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: During a pregnant patient’s hospitalization, nurses failed to notify a doctor of fetal distress signs, leading to permanent injuries. The baby was born with the umbilical cord wrapped around his neck after an emergency cesarean section. This caused the baby’s oxygen level to drop for an extended time, resulting in permanent brain damage. A trial court found the care providers were negligent and awarded the plaintiff $10.3 million.

A three-judge appellate panel upheld the decision, finding sufficient evidence the nurses’ failure to notify the physician caused the baby’s cerebral palsy because the nurses waited more than 30 minutes to inform the physician that the fetal heart rate had been dropping.

Background: In October 2014, a patient was hospitalized due to complications that led to the premature birth of her son. Throughout the hospitalization, the baby’s heart rate slowed multiple times. The physician ordered the nurses to continuously monitor the baby’s heart rate. For the first few days of hospitalization, no abnormalities with the heart rate were registered. However, on the third day, the baby’s heart rate dropped below baseline on three separate occasions. On the first instance, the nurses noted an abnormally low heart rate for two minutes. Shortly thereafter, the heart rate dropped again for approximately seven minutes. Later, the baby’s heart rate declined for the third time, reaching levels the nurses deemed “dangerous.” After this last drop, the baby’s heart rate never reached normal levels and continued to decrease.

Approximately 30 minutes after the first drop was detected, nurses could not detect a heartbeat. Despite these emergency circumstances, the nurses waited another six minutes before calling the physician. The physician arrived at the hospital approximately 20 minutes later and performed an emergency cesarean section to deliver the baby. When the baby was delivered, the physician noted the umbilical cord had been wrapped around the baby’s neck, depriving the brain of blood and oxygen.

The baby was airlifted to a nearby hospital, where he spent a month in the critical care unit and was subsequently diagnosed with cerebral palsy. The extent of the brain injuries caused by the lack of oxygen and blood to his brain is so severe that the child will require permanent, 24-hour care for the remainder of his life.

The patient filed a medical malpractice lawsuit against the hospital, arguing the nurses breached their duty of care by failing to timely notify the physician when the baby’s heart rate dropped rather than waiting until the heart rate was undetectable. The jury found in favor of the patient and awarded $10.3 million: $9 million in future healthcare expenses while the child was a minor, $1.2 million in future healthcare expenses for the child as an adult, and $62,000 in past expenses.

The defendant hospital filed an appeal on multiple grounds, arguing there was insufficient evidence to support causation, the court erred in calculating the child’s life expectancy, the trial court erroneously excluded expert testimony, and the final judgment disregarded the jury’s findings and was not supported by the weight of the evidence. The appellate court rejected these arguments and affirmed the trial court’s decisions.

What this means to you: This case revealed multiple important issues on appeal relevant to medical malpractice cases generally. These issues can be divided into three general groups: issues about causation, issues about periodic payment, and issues about the exclusion of witnesses.

First, the defendant care provider attempted to challenge the court’s finding of a breach of duty by arguing the trial court failed to consider existing factors that may have contributed or caused the patient’s injuries. Specifically, the defendant care provider noted that due to the mother’s age and high blood sugar levels, the pregnancy was considered “at risk.” Additionally, the mother suffered from a urinary tract infection that remained untreated during her pregnancy. The defendant care provider also noted the patient missed several routine checkups throughout the pregnancy, which may have revealed potential problems sufficiently in advance, and the patient’s membranes had ruptured prematurely, leading to her hospitalization. Tests conducted after delivery also revealed the patient’s placenta had torn away from the uterine wall, the umbilical cord was inflamed and twisted (which may have resulted in less oxygen delivered to the fetus), and the patient suffered from chronic infection resulting in amniotic fluid infection.

According to the defendant care provider, these conditions may have caused or contributed to the child’s injuries. However, the appellate court found these arguments unmeritorious because the expert witnesses stated the child’s injuries could not have been caused by anything other than acute asphyxia from the umbilical cord wrapping tightly around the child’s neck. This determination confirms the importance of expert witnesses, as courts do not have the necessary medical knowledge to determine such factual issues. Expert testimony is critical in evaluating issues about causation. Arguing against the weight of expert testimony is impossible, absent other, more compelling expert testimony.

In fact, the appellate court stated “even if the evidence did raise other possible causes of the injury, the experts negated them as possible causes.” Because medical malpractice cases require a certain level of specialized knowledge due to their nature, it is clear how evidence provided by laboratory results and other testing must be interpreted by a competent witness, in most cases a physician, to draw an accurate conclusion as to its meaning. In this matter, the defendant hospital attempted to challenge the experts’ conclusion by presenting evidence that may or may not show possible alternative causes of the injury.

However, without an expert’s opinion supporting the defendant’s position, the evidence did not carry any weight in the court’s decision. This case involved nurses’ duty to provide the standard of care to patients. Despite the multiple complications that occurred during the mother’s pregnancy and the possible reasons for the anoxia suffered by the fetus, timely intervention by the physician is key to mitigating the damage anoxia can cause. Fetal monitoring in a hospital during labor is dependent on the interpretation of the monitoring strips. Obstetrical nurses are trained to interpret fetal monitoring strips. The American College of Obstetricians and Gynecologists provides specific guidelines that identify which abnormalities noted on the monitoring strips must be immediately brought to the attention of the physician. Decelerations or slowing of the fetal heart are not all abnormal. As contractions occur, uterine pressure on the umbilical cord can occur, but should immediately recover once the uterus begins to relax. When a deceleration occurs between contractions or lasts for an extended period, a physician must be notified immediately.

This standard applied to this case demonstrates the nurses’ hesitance to make the call was a failure to provide the standard of care and a breach of the nurses’ duty. Reasons for this are varied, but there are two common circumstances that stand out. First is simply the lack of knowledge seen when untrained nurses have to float to areas of the hospital with which they are not familiar. The second occurs when a nurse has experienced hesitance, resistance, or even bullying or disrespect from the physician the nurse needs to call. It is the responsibility of hospital administrators to ensure neither scenario occurs. Seconds count when a fetus is deprived of oxygen, and no reasonable nurse delays informing the physician. Anything less is negligence on the part of the nurse.

In the second major issue, the defendant care provider argued the trial court erred in denying the award be paid in periodic payments and in its interpretation of the periodic payment law. To this point, the defendant argued the court failed to charge the jury with the question of the patient’s life expectancy, which was a controlling issue of fact. However, the appellate court confirmed that trial courts have significant discretion and should give such instructions “as shall be proper to enable the jury to render a verdict.” In this case, the trial court did not abuse its discretion because the question of life expectancy was not cited by the periodic payment statute, and the defendants did not provide any evidence of the question being addressed by other courts in applying the statute.

Lastly, the defendant care provider argued the trial court abused its discretion in excluding witness testimony about the insurance payments the plaintiff could receive under the Affordable Care Act (ACA). However, the appellate court ruled this exclusion was proper because under an established legal principle — the collateral source rule — a negligent party may not mention or obtain benefit from the payments the injured party will receive from external sources. Here, although the patient would receive payments under the ACA, those payments are irrelevant for the purpose of calculating the damages owed by the defendant. Admitting such evidence would have been a clear violation of this legal principle.


  • Decided on July 30, 2020, in the Texas Court of Appeals for the Thirteenth District, Case Number 13-18-00362-CV.