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

Elena N. Sandell, JD

UCLA School of Law, 2018

News: A pregnant teenage patient chose to proceed with a vaginal delivery, but the patient’s child suffered permanent injuries. The patient was admitted to the hospital experiencing pre-eclampsia, and the patient alleged that her care providers gave inaccurate and incorrect predictions about the risks of giving birth. Because of the providers’ advice, the patient gave birth vaginally rather than by cesarean section. The patient’s child was born without a pulse, required resuscitation, and suffers from severe cerebral palsy.

The patient filed suit on behalf of her child against the hospital, alleging that the incorrect diagnosis and advice constituted medical malpractice. The hospital denied any wrongdoing. A jury awarded $229 million, which was subsequently reduced to $205 million due to a state statutory maximum.

Background: In 2014, a 15-year-old patient was pregnant with her first child. At 25 weeks’ gestation, the patient was admitted to the labor and delivery unit of a local hospital in pre-eclamptic condition. Following her admission, the hospital began monitoring the fetal heart rate and the mother’s high-risk condition. Around 7:30 p.m. on the day of admission, the care providers at the local hospital decided to transfer the patient via helicopter to a higher acuity medical center based on the patient’s severe pre-eclamptic condition. At this hospital, the patient’s condition was monitored throughout the night. An ultrasound revealed an estimated fetal weight of 664 grams.

The next morning, the NICU team discussed the plan of care with the patient and erroneously stated that the perceived lack of fetal growth indicated that potential outcomes for the baby were very poor, specifically indicating a high probability of neurological and physical defects and no chance of the baby’s brain being normal. A neonatologist also was consulted and reported that the baby would be born sick with high likelihood of death or neurodevelopmental disability. As fetal monitoring continued, physicians presented increasingly dire scenarios for the baby’s survival. Physicians informed the patient that her child’s development was significantly less than originally expected, based on a new approximated weight of 400 grams instead of 660 grams as initially estimated. At 11:30 p.m., fetal monitoring was discontinued.

Two days after the patient’s transfer, care providers decided to induce labor, although the patient allegedly understood that the chances of the baby’s survival delivered at this stage and through vaginal delivery were poor. The patient indicated she did not wish to undergo a cesarean section, and fetal monitoring was discontinued. The patient received five doses of misoprostol for induction of labor. The patient progressed to complete dilation; however, when the obstetrics and NICU teams were called to the room, the infant’s head was crowning and partially out. The infant’s weight at birth was 670 grams. She was immediately transferred to the NICU, intubated, and resuscitated since she was not breathing and did not present a heart rate.

Because of the traumatic birth, the child suffers from severe developmental delays, cerebral palsy, cannot walk, and will require constant medical care. The patient sued the hospital on behalf of her child, claiming lack of informed consent and negligence resulting in her child suffering such injuries. The hospital denied wrongdoing and liability.

After a trial, a jury awarded $229 million, consisting of $3.62 million for past medical expenses, $1.02 million for lost earnings, $25 million for noneconomic damages, and $200 million for future medical expenses and damages. The judge subsequently reduced the verdict to $205 million based on a state statutory maximum for medical malpractice actions.

What this means to you: This case reveals how a patient’s circumstances can dramatically affect the size of a verdict, regardless of the underlying type of malpractice. Failures to diagnose or incorrect diagnoses are common types of malpractice when a reasonable physician in the same or similar circumstance would have accurately diagnosed the patient. But not all misdiagnoses result in the same amount of injury, and this is directly correlated to the amount of a resulting verdict in the case of liability. In this case, the injured party is perhaps the most vulnerable — a newborn child — and the injuries were so substantial as to require lifetime care. Accordingly, these circumstances supported a jury award of more than $200 million, with the majority for future expenses. While physicians and care providers should exercise caution and provide diligent and thorough care for all patients, additional caution may be exercised for patients who are more likely to suffer life-threatening or substantial injuries.

The substantial award in this case indicates that the jury aimed to ensure that the young mother and her child would have the necessary means to cover the significant and inevitable medical expenses incurred throughout the child’s life. As indicated in the complaint, if the physicians had adequately informed the patient about the risks and alternatives for delivery, the child could have been born without complication. However, the child suffered significant injuries because the physician provided incorrect information about the weight of the fetus and providing incomplete information about her delivery options and the related risks. Unfortunately, the physicians in this case were incorrect about the fetal weight: at 660 grams, pursuant to the initial estimate, the fetus was a normal weight for the gestational age of 25 weeks.

Under these circumstances, the mother’s pre-eclampsia was more medically urgent and a more significant problem, yet pre-eclampsia can be safely and effectively managed with physician supervision. The information, or lack thereof, presented by the physicians led the patient to discontinue fetal monitoring and proceed with induced labor when, in fact, the pregnancy could have continued to term once the mother’s pre-eclampsia was brought under control. The patient claimed that it was unclear that inducing labor at such an early gestational age posed tremendous risks to her child. She further alleged that had the implications of her choices been fully explained, she would have chosen to continue monitoring the fetus and considered other options.

Another important lesson from this case is the necessity and importance of expert witnesses. In this case, the plaintiff retained an expert witness to offer opinions on the applicable standards of care. The plaintiff’s expert witness comprehensively outlined multiple deviations from the standards of care committed by the defendants and opined that had the standard of care been followed, the child would have been born without the injuries. In other words, the expert opined that the injuries suffered by the infant were directly and proximately caused by the negligence of the defendants.

According to the expert’s analysis, the physicians acted negligently from the moment of the plaintiff’s transfer to the hospital. First, based on ultrasounds and estimated fetal growth, the patient’s fetus was consistent with normal fetal development; thus, the physicians should have advised the patient that her fetus was viable. When a second estimate of fetal weight was found to differ from the original weight, all care providers involved should have turned their attention to determining which weight was correct. This would require multiple evaluations by multiple practitioners until a consistent result was obtained and determined to be correct by all involved. This applies to any test result or data measurement involved in determining critical steps in patient care.

In this case, the care providers incorrectly assumed that the new weight was correct and disregarded the original reading. By informing the patient that her fetus was underdeveloped and would not have a good chance of survival, the physicians deviated from the standard of care. Based on a subsequent and more comprehensive ultrasound, the physicians estimated the fetus’ weight to be 250 grams less than the actual weight. This mistake led to an erroneous and increasingly negative prognosis, which convinced the patient to choose not to undergo a cesarean section. Furthermore, fetal monitoring should not have been discontinued under these inconsistent and dangerous circumstances, and the care providers should have advised the patient that a cesarean section would reduce the risks to the child. Finally, the physicians either erroneously performed or misread ultrasounds and inaccurately concluded that the fetus exhibited signs of severe intrauterine growth restrictions.

According to the plaintiff’s expert, absent negligence, the patient would have been advised to undergo delivery through a cesarean section, which was the best option to maximize the well-being of both the patient and her child. Unfortunately, as a direct result of the physicians’ actions, the patient believed that her fetus had a near-zero chance of survival; the patient held out hope based on her request for resuscitation. If she had been presented accurate information and options, she would have elected to undergo a cesarean section. The physicians in this case did not enable the patient to make that decision, and their multiple deficiencies constituted actions below the applicable standard of care, resulting in their liability and the substantial verdict.


Decided on July 1, 2019, in the Circuit Court for Baltimore City, Case Number 24C18002909.