Legal Review & Commentary

OB/GYN case results in $30M verdict

News: A pregnant woman sought prenatal care from a hospital-based OB/GYN practice. During the pregnancy, the woman had several ultrasounds that revealed some density in the fetal heart. However, no special plans were made for the child. At a regular office visit, her physician informed her that she might be a good candidate for vaginal birth after cesarean. The procedure was scheduled for three days later. After starting oxytocin, the woman experienced decreased variability. Ultimately, an emergency cesarean was required, and the baby was found outside the uterine cavity. A jury returned a verdict against the hospital and in favor of the plaintiff in the amount of $30,953,181.

Background: A third-time pregnant woman obtained prenatal care from a local OB/GYN. The woman's first two pregnancies and births had been uneventful, with the first as a vaginal delivery and the second as a cesarean.

The woman, based on the recommendation of her physician, had several ultrasounds. The ultrasounds revealed density in the fetal heart; but since the woman's caregivers determined that there was no interference in the fetal heart's function, no additional action was taken.

As the woman came closer to her due date, her physician determined that she may be a good candidate for VBAC, or vaginal birth after cesarean, based on the baby's position as head-down. The woman went into labor and presented at the hospital, where oxytocin was started to speed up the delivery process. The woman experienced decreased variability and was placed on oxygen and increased oxytocin. During labor, the fetal heart monitor showed a decrease in fetal heart rate, and the woman was taken to the operating room for an emergency cesarean. During labor, the woman's uterus ruptured, and the placenta was found completely detached with the baby outside the uterine cavity. Attorneys in the case alleged that the child probably went 18 to 20 minutes without oxygen.

The baby was born with APGAR scores of 3/4/4 at 1, 5, and 10 minutes, respectively. He remained at the hospital for 17 days until he was transferred to a specialty children's hospital and soon thereafter diagnosