Legal Review & Commentary

Alleged delay in delivering baby leads to birth asphyxia, $20M settlement

By Radha V. Bachman, Esq.

Buchanan Ingersoll & Rooney PC

Tampa, FL

Lynn Rosenblatt, CRRN, CCM, LHRM

Healthsouth Sea Pines Rehabilitation Hospital

Melbourne, FL

News: A woman with a normal pregnancy was admitted to the hospital after going into labor. The woman first was seen by the attending OB physician, who later went off duty. Another physician assumed responsibility in the afternoon and was extremely busy. An examination of the woman showed that the baby was occiput posterior. On multiple occasions and between deliveries, the physician tried to rotate the baby, but was unsuccessful. Seven hours after the second stage of labor had begun, the woman was taken to the operating room for an emergency C-section. The baby was born dead, but later was resuscitated. The baby suffered from birth asphyxia and now has cerebral palsy with quadriplegia. The parties settled for $20 million.

Background: Looking forward to the birth of her first child, a woman presented to a hospital in the second stage of labor about 9 p.m. The first stage of labor had proceeded smoothly, and the woman's contractions appeared normal. The OB physician on duty initially saw the woman, but shortly thereafter, the physician's partner came on duty. At 9:40 p.m., the new physician saw the woman and determined that the baby was occiput posterior, or facing the mother's abdomen. Shortly after 11 p.m., the physician delivered the first of five babies that would be born over the course of the evening.

About 12:30 a.m., the physician saw the patient again and tried to manually rotate the baby but did not document this action in the patient's chart. Between 1:30 a.m. and 2:12 a.m., the physician delivered three more babies. At 2:30 a.m., the physician again visited the woman and noted that the baby still was in the anterior position. The physician planned to have the woman's epidural injected and then attempt delivery with forceps. If delivery with use of forceps was not successful, the physician was planning to take the woman for a C-section.

While the epidural was injected, the physician left to take a nap. At 3 a.m., the woman signed a consent form for the C-section, but the physician was not called until 4 a.m. After unsuccessfully attempting delivery with forceps, the woman was prepped for surgery. During this time, the fetal heart strip was showing an increased baseline with persistent variable decelerations. The physician called the original attending several times and indicated that he might need assistance with the delivery, but the original attending was at home, had gone back to sleep, and did not respond.

The woman finally was taken to the operating room at 4:27 a.m., at which point the electronic fetal monitor was disconnected and never reconnected. After the spinal block was administered, a nurse checked the fetal heart rate with a Doppler. Although she received a normal reading, no documentation was entered into the chart to that effect.

The baby ultimately was delivered at 5:06 a.m. and essentially was dead. Initial Apgar scores were 0, 0, and 0 at one, five, and 10 minutes. No neonatologists were available at the hospital for resuscitation, and the neonatal nurse practitioner did not arrive until seven minutes after delivery. Resuscitation efforts commenced, and a fetal heart rate finally was found 24 minutes after birth.

The baby suffered birth asphyxia with consequent athetoid and spastic cerebral palsy affecting her arms and legs. The baby also developed seizures.

The woman sued the hospital and the physicians for negligence. Experts for the plaintiff testified that both physicians violated the standard of care by failing to deliver the baby sooner. They testified that this failure led to the infant's permanent injuries. The plaintiff's experts also argued that the hospital's nurse failed to properly monitor the fetus just prior to and during the C-section. The plaintiff offered various testimonies showing that the nurse failed to comply with various hospital policies and procedures, and the testimony also indicated that the delay in resuscitation was a violation of hospital policy.

The defendants' experts testified that an eight-hour second-stage delivery complied with the standard of care, and that an unrelated and unanticipated cord occlusion minutes before deliver led to the baby's injuries.

Medical expenses were estimated to be in the range of $833,967. Future expenses were projected to be $13 million, with the child's life expectancy raning from as little as 31 years to 70 years.

The parties participated in mediation, which resulted in no resolution. Shortly after mediation, the parties entered into a settlement in the amount of $20 million, with the hospital paying about $9.9 million of that total.

What this means for you: Labor and delivery of a newborn baby is made up of two stages. During the first stage of labor, the infant positions itself into the birth canal as the mother's cervix thins (or effaces) and dilates (or opens). There are three defined phases within the first stage of labor: The early phase, from the onset of labor until the cervix is dilated to about 3 cm; the second active phase, with harder labor and which continues until the cervix is dilated to 7 cm; and the third and final phase, which is known as the transition to the second stage.

