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 patient who was 40 weeks pregnant presented to a tribal hospital with low amniotic fluid. During delivery, the newborn suffered brain damage and other severe injuries. The family filed a lawsuit against the federal government, alleging that the hospital failed to perform proper tests and negligently administered a labor-inducing drug. Due to complications, an emergency cesarean section was performed, and the infant suffered injuries that resulted in developmental delays and other permanent injuries.

Before trial, the government settled with the newborn’s family for $7.5 million. The structure of the settlement called for an immediate payment of $3.75 million, with the remainder of the payment to be used to purchase an annuity to provide the child with monthly payments.

Background: In November 2015, a patient who was 40 weeks pregnant was admitted to a tribal hospital with low amniotic fluid. Physicians decided to induce labor. At the time of labor induction, fetal monitoring showed regular functions, normal behavioral responses, and no danger of hypoxia or ischemia. Physicians believed the fetus was neurologically intact. Labor induction lasted more than 60 hours, which is an extraordinary length of time and unusual circumstance. Fetal monitoring revealed a progressive increase in the fetus’ heart rate. Ultimately, it reached tachycardia.

Following the 60-hour induction, physicians decided to perform a cesarean section. The newborn was not breathing when he was delivered, and his oxygen levels were in the low 50% range; physicians resuscitated him. In addition, the infant was hemorrhaging and had sustained a head injury, likely a result of the delivery. The infant suffered from permanent brain damage and seizures.

The newborn’s parents filed a medical malpractice lawsuit against the U.S. Department of Health and Human Services because of the hospital’s status on tribal land. The plaintiffs alleged the newborn’s injuries could have been prevented had the care providers adhered to the appropriate standard of care. Specifically, the plaintiffs claimed the physician’s assessment of the heart rate and weight of the fetus was negligent, and that their decision to induce labor through the administration of labor-inducing drugs constituted malpractice.

The parties entered into a settlement agreement whereby the federal government agreed to pay the newborn’s family $3.75 million up front, plus another $3.75 million to purchase an annuity providing monthly payments of $4,500. The settlement will enable the family to pay for the child’s past and future medical costs, which will be significant due to the child’s permanent injuries.

What this means to you: This case raises a few lessons for physicians and care providers. Among the main issues in the case were whether the physicians failed to preserve and test either cord blood gases or the placenta, whether the physicians breached the applicable standard of care regarding the use of labor-inducing drugs and failing to monitor the fetus prior to delivery, and whether the physicians failed to ensure employees were aware of and complied with the hospital’s policies and procedures.

Specifically, the family alleged the hospital did not properly estimate the weight of the fetus, even though the ultrasound estimate was more than the average weight. The family also asserted that the hospital failed in assessing the safety of vaginal delivery, which constituted malpractice. Finally, the family claimed the hospital did not recognize the deteriorating fetal heart rate pattern, which showed decelerations and a rising baseline. The family stated that if the hospital and its staff adhered to the appropriate standard of care, the infant’s injuries could have been prevented.

Through careful monitoring, the physicians would have noted that delivery via cesarean section was viable — and, in fact, the most appropriate option. This is reinforced because despite the administration of labor-inducing drugs, delivery had not occurred after 60 hours. This timing should have concerned the physicians and care providers, and they should have re-evaluated their initial course of treatment. Absent any evidence indicating otherwise, the abnormal 60-hour labor period could easily have injured the fetus. Whether the physicians acted negligently while monitoring the fetus’ heart rate would likely have been a significant material issue in this case. However, the family presented strong evidence that the care providers were negligent based on the totality of the circumstances and obvious disregard of cause for concern.

The hospital’s failure to preserve and test cord blood also presented a problem. Such testing may have revealed the presence of specific conditions in the fetus that may have enabled physicians to adopt a different course of action. In absence of such testing, the family’s allegation that that the injuries were a direct result of the botched delivery was persuasive, particularly because the newborn required resuscitation, and his oxygen levels were low at birth.

Yet another failure to adhere to the applicable standards of practice surrounds the administration of the labor-inducing drugs. These were administered in excessive doses, and were higher than those recommended by the manufacturer. Another point in support of the family’s claims was that the drug was administered without a work order, which constituted a breach of hospital policy. A reasonable physician in the same or similar circumstances would not overadminister such drugs, and likely would not exceed manufacturer recommendations.

This case serves as an example of the consequences of disconnects, not only between the physician and the patient, but also between the hospital and its staff and the accepted policies, procedures, and standards of care now well-recognized in obstetrical settings across the globe. The deviations from standards are so many and so egregious that it is almost unbelievable that this happened without any attempts by staff to intervene to protect the unborn infant. Signs of fetal distress on a monitor strip are easily recognizable to anyone trained to read a fetal monitor. Hospitals and care providers must ensure that proper procedures are in place so physicians and staff both have the same interpretation of the strip. Most importantly, staff should feel emboldened by the organization to intervene and direct the physician to rethink the plan of care when staff recognize a problem the physician may not be aware of — or, though aware, has chosen an inappropriate course of treatment, or simply not to treat. The lack of training and adherence to, or absence of, multidepartmental standards and protocols is astounding, and unfortunately quite lethal. Physicians and care providers need to be cognizant of the standards within their facilities. In addition, a keen self-awareness of their own knowledge, abilities, and expertise is essential if they want the best outcomes for their patients and for themselves.

Finally, another lesson from this case is for physicians and care providers to honestly and critically evaluate litigation brought against them. This may seem like a daunting task, as recognizing one’s fault is never easy. Nevertheless, when faced with the prospect of an adverse verdict, it is critical for a defendant in a malpractice action to evaluate the risks of proceeding to trial, particularly when the patient’s injuries are undisputed as in this case, and the benefits of settling prior to trial. Settlement allows the parties to control the outcome and eliminate potential “runaway” verdicts. In this case, the defendant settled the matter for $7.5 million when the matter caused significant injuries to a newborn that will require ongoing medical care. A judge or jury evaluating the same facts and malpractice could easily award figures higher than that amount. Physicians and care providers may be well-served to acknowledge their own shortcomings, and prevent excessive adverse verdicts by engaging in settlement efforts with an injured plaintiff.


Decided on Nov. 19, 2019, in the United States District Court for the Eastern District of Oklahoma, Case Number 6:17-cv-00329.