News: On Dec. 26, 2013, a pregnant woman in her mid-20s was admitted to a hospital to give birth to her daughter. During labor, her physician used forceps to attempt to forcibly remove the baby. After three unsuccessful attempts to deliver the baby via forceps, a cesarean section was performed. Because of the force used by the physician during the failed attempts, the baby suffered from hypoxic ischemic encephalopathy caused by skull trauma and was born limp, lifeless, and unresponsive. She was subsequently taken off life support on Jan. 1, 2014.

The patient sued the hospital and physician, alleging their negligence caused the baby’s wrongful death. The jury found the physician 95% liable for the death and ordered him to pay $9.7 million. The remainder of the $10.2 million damage award was ordered to be paid by the hospital. Statutory caps on damages will reduce the physician’s liability to $1.8 million.

Background: On Dec. 27, 2013, at 7:45 a.m., the pregnant patient was put on oxytocin. The medication was discontinued twice after it was determined the baby was not tolerating it. Just after 8:00 p.m., the oxytocin was resumed and increased five times until 12:19 a.m.

By 9:00 p.m., the fetal heart monitor indicated that the baby was distressed. The physician allegedly discounted the distressed monitoring strips, against the protests of the head delivery nurse. The head delivery nurse informed her supervisor of the situation and they confronted the physician, telling him that the distressed monitoring strips were a serious concern requiring the cessation of oxytocin. The physician allegedly disagreed, and instead ordered a different nurse to increase the oxytocin.

At 11:30 p.m., the fetal monitoring strip indicated that the baby was severely distressed, and the physician determined the baby should be delivered. An expedited delivery was performed at midnight, and in the next 17 minutes the physician unsuccessfully used forceps three times to attempt to forcibly extract the baby. On the second attempt, cracking or crushing noises were allegedly heard. After the three attempts to deliver the baby failed, a cesarean section was ordered, and the baby was born limp and lifeless shortly thereafter. She was taken off life support on Jan. 1, 2014. The baby’s father committed suicide in 2015. The patient sued the physician and the hospital, alleging they were negligent in the delivery of her daughter, causing her wrongful death.

At trial, the mother’s OB/GYN expert testified that the nurse should have proceeded up the chain of command until the physician ceased the administration of oxytocin. According to the expert, the physician was so reckless in using the forceps that he caused a linear left parietal fracture and depressed right parietal fracture on the baby’s skull (one of the fractures depressed into the baby’s brain) as well as a cervical vertebra dislocation/subluxation, which damaged the vertebral arteries. The expert cited the autopsy, which stated that the baby’s hypoxic ischemic encephalopathy was caused by skull trauma, and cited literature that prohibits physicians from using their leg muscles when applying the forceps, and that gentle application was critical. The grandmother of the decedent testified that in one of his forceps attempts, the physician put his leg on the bed to gain leverage for pulling.

A video was played at trial of the baby’s deceased father, in which he described the painful experience of taking his daughter off life support. He also stated he spoke with the physician after the baby’s death and was told that the physician “was very sorry for what happened and everything was going to be OK.”

The defense denied any negligence in the delivery of the baby. The physician’s expert attributed the traumatic skull injuries to the mother’s expulsive efforts over an extensive 29-hour labor, and thus the expert found no negligence despite the rarity of such injuries.

After the three-week trial, the jury returned a $10.2 million verdict in favor of the plaintiff. One of the 10 jurors in favor of the plaintiff was a pregnant mother. That juror stated that the jury attempted to keep emotions out of their decision and focus solely on the accountability of the physician and hospital.

The defense moved for a judgment notwithstanding the verdict, and will appeal the decision of the trial court.

What this means to you: This case demonstrates the need for hospitals to provide an environment for nurses to safely report actions by physicians that fall outside the standard of care. While it may have been the case that this hospital had the internal framework to permit such reporting, it is clear by the nurses’ behavior that reporting was not encouraged to the extent necessary to prevent this catastrophe. At trial, the nurses involved in the delivery testified that they asked the doctor multiple times to stop using forceps and move to a cesarean section, to no avail.

Prudent physicians, especially obstetricians, learn very quickly, usually during their residency training, to heed the advice, warnings, and recommendations of experienced senior nurses. Obstetrics is the area of medicine that incurs the greatest risk and highest costs in litigated claims. Many excellent obstetricians leave the profession because of the many hours spent defending their actions. Nursing leadership should have contacted either the physician who directs the OB department or the chief of staff who oversees all physicians. Anyone on staff has the ability to intervene when faced with obvious clinical negligence, and to not do so causes a shared liability.

The Mayo Clinic advised medical personnel to “keep in mind that whenever a forceps delivery is recommended, a c-section is typically also an option.” Forceps should be viewed as a last resort and never used multiple times or with physical force. The mother in this case did not want a cesarean section because she feared the scars that accompany the procedure. However, delivery by forceps is a risky procedure; for example, forceps can cause incontinence and internal damage to mothers and skull or facial injuries to babies. Physicians ought to remind patients of these dangers prior to using forceps in lieu of routine procedures, and hospitals should encourage utilizing standard procedures.

It was reported that the physician in this case remains licensed. While the patient is lobbying to have his license revoked, hospitals should avoid employing a physician who strays so far from the ordinary standard of care. This physician’s insistence on continued use of oxytocin and multiple forceps attempts showed poor judgment, and the jury punished the physician for it. Background checks must be used to ensure physicians with poor judgment are not rehired, risking injury to future patients and exposing hospitals to unnecessary risks.

Finally, this case illustrates the value of settling cases that involve clear negligence. There was no doubt the physician acted outside the ordinary standard of care; using forceps with enough force to require using one’s leg is unquestionably outside the standard of care, especially given the circumstances. This mother may very well have wanted her day in court because she was so outraged by the physician’s behavior and decisions, but this case surely generated bad publicity for the hospital. It is a hard argument to make in front of a jury that a doctor is not responsible for the death of a baby in these circumstances. While it is true that the federal and state court rules of evidence typically provide safeguards against the introduction of evidence that could lead a jury to make decisions based on emotion rather than reason, the very nature of this case would make many juries base their decisions on emotion rather than reason. In emotionally charged cases, it may be a wise strategy for medical professionals and hospitals to cut their losses and settle prior to trial.

REFERENCE

  1. Jefferson County District Court, 60th Case No. B0195944.