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

News: When a pregnant patient arrived at a hospital to give birth, she presented normally and without any exceptional or exigent circumstances. Fetal monitor readings initially indicated that the fetus was healthy. However, over the next several hours, the readings dramatically changed and fell to nearly undetectable levels. The physician failed to quickly identify and treat the fetus’s oxygen deprivation, and the fetus suffered severe brain injury.

The child and his parents brought suit years later against the hospital, a physician, and a nurse, alleging that the failure to treat the oxygen deprivation caused the brain injury. A jury found all three liable and awarded the plaintiffs $50 million in damages.

Background: In March 2009, a 35-year-old pregnant patient checked into a local hospital when she was scheduled to have labor induced, accompanied by her husband. Vital signs on admission appeared normal and unexceptional. While the delivery was approximately five days later than expected, the patient otherwise experienced a healthy pregnancy. The patient went into labor naturally earlier in the day and did not require induced labor. Fetal monitor readings were initially reassuring and indicated that the fetus was healthy with a good heart rate.

Three hours into labor, the fetus’s heart rate dropped dramatically; however, it eventually returned to normal levels. This heart rate deceleration and subsequent acceleration occurred multiple times while the patient was in labor. After one such drop and rise, the physician ordered that the patient’s labor be augmented with Pitocin, which strengthens contractions but increases the stress on the fetus. The patient was in labor for 12 hours when the fetal heart rate eventually fell to essentially undetectable levels. The physician finally ordered a routine, rather than emergency, cesarean section.

The infant was delivered with blue skin and an extremely low heart rate, unable to breathe on his own. Physicians performed chest compressions in an attempt to get oxygen into the baby’s body, but by this time, the injury had already occurred. The baby suffered a severe and permanent brain injury known as hypoxic ischemic encephalopathy (HIE) from the oxygen deprivation. The child developed cerebral palsy as a result of the brain injury and suffers from severe physical and mental debilitations, including struggling with basic tasks, an extremely limited vocabulary (knowing only approximately 30 words at nine years old), decreased motor skills, and difficulty walking. He will require extensive medical care and support for the entirety of his life.

The child and his parents brought suit when the child was nine years old, naming the hospital, a physician, and a nurse as defendants. The plaintiffs argued that the physician and nurses failed to recognize the signs of fetal distress, and that the administration of Pitocin constituted medical malpractice. The defendants denied liability, although they did make a settlement offer of $10 million during trial. The family rejected that settlement offer, as they determined it was insufficient to cover the child’s extensive medical care and needs.

After a nearly two-week trial, the jury reached a verdict and awarded the plaintiffs $50 million against all three defendants. The jury broke down this award as $12 million for future medical costs, $3 million for future lost earnings, $1.3 million for future pain and suffering, $1.5 million for increased risk of harm, $2 million for past emotional distress, $6.5 million for future emotional distress, $4 million for past loss of a normal life, and $20 million for future loss of a normal life. The defendants unsuccessfully attempted to challenge the verdict on the basis that they were prevented from offering evidence about the child’s autism, which defendants argued contributed to the child’s limited communication and mobility.

What this means to you: This case reveals the need for prompt diagnoses and treatment, particularly given emergent circumstances such as a patient’s oxygen deprivation. While the physician in this case eventually realized that the fetus’s heart rate indicated distress, that realization ultimately came too late, and the physician’s subsequent actions failed to conform with the applicable standard of care. Oxygen deprivation of any patient poses significant risks, and those risks may result in dramatically increased damages when the patient is a fetus or infant. In this case, the physician correctly ordered a cesarean section once the fetus was in distress, but the physician did not order it to be performed on an emergency basis. The family argued, and the jury agreed, that this constituted care below the applicable standard, as a reasonable physician given the same or similar circumstances would have required that the cesarean section be performed as soon as possible based on the fetus’s declining monitor readings.

Physicians and care providers often are tasked with juggling many different patients, but it is critical to assess and prioritize the care and treatment of patients who require immediate attention in order to prevent catastrophic injury. While this frequently occurs in emergency room settings, physicians and care providers in all practices and settings must be cognizant of the applicable conditions and injuries that may present. When time is of the essence in treating a patient, failure in this regard may constitute medical malpractice.

In this case, the family’s expert opined that the child’s injury was fully preventable if the cesarean section had been performed in a timely manner, and if the mother was never given Pitocin. Thus, the physician took the proper course of action by ordering the cesarean section, but it was the delay that resulted in the significant injuries, and a reasonable physician in the same or similar circumstances would have identified that the fetal distress warranted immediate action, rather than a nonrush procedure.

The labor and delivery department of a hospital functions under the same standards as an emergency department. Patients arrive in all stages of labor, and each patient — both mother and fetus — require immediate attention. Fetal monitoring, which primarily keeps track of the fetal heart rate in response to the mother’ uterine contractions, is a science within itself. All healthcare providers, including nurses, midwives, obstetricians, and family practice physicians who are credentialed for deliveries, require very specific training in the interpretation of fetal monitor tracings.

The fetal heart rate is usually given a category level during the course of delivery, which provides a method to triage the labor progression so that care providers can be where the most urgent needs are, especially in a busy department. Heart rate decelerations are not always abnormal, especially during a contraction, and recover to baseline quickly. A slow recovery or an acceleration to a rate higher than baseline can indicate fetal distress from many sources such as pressure on the umbilical cord causing a decrease or interruption of blood flow from the placenta to the fetus.

During later stages of labor, the fetal heart rate can change from a reassuring category 1 to a devastating category 3 very quickly. Physicians and nurses should both be keeping a close eye on the tracings and confer frequently to ensure that there is agreement between them that the tracings are within an acceptable range. If the fetal heart rate is not reassuring to the team, interventions to bring the heart rate back within range must occur immediately.

If the woman’s labor is being augmented with Pitocin, it is usually turned off for a period of time to see if the heart rate improves. It is not started in the presence of fetal distress. Cesarean sections are not ordered in the late stages of labor in the presence of fetal distress except on an emergent basis. There is a common standard of care for “crash” cesarean sections of 30 minutes from decision to incision. Both nurses and physicians have a shared responsibility to make this happen. There is no hierarchy in labor and delivery rooms; nurses must intervene if a physician does not act promptly. Minutes matter, and with each second that care is delayed, the damage potential rises exponentially. The key to a successful outcome is training and teamwork.

After an unfavorable jury verdict, physicians and healthcare providers always have options to appeal the decision or to challenge unsupported verdicts. However, as seen in this case, such challenges often are uphill battles, with the presumption that the decision at the trial court was correct or supported by the weight of the evidence. Here, the defendants raised such a post-verdict challenge, arguing that the child’s autism was a possible reason for his limited communication and mobility challenges and that the autism was unrelated to the birth injury. If successful, the challenges could have undermined the jury verdict or, at a minimum, reduced the amount of the damages awarded. The court summarily rejected the defendants’ arguments and upheld the $50 million verdict.

Physicians and healthcare providers should consult with legal counsel to determine the best course of action following a favorable or unfavorable verdict, as either situation presents new opportunities and challenges, including new items to negotiate with the opposing party such as a waiver of appellate rights in exchange for a waiver of the losing party paying the winning party’s court costs.


Decided on Feb. 7, 2019, in the Circuit Court of Cook County, Illinois; Case Number 2014-L-013348.