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 

California Hospital Medical Center

Los Angeles

Elena N Sandell, JD

UCLA School of Law, 2018

News: An appellate court recently confirmed the liability of an obstetrician who, through the use of a vacuum extractor during the delivery of an infant, caused severe brain injuries that resulted in permanent neurocognitive deficits in the newborn.

Following a trial, a jury found that the physician was liable for damages in the amount of $1.75 million. The obstetrician appealed multiple court orders, asking the appellate court for judgment as a matter of law dismissing the complaint, or to set aside the verdict as contrary to the weight of the evidence and grant a new trial. The appellate court denied all requests and found that the plaintiff had presented sufficient evidence to satisfy the legal burden of proof.

Background: A pregnant woman checked in to a hospital to give birth to her son. During delivery, the obstetrician made multiple attempts at using a vacuum extractor to deliver the infant. The physician also used the vacuum extractor to rotate the child from an occiput posterior position to an occiput anterior position. Upon delivery, the newborn had suffered several severe injuries to his head.

Among other complications, it was noted that the infant was bleeding between his scalp and his skull. Abnormalities also were discovered during a neurological examination. The infant’s head injuries resulted in significant brain damage and permanent neurocognitive deficits.

The mother later brought a medical malpractice suit on behalf of her son against the obstetrician. The plaintiff alleged that the obstetrician had deviated from the applicable standard of care by making multiple attempts to deliver the infant with the vacuum extractor and by using the vacuum extractor to rotate the infant. The plaintiff claimed that this use of the vacuum extractor had been the direct cause of the injuries suffered by the newborn and observed upon delivery, which caused the permanent neurocognitive deficits.

The jury reached a verdict in favor of the plaintiff and awarded $250,000 for past pain and suffering and $1.5 million for future pain and suffering. The defendant obstetrician brought a post-trial motion seeking relief. The trial court denied the obstetrician’s motion to set aside the verdict for judgment as a matter of law or for a new trial, and entered judgment in favor of the plaintiff. The obstetrician appealed on two separate grounds; however, the appellate court determined that there was sufficient evidence to support the jury’s verdict and affirmed that the damages awarded to the plaintiff in the amount of $1.75 million were reasonable.

What this means to you: This case focused on the use, or misuse, of a medical device: the vacuum extractor. Physicians and medical care providers must be cognizant of the proper applications and usage procedures for medical devices prior to use. When a reasonable physician in the same or similar circumstances would not use a device or would not use a device in a specific manner, a physician’s deviation from those standards may constitute medical malpractice.

In this case, the device at issue was a vacuum extractor, used for two different purposes. The American College of Obstetricians and Gynecologists guidelines and most hospital policies have recommended and/or mandated no more than three “pop-offs,” which is the detachment of the vacuum from the infant’s head during delivery. With each reapplication of the extractor, the physician risks injuries such as bruising and abrasions. The suction level can be adjusted to assure a secure attachment and reduce the number of pop-offs. Suction levels that are too strong can cause significant injuries such as hemorrhage or skull fracture.

Physicians should have documented evidence of proficiency with operative deliveries before attempting the procedure unassisted. Vacuum-assisted deliveries, whether vaginal or cesarean, are high-risk and require informed consent by the mother after a detailed explanation from the physician of the risks and benefits of this type of operative delivery.

Additionally, vacuum devices are not recommended for rotation of the fetus during labor. If the presentation is posterior vertex and the physician feels that the posterior presentation of the infant’s head will not pass through the mother’s pelvic arch, a manual rotation can be attempted. With macrosomia — larger fetuses with head diameters that exceed that of the mother’s pelvic arch — deliveries often are planned as cesarean sections or become emergent trips to the operating room for a cesarean delivery.

This case involved an appeal by the party unsuccessful at the trial level. In this case, the physician was found liable and appealed on two separate grounds, including in an attempt to set aside the jury verdict or to grant a new trial. The physician raised arguments on both issues of liability and issues of damages, attempting to undermine the jury’s significant award of damages. However, the physician’s appeal was unsuccessful: The appellate court confirmed that a jury’s verdict is not to be set aside unless no reasonable interpretation of the evidence could have yielded the verdict.

Appellate courts usually are very deferential to trial court and jury findings, largely because appellate courts are presented with only a written record of the proceedings. Since appellate courts do not hear live testimony from witnesses, including experts, they generally do not re-evaluate the credibility of such witnesses, as that is proper for the trial judge or jury.

For this case, the appellate court warned that the discretionary power to set aside a jury verdict and grant a new trial must be exercised with great caution because the successful party should benefit from the outcome of the successful litigation process. The appellate court addressed the medical malpractice issues present in this case and the elements necessary to prove liability in such a medical malpractice case.

In particular, the appellate court noted that the plaintiff must introduce evidence proving that the physician deviated from the accepted standards of practice in the community and that such deviation proximally caused the plaintiff’s injuries. During the trial, the plaintiff successfully introduced expert testimony that corroborated the allegations that the defendant’s use of the vacuum extractor deviated from the accepted standards of practice.

The physician’s use of the vacuum extractor was improper for two reasons. First, the physician made too many attempts to deliver the child using the extractor. Second, the physician used the extractor to rotate the infant, which, according to the plaintiff’s expert testimony, diverged from the standards of care. Thus, the plaintiff satisfied the burden of proof and successfully established that the obstetrician breached the standard of care, which is the first step in a medical malpractice case.

Another necessary part of a medical malpractice suit requires the plaintiff to establish that the defendant’s conduct was the actual and proximate cause of the plaintiff’s injuries. Here, the infant was noted to have several head injuries upon delivery. It was undisputed that the head injuries, including the bleeding between the infant’s skull and scalp, had been caused by the use of the vacuum extractor during delivery. In addition, as is common practice, the infant immediately underwent a neurological examination that revealed abnormalities.

Depending on the facts and circumstances of the case, it may not be worthwhile for a physician or medical care provider to challenge issues of causation when the substantial weight of the evidence demonstrates a causal connection between the improper actions and the injury. Making such an attempt when there is a clear connection serves only to undermine other aspects of the defense that provide a stronger basis for defeating the plaintiff’s claims.

An important lesson to be learned from this case is that while appealing is inevitably an option, unsuccessful physicians and medical care providers at the trial level must consider the additional time and expense that accompanies such an appeal. Trial judges and juries make mistakes, but depending upon the nature of the mistake — whether it is a misapplication of the law by a judge, or a disregard of factual evidence by a jury — an appeal can be an uphill battle for a party unsuccessful at trial. Medical care providers must consult with counsel in order to evaluate whether an appeal is worth the burden, or whether it may be more practical to forgo an appeal process.


Decided on Oct. 3, 2018, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department; Case Number 601321/09.