The early first phase of the first stage can last for hours, and the patient is generally encouraged to remain at home and engage in moderate activity while also timing her contractions. In the second active phase, contractions will be stronger, longer, and closer together. This is the time that the physician generally tells the patient to go to the hospital or birth center.

The active phase is usually about three to five hours, with contractions stronger and longer, separated by three to five minutes of rest. For first-time mothers, this second phase can extend out many hours and is contingent on the strength of the contractions, the size and presentation of the baby, and the mother's pelvic anatomy. The third phase of the first stage of labor, or transition, is the final step toward the second stage of labor or the birth of the baby.

Transition is the hardest phase, but it also generally is the shortest, lasting between 30 minutes and two hours. The cervix completes dilation to 10 cm, and the birth canal thins so that the baby's head is resting against the mother's perineum. Contractions are intense and close together, but once the cervix is completely effaced and dilated, the second stage of labor begins and ends with the birth of the infant.

During the second stage of labor, the baby's head will turn to one side, and the chin automatically will rest on the chest so the back of the head can lead the way. The cervix is fully dilated, and the baby's head and torso begin to turn to face the mother's back, as the head enters the birth canal. The baby's head will then begin to emerge, or "crown," through the vaginal opening. Once the head emerges, the head and shoulders again turn, allowing the baby to easily slip out. The entire process of the second stage generally lasts anywhere from 20 minutes to two hours. A second stage in excess of two and a half hours becomes suspect of possible problems for mother and infant.

In this case, the woman already was at the second stage of labor when she arrived at the hospital and was admitted to the birthing unit. Why she waited so long to get to the hospital is not addressed, but for a woman to arrive fully dilated should have signaled the nursing staff who admitted her that delivery was imminent within a relatively short time. From the narrative, there appeared to be no sense of urgency.

The woman was seen by the on-call OB and then his partner less than an hour later. The partner examined her and determined that the infant was in the posterior, or face up, position. This is not particularly uncommon, as studies have shown that many more babies are posterior at the beginning of labor than when they're born, and it is common for a baby's position to change during labor, often more than once. Estimates vary, but between 5% and 12% of babies are face-up at delivery, and the percentage is higher among first-time mothers. For a first-time mother who was completely dilated, the physician should have been more attentive to the possibility of a prolonged and dangerous labor.

Also troubling here is the lack of any documentation to support that the providers actually obtained ultrasound images or any other definitive diagnostic information from the woman. In fact, what is glaring about this case is the documentation, or rather lack thereof. There is no information provided about meconium-stained amniotic fluid, heart tones, deceleration and recovery during and after contractions, frequency and intensity of contractions, duration of fetal monitoring, the mother's pain intensity, or any other indications of a non-progressing labor and ensuing fetal distress.

It is standard practice in birthing units for highly trained nurses to observe and document a patient's labor intensely by reviewing fetal monitor strips at assigned intervals and to document that the nurse has done so by initialing the strip. Also, fetal monitoring generally continues throughout the delivery process, but that does not appear to have been the case here.

There is no information provided that the infant was in distress until 4 a.m., when the fetal heart strip was showing an increased baseline with persistent variable decelerations. At 4:27 a.m., the woman was taken to the operating room for a C-section, and the electronic fetal monitor was disconnected and never reconnected. This was most likely a huge divergence from standard hospital policy, as this infant already was showing compromise, and a Doppler is not sufficiently sensitive to be reliable, other than as a quick measure for transferring the patient from the labor area to the operating room.

The entire episode speaks to an overworked, understaffed situation, without adequate physician support. During the evening, the OB department was exceptionally busy, with five deliveries in as many hours. At 12:30 a.m., after more than three and one-half hours of what was likely hard labor, the physician tried to manually turn the infant and was unsuccessful. This is a major obstetric intervention in terms of safety and outcome, and yet there was no documentation as to how it was attempted and what the plan was going to be if it was unsuccessful. It is likely, though not documented, that the infant already was in distress, yet it was another three and a half hours before the physician intervened again.

