Legal Review & Commentary

Shoulder dystocia during delivery of 10-pound baby leads to $700,000 settlement

By Jon T. Gatto, JD & Blake J. Delaney, JD, Buchanan Ingersoll & Rooney, Tampa, FL

News: A pregnant woman with a fetus weighing nearly 10 pounds was admitted to the hospital for induction of labor even though she was never told of her baby's large size or given the option of a cesarean. During delivery, a shoulder dystocia occurred, and the baby suffered permanent Erb's palsy on his left side. The mother sued the obstetrician for medical malpractice, and the physician defended the suit by claiming that he did not act negligently and that shoulder dystocia can occur in any delivery. Prior to trial, the parties settled the case for $700,000.

Background: A pregnant woman was admitted to the hospital for induction of labor due to macrosomia, meaning that her baby was large in size, although the mother was never informed of this diagnosis. She also was not made aware of the risks associated with a vaginal delivery of a macrosomic fetus, including shoulder dystocia, brachial plexus paralysis, brain damage, or fetal demise, nor was she given the option of a cesarean. During delivery of the 9-pound, 13-ounce baby, a shoulder dystocia occurred. The mother, on behalf of her baby, sued the attending obstetrician and claimed that the maneuvers required to perform the delivery safely were not used and that failure caused her son to suffer severe and permanent brachial plexus paralysis of the left arm, shoulder, and hand, known as Erb's palsy. The plaintiff also alleged negligence relating to the defendants' failure to inform her of the macrosomia diagnosis and failure to give her an option of cesarean delivery. Arguing that future surgeries, physical therapy, and vocational rehabilitation would be required, the plaintiff sought damages of $805,200 for future medical costs, $288,200 for lost earning capacity, and $250,000 for pain and suffering. The defendant maintained that there was no negligence and that shoulder dystocia can occur in any delivery, regardless of the estimated fetal weight and regardless of whether proper maneuvers are used to deliver the shoulder dystocia. As a result, he argued, offering a cesarean as an option was not warranted. The plaintiff demanded $1 million in damages, which the defendant countered initially with an offer of $200,000 and then $500,000. The parties ultimately reached a $700,000 structured settlement providing for a college fund and periodical lump-sum payments to the child until the age of 35.

What this means to you: "Lawsuits arising from shoulder dystocia-related injuries cost millions of dollars each year and constitute the second-highest category of payments in obstetrical medical professional liability claims," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD. "In addition, such injuries cause untold pain and suffering for babies and their families." The physician in this case defended on the grounds that shoulder dystocia is rare and has a high false-positive rate. Therefore, argued the physician, it is impossible to develop a workable clinical protocol to assess the risk. While this defense may have been persuasive in the past, that is no longer the case, according to Barton. There are now better tools for assessing the risk of shoulder dystocia thanks to advances in informatics and other disciplines. (See Dyachenko A, Fahey J, Mighty H, et al. Prediction of risk for shoulder dystocia with neonatal injury. Am J Obstet Gynecol 2006; 195:1,544-1,549; Hamilton E, Wright E. Labor pains, unraveling the complexity of OB decision making. Crit Care Nurs Q 2006; 29:342-353.) Accordingly, due to these advances, obstetricians can and should share more information with the expectant mother so that she can make a fully informed decision. Barton observes that the physician in this case was overly paternalistic in dealing with this patient. He dismissed the diagnosis of macrosomia, which is a term usually used to describe a baby weighing more than 9 pounds. He never informed the mother of the diagnosis. Accordingly, he never made the mother aware of the risks associated with a vaginal delivery, nor did he make her aware of alternative delivery options such as a cesarean. "Clearly this case also involves a lack of informed consent," says Barton. While there is concern regarding an increased rate of cesarean, she does not believe that it should affect a physician in providing this type of advice to expectant mothers. Barton contends that the use of appropriate screening and assessment protocols will result in an "appropriate" rate of cesarean. Barton observes that, in addition to the lack of informed consent issue, there was a clear mismanagement of the shoulder dystocia once it occurred. Thus, it was wise for the defendant to settle the case. With the emphasis on patient safety, physicians and hospitals would be well advised to investigate comprehensive screening programs for shoulder dystocia and to utilize universal implementation of shoulder dystocia prevention (management) protocols. Particularly, joint physician-nurse training in shoulder dystocia management could yield positive results by encouraging the use of common terminology and team building. This case underscores the need for health care practitioners to:
1) develop protocols based on scientifically validated risk factors for shoulder dystocia;
2) universally screen patients for such factors; and
3) present options for patients whose risk factors place them at greater risk for shoulder dystocia. Such programs must be monitored, audited, and the data collected and shared to increase evidence-based practice.

Reference

San Diego County (CA) Superior Court, docket information withheld.