By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Morgan Lynch, 2018 JD Candidate

Pepperdine University School of Law

Malibu, CA

News: A pregnant woman presented to a Miami hospital on an early December morning for the delivery of her son. Seven hours after her admission, the patient was started on Pitocin and she began pushing several hours thereafter. Several times during the delivery, the patient requested her physician perform a cesarean section, but the physician refused. After treating other patients, delivering another baby, and taking an eight-minute call from his stockbroker, the physician began a vacuum-assisted delivery.

The child suffered irreversible brain damage, and the child’s parents initiated a medical malpractice claim against the physician, hospital, and other parties. After a bench trial, the couple, individually and on behalf of the minor child, was awarded more than $33 million.

Background: On Dec. 2, 2013, a pregnant woman was admitted to a Miami medical center at 2:40 a.m. for the delivery of her son. The patient signed a consent form for a cesarean section and any other surgical procedure required during delivery. The medical staff administered Pitocin from 9:46 a.m. until 1:30 p.m.

At approximately 12:27 p.m., fetal monitoring strips began to indicate intermittent decelerations. The patient’s treating physician was present when she began pushing at 1:49 p.m. and Pitocin was restarted. Fetal monitoring showed a non-reassuring heart rate. Throughout the morning and the afternoon, the patient requested that a cesarean section be performed by the physician, who allegedly repeatedly refused the patient’s requests.

The child was born at 3:21 p.m. with extensive hypoxic ischemic encephalopathy causing irreversible brain damage due to decreased blood flow to his brain and a large subgaleal hematoma caused by the prolonged use of a vacuum delivery system.

The patient claimed that after the baby’s brain damage was apparent, the physician wrote in her chart that the patient refused the performance of a cesarean section. However, a labor and delivery nurse that was present during the delivery corroborated the patient’s allegations that the physician refused a cesarean section and responded to her requests with direction to “keep pushing.” The patient also claimed that the physician blamed her for not pushing hard enough. Further, the patient claimed that while she was pushing, the physician left the room multiple times to assist other patients, delivered another baby, made an eight-minute call to his stockbroker, and was out of the room when the child eventually was delivered.

The child’s parents, individually and on behalf of the minor child, filed a complaint for damages. The plaintiffs claimed that due to the physician’s negligence, the child will require 24-hour nursing for the rest of his life with projected economic damages in excess of $25 million. At the age of 18 months, the child required feeding through a peg-tube, could not stand, crawl, or support himself, and underwent a tracheotomy that required suctioning every three to five minutes.

The medical expert for the plaintiffs testified that restarting the Pitocin and multiple attempts with the vacuum was dangerous and a gross deviation from acceptable standards. The trial judge granted summary judgment on the limited factual issues that the vaginal birth of the child led to his injuries, and that the patient was a Medicaid recipient at the time of the birth. The court left the causation issue for trial.

The action proceeded to a bench trial. On April 17, 2017, the judge issued a ruling that the physician breached the standard of care by not offering a cesarean section to the plaintiff mother and that this breach caused the child’s injuries. The court awarded damages in the amount of $33.8 million, comprising $29.4 million in damages for the child, $3.3 million for the mother, and $1.1 million for the father.

Following the delivery, the patient discovered that the physician was sued for two additional negligent deliveries in 2013 — the same year of this tragic birth. One case involving the rushed use of a vacuum device causing disfigurement settled for $92,000. The second case, which is still pending, involves an alleged delay in an emergency cesarean section that resulted in brain injuries to the child.

What this means to you: The most salient issue presented by this case was the lack of internal oversight. To prevent cases like this, hospitals should invest in an internal audit team designed to assess and reduce internal risks. This team would be responsible for creating and executing a plan for exposing risks within the hospital, suggesting prioritization of those issues, and developing possible solutions. To prevent potential biases, this team should be comprised of neutral individuals who are not in regular contact with hospital employees. At a minimum, the following areas should be evaluated in the audit: general patient safety and quality of care, pharmacy procedures and adherence to those procedures, legal and regulatory compliance, human resources, patient admissions and registrations, cash management procedures, and patient management.

This case also illustrates the need to screen physicians and establish an interview process capable of vetting candidates on criteria such as criminal history, history of litigation involvement, and evidence of professional education and experience. Hospital recruiters should be charged with evaluating the risk associated with each new physician and medical professional, and should evaluate the risk relative to the benefit of their job performance. Criteria should be established to assess risk in an objective manner, and that risk must be considered throughout the hiring process.

When a physician applies for a position, the hospital should require the physician to list all previous medical experiences, including education, places of employment, areas of special expertise, and all litigation issues both pending and completed. Employers generally, and hospitals specifically, are charged with validating all information presented on the application. Information available publicly and online typically is simple to search for and review, and may reveal past litigation and the outcome of adjudicated litigation, against physicians or staff. In any event, relying solely on an individual’s application materials lends itself to unwanted surprises. Also, if an applicant is accepted and credentialing is completed, the new staff physician should undergo proctoring by a senior physician for a period to assure competence.

Physicians and medical professionals must engage in continuing medical education. Medical professionals must refresh their education on best practices, as practices and standards are an evolving measurement rather than static determination.

Training both obstetricians and nursing staff in a standardized interpretation of fetal monitoring strips will eliminate much disagreement and controversy between both parties when rapid decisions are needed. Nurses, well-trained and confident, feel empowered to approach a physician who may miss an important symptom or sign due to multiple patient responsibilities. If the physician continues to provide care inconsistent with what seems appropriate to nursing, the availability of additional expertise can be accessed through activation of the formally established chain of command.

Finally, this case demonstrates the necessity of discipline. Swift and appropriate consequences should be enacted to anyone who knowingly records a false entry in the medical record. To eliminate any appearance of impropriety, all hospital personnel must be subject to disciplinary action for failure to comply with ethical standards, legal requirements, and hospital policies or procedures. The physician here ultimately was fired, but his negligent and lazy approach should have been discovered much earlier and he should have been reprimanded or terminated to avoid such unfortunate injuries to a patient. Disciplinary actions inherently vary based on the severity of the offense, but such actions that may be appropriate include oral warnings, written warnings, temporary suspension, mandatory education, increased supervision, financial penalties, demotion, and termination.

REFERENCE

Decided on April 17, 2017, in the United States District Court, S.D. Florida; case No. 1:15-cv-23502.