At this point the patient was well past the two-hour threshold for the second stage of labor. The patient also had a confirmed posterior presentation that was obviously extending hard labor and impeding delivery, which would in a short time compromise the health and safety of the mother and the infant. Yet nothing was done to expedite what was the most likely outcome: a C-section.

The attending OB physician did not respond to his partner's request for help, and the on-duty physician seems to have been overwhelmed by the excessive volume of deliveries in a short period of time. Preparing for and carrying out a C-section with only one physician available in-house and so many expectant mothers nearing delivery would have been impossible without additional backup.

There is no mention of the coverage agreement that the physicians had with the hospital, or if physicians from other practices would have been available for such emergency situations. In some smaller and/or rural hospitals, surgeons are called in for C-sections if there is insufficient or untrained obstetrical staff to manage the situation. Whatever the agreement was that was in place, it was either insufficient or unenforced, and it clearly failed.

In addition, there were no preparations for a possible anoxic infant, which also violates the usual standard of care. Hospitals generally have policies requiring the neonatal staff to be readily available when a C-section is contemplated, as emergency surgical deliveries are far more risky in terms of infant viability. In this case, no neonatologists were available at the hospital for resuscitation, and the neonatal nurse practitioner did not arrive until seven minutes after delivery.

Response time for OB and neonatology should be a matter of enforced policy and consistent with safe practices. In this case, this failure was obviously shared between both services and the hospital's medical executive committee oversight. A root cause analysis of other traumatic births with neurological injury should have been conducted in conjunction with this incident to establish whether a pattern existed and to determine whether the physician agreements were in fact appropriate to the volume and presentation of births delivered at the hospital.

When the baby was delivered at 5:06 a.m., its initial Apgar scores were 0, 0, and 0. The Apgar score is a number that scores a newborn baby's heart rate, respiratory effort, muscle tone, skin color, and response to a catheter in the nostril. Each variable is scored at 0, 1, or 2 points, with a cumulative 10 indicating a perfectly healthy infant. Scores of less than 3 at one minute post-delivery demand immediate resuscitation, which was delayed in this case until the neonatal nurse practitioner arrived seven minutes later. A fetal heart rate was not found until 24 minutes after birth.

The delivery room nurse should have attempted resuscitation without delay, as the effects of anoxia are near immediate. After 15 minutes without a heartbeat, there would certainly be ethical issues to consider if resuscitation were to continue. While state laws differ on this issue, at that point the infant is technically dead, and if resuscitated will be severely damaged beyond a reasonable quality of life. Certainly the parents should have some decision-making capabilities, but that is not addressed.

And finally, it is worth noting that the physicians and the hospital essentially split the $20 million settlement, with the hospital paying slightly less than $10 million. The hospital might have been lucky to pay only that amount, as more medical malpractice attorneys these days are seeking to hold hospitals and healthcare facilities liable for the acts of all providers who provide services within their facility, even independent contractor physicians. In this case, the doctors apparently were independent contractors, but the fact that they were not employees of the hospital is not always obvious to patients. As such, risk managers should be not only intimately involved in the review of all contracts with independent contractors, but should also take steps to inform patients that their contracted physicians are not their "agents."

Agency, through which an entity will be deemed to be vicariously liable for the acts of an individual, is a concept that plays a significant role in the legal aspects of claims. Even if the hospital's bylaws or some other documentation clearly indicates that the physician is not an employee, a jury still can find the physician to be an agent, thereby exposing the facility to liability. Risk managers should take steps to reduce the chances of a finding of agency, such as requiring physicians to wear coats identifying their employers, providing patients with documentation explaining that the hospital does not employ the doctor, ensuring that the hospital does not assign or control the physician's work, and ensuring that physician and facility charges on patient bills are sent to the patient separately. Risk managers should become familiar with the tests applied in their states to recognize and assess the level of risk exposure in a contract for the provision of services.

In sum, this is an incredibly sad case, as it appears that negligence or, at a bare minimum, an indifference to the enormity of the situation as it unfolded was responsible. The $20 million settlement might not be sufficient to compensate the family, as the birth injuries rendered the child a lifetime of full custodial dependency. Had the Labor and Delivery unit been properly staffed, including neonatal coverage, had the nurse been less negligent in her responsibilities, and had the parents been afforded end-of-life decisions, the outcome would have been far different.


Superior Court of Washington, King County, Case No. Not Available