia and that was the reason for the complications during delivery and the baby’s ultimate injuries. Defendant #4 testified that it was true that he slept through multiple pages but that no one mentioned anything to him about an “anesthesia delay” and that the first that he heard of any delay was from his colleagues. Defendant #4 was not aware of a delay in his response for anything more than several minutes and this could not account for the child’s profound injuries. There was disagreement between the defendants as to when the anesthesiologist was paged and when he arrived.
Prior to trial, the parties entered into negotiations which resulted in settlement of the matter in two parts due to the fact that the defendants had separate insurers. The case settled for a total of Four Million Dollars ($4,000,000).
Lubin & Meyer lawyers represented the plaintiff in this medical malpractice lawsuit.
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