By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Strategies
Former Director of Risk Management Services
California Hospital Medical Center
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
News: In 2012, a 24-year-old woman went to a hospital to give birth. A procedure was performed, which revealed a stool from the baby in the amniotic fluid. The physician ordered a high dose of a natural contraction-producing hormone to increase contractions. Throughout the birthing process, this hormone was continuously administered in a high dose without monitoring.
The baby’s vital signs revealed potential acidosis, and the baby eventually was delivered with severe brain damage. He required intubation and suffered a seizure shortly thereafter. As a result, the family brought a medical malpractice suit against the physician, the hospital, and the hospital’s parent company, alleging that the failure to monitor the hormone and the labor caused the child’s birth defects. The case proceeded to a lengthy trial that culminated in a jury award of $14.5 million for the family.
Background: On July 19, 2012, a woman presented to a hospital for the delivery of her son. At 6:30 p.m., the mother was examined by an OB/GYN, who performed an artificial rupture of membranes (amniotomy), which revealed thick meconium (an infant’s earliest stool, and here an indication of fetal stress). The physician informed the pediatrician of the thick meconium and ordered a high dose of Pitocin, a natural hormone, to increase the strength and frequency of contractions.
At 7:10 p.m., the OB/GYN determined that the patient was fully dilated and instructed her to start pushing in the second stage of labor, with the Pitocin still running. Then, at 8:00 p.m., the physician attempted to turn the face-up fetus to expedite delivery. By this point, the fetal heart rate revealed minimal variability, an indication of fetal acidosis due to a restriction of the baby’s oxygen flow.
By 8:20 p.m., the baby’s head was crowning, and the physician later claimed this meant the baby could have been delivered by vacuum or forceps. At 8:25 p.m., the fetal heart rate slowed dramatically to 60 beats per minute (bradycardia). To try to give the fetus time to recover, the physician instructed the mother to lay on her side and had her breathe through a contraction without pushing. Throughout this process, the Pitocin continued running. The physician then performed an episiotomy, and the baby was born unresponsive at 8:31 p.m. with his vital signs severely depressed. The child’s Apgar scores were 2, 2, and 3, taken the first, fifth, and 10th minute after birth, respectively. Scores of 7-10 are considered normal. He was intubated and suffered seizures and severe brain damage.
The child later was diagnosed with spastic tetraplegic cerebral palsy and required treatment from various medical specialists, including an orthopedist, a neurologist, and a gastroenterologist (as he likely would need a feeding tube for nutrition). He was treated with physical, occupational, and speech therapies. He will require lifelong treatment, including medications to treat spasticity and seizure disorder, radiographic imaging, physical therapy, and constant monitoring by a pediatrician or primary care physician, neurologist, gastroenterologist, urologist, orthopedic surgeon, and neuro-ophthalmologist.
The baby’s parents sued the OB/GYN and the hospital, alleging that their negligence breached the standard of care and constituted medical malpractice. The plaintiffs claimed that the use of Pitocin was improper and that the physician and nursing staff failed to properly monitor the labor.
At trial, eight experts with specialties in OB/GYN, neonatology, physical medicine, and life care planning testified for the plaintiff. The obstetrics experts opined that the use of Pitocin was improper and that before it was used, the fetal heart rate was indicative of a healthy baby. Furthermore, the physician and nursing staff failed to turn off the hormone when the baby experienced fetal distress from the frequency of contractions and lack of time to recover, subjecting the baby to 40 minutes of severe hypoxia and acidosis, and ultimately causing permanent brain damage.
One of the defense’s five experts testified that the hospital’s nursing policy prohibited starting the mother on Pitocin because her contractions were too frequent, and that its administration should have ceased when the fetal heart rate was concerning.
When the physician testified, he stated that under his custom and practice, he would have turned off the Pitocin between 7:55 and 8:00 p.m. The physician also stated he believed he gave the nurse such an order, but that was not reflected in the medical record, and the nurse denied receiving the order.
The jury returned a verdict in favor of the plaintiffs for just under $14.5 million after a nine-day trial. The jury found the physician 60% liable and the hospital 40% liable.
What this means to you: This case shows the double-edged sword of internal operating procedures. The procedures can be helpful in insulating hospitals from liability, but they also provide a peg on which plaintiff’s counsel can hang their hats when it comes to a physician’s deviation from the standard of care. Of course, limiting liability wherever possible certainly is advisable, but hospitals also should take into consideration the extent to which their internal procedures expose medical professionals to malpractice claims. Hospitals may consider prioritizing restatements of law in drafting their procedures. For example, an internal procedure that requires physicians and nurses to obtain informed consent is simply a restatement of the law, and it helps to insulate the hospital from liability by providing something the defense counsel can point to at trial. Such an internal procedure would carry less weight for the plaintiff in a case against a physician than would a more specific procedure. For example, if in this case the hospital issued an internal procedure that specifically required physicians to cease hormonal treatments when fetal vitals drop below a certain point, the plaintiff in this case would have had more powerful evidence to work with.
That said, the other side of the double-edged sword is the notion that too general a set of internal procedures may result in physicians operating outside the standard of care due to their ignorance of the standard. This means that hospitals should ensure that physicians understand very well what the standard of care may be in any given situation. This tension between preventing liability for hospitals and preventing injuries to the extent permitted by human error should be considered by those responsible for drafting internal procedures, and hospitals and medical professionals should work closely with counsel in drafting internal procedures.
Note also that in this case, the nursing policy on the use of Pitocin would have been approved by the medical staff of the obstetrics department, and the physician and nurse should have followed it. Had the physician ordered the Pitocin despite what is stated in the policy, the nurse should question the physician as to the reason. The nurse has the responsibility to activate the chain of command if the explanation is not reasonable to the nurse. Both the nurse and physician have been trained to monitor and interpret fetal monitoring strips that should run continuously throughout the entire labor. Interpretation of the strips, including the variability of the fetal heart rate during and after contractions, is critical even during uneventful labor, and discussions of the results should occur frequently and between all healthcare professionals in the delivery room. Communication among all involved is critical.
Finally, ensuring that the medical records are completely accurate provides credibility at trial. Medical professionals should strive to create clear and consistent records, to the extent possible, that they can fall back on in a legal setting. One challenge is preserving those records over the long period of time required to fully litigate a case. Most hospitals hold on to perinatal records for 10 years due to damages that show up as a child grows. There are many companies that offer medical record storage services and can be used to authenticate records and bolster their credibility. Hospitals and medical professionals should consider working with one or more such companies if they are not doing so already.
Decided on Jan. 27, 2017, in United States District Court, W.D. Pennsylvania, Case No. 14CV00149.