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 newborn suffered permanent brain damage, cerebral palsy, severe developmental delays, and other significant injuries because of a hypoxic-ischemic brain injury during a natural birth. During the delivery, physicians failed to adequately inform the mother about the risks of vaginal delivery, failed to monitor the infant’s heart rate, and failed to act timely when signs of hypoxia were observed.

The newborn’s mother filed a malpractice suit alleging the physicians’ and staff’s negligence caused the child’s injuries, as the child was otherwise healthy throughout the pregnancy. Following a trial, the judge awarded the patient $15 million.

Background: Less than a year before the incident, a woman gave birth to her first child at the hospital. During labor, medical personnel detected the fetus was experiencing bradycardia, which was resolved by repositioning the mother. However, physicians observed the patient’s cervical dilation was not progressing; thus, physicians performed an emergency cesarean section.

Four months after giving birth to her first child, the patient returned to the hospital because she was pregnant with her second child. The second pregnancy was monitored properly, and all standard prenatal tests were performed, including ultrasounds, fetal heart rate monitoring, and bloodwork. The fetus appeared to be healthy and developing at an ordinary rate. Because the second pregnancy occurred so shortly after her first, it was classified as a “closely spaced pregnancy.”

During the second pregnancy, the patient began considering delivery through natural birth, which is known in her case as vaginal birth after cesarean (VBAC), instead of undergoing another cesarean section. When successful, VBAC is associated with shorter recovery times, less blood loss, and fewer infections. However, if unsuccessful, VBAC can result in major maternal and fetal complications, including hysterectomy, uterine rupture, fetal injury, and death of infant and/or mother.

According to the patient, physicians did not accurately describe to her the specific risks of VBAC associated with her situation. In fact, while in general the odds of a successful VBAC are approximately 60-80%, the patient’s closely spaced pregnancies, short physical stature, pelvic measurements, and the complications during the delivery of her first child should have indicated to physicians that she was not a good candidate for VBAC. Also, physicians should have explained in greater detail the specific risks associated with her case.

Nevertheless, physicians did briefly discuss the general complications of VBAC. The patient expressed her intention to attempt VBAC and forgo a second cesarean section. After about 39.5 weeks, the patient went into labor and presented to the hospital two hours after her contractions started.

The patient alleged the hospital staff were negligent in allowing her to walk the halls of the hospital without continuous monitoring of the fetal heart rate. After arriving to the hospital and undergoing an initial check, the patient was encouraged to ambulate, and the fetal heart rate was left unmonitored for approximately one hour. The hospital’s standard procedure required an obstetrician be notified as soon as the patient presented to the hospital in labor. However, the obstetrician was not notified until well after the initial complications had begun. In fact, approximately two hours after the patient entered the hospital, the fetal heart rate reached a state of bradycardia and further signs arose indicating poor fetal oxygenation. Staff failed to act promptly, and it was not until the fetal heart rate reached a level associated with fetal injury that a cesarean section was performed. At birth, the newborn appeared blue, could not breathe, and required resuscitation.

Following a trial, the judge found in favor of the plaintiff and awarded $15 million: $6.4 million for future medical expenses based on a life expectancy of 57 to 60 years, $2.2 million for future lost earnings, $1.5 million for past and future pain and suffering, and $5 million for past and future loss of enjoyment of life.

What this means to you: This case presents a multitude of breaches of the standard of care that cumulatively gave rise to the liability and significant verdict in this matter. In the complaint, the patient alleged the physicians breached their duty of care on multiple factual bases, including by failing to disclose all the risks associated with VBAC, violating the hospital’s standard operating procedure for failing to notify an obstetrician when the patient presented in labor, failing to monitor the fetal heart rate continuously, allowing the patient to ambulate, and failing to identify early signs of fetal hypoxia and appropriately treating the condition.

Acquiring a patient’s informed written consent is critical. The failure to do so produces significant risk for physicians and care providers. According to hospital records in this case, the patient signed the consent to VBAC forms on three separate occasions throughout the course of her pregnancy. These standard forms contained language indicating that, on average, 60-80% of women experience successful VBAC. However, only one of the three consent copies was signed by a physician who testified that he did not believe the patient’s history placed her at a higher risk of suffering complications. The physician further explained that because he believed another physician had more thoroughly discussed the risks, he personally did not provide any detail besides the general risks indicated in the consent form. The plaintiff’s expert witnesses opined the plaintiff’s previous experience during delivery, as well as her physical characteristics, clearly indicated she was not an appropriate candidate for VBAC. Furthermore, the short time between her two pregnancies exacerbated the risk of complications from VBAC compared to an individual who had a longer period to recover from the cesarean section.

Because the consent form was only signed by one physician, the court determined the overview of the risks provided was insufficient given the nature of the specific case. Furthermore, the physician relied too heavily on the presumption that “someone else” would have discussed specific risks with the patient, which did not occur. The fact that there were unsigned informed consent forms in the medical record indicates it is possible the patient was asked to sign the forms as part of a hospital’s standard office procedure, rather than after an informative discussion with the physician.

When there are multiple physicians providing care to the same patient, a clear delineation of labor is important. Ultimately, it is in each physician’s own best interests to ensure he or she abides by the applicable standards and provides sufficient information to the patient to acquire informed consent, even if someone else also may be providing the same or similar information. When in doubt, it is better to err on the side of caution on this point, as two physicians providing full information to the patient is far better than the patient left wondering about the potential risks and alternatives. Thus, care providers must be self-sufficient in this regard, and protect both patients and their own interests by providing adequate information to patients.

The hospital argued that standard procedures required staff to notify an obstetrician as soon as the patient entered labor, but this patient presented to the hospital in “early labor,” and it was not yet necessary to notify an obstetrician. However, the obstetrician was not notified for more than two hours after the patient entered the hospital, which was an inappropriately long wait.

The events that took place following the patient’s arrival at the hospital is an example of a perfect storm. Every safety standard developed by the American College of Obstetricians and Gynecologists for the safe management of VBAC was disregarded. Each physician who saw the patient during her prenatal care was obligated to know how their colleagues were advising her about the high risk to her and her unborn child should she choose to deliver vaginally. In fact, it would be acceptable for a physician in such a circumstance to decline involvement, as physicians can remove themselves from situations that present an unnecessary risk to both patient and physician.

All VBAC deliveries are considered high risk. These deliveries require close monitoring and continuous communication between the physician and nursing staff until the physician arrives. Allowing a patient to wander the hospital while in labor is dangerous, and falls below the applicable standard of care. Placing fetal monitors on the patient but not interpreting or reporting readings that are indicative of fetal distress is even worse. Obstetrical units must be high-performing, intensive care departments where all providers are team players who train together, are comfortable with each other, and work side by side as colleagues without fear of hierarchical reprisals or pulling rank.

According to the judgment, these delays clearly constituted material deviations from the standard of care. The judge explained that if the possibility of a cesarean section been discussed with a physician when the initial signs of fetal distress began to appear, it was likely the injury would have been avoided. Based on the evidence provided by the expert witnesses, the judge concluded the infant’s injuries were a direct consequence of oxygen deprivation during labor. Since the injury was caused to a newborn child, who would require significant future medical care and would suffer lifelong debilitation, the size of the verdict was unsurprising, as it directly correlates to the substantial injury.


Decided on Jan. 28, 2020, in the United States District Court for the Middle District of Tennessee, Case Number 3:15-cv-01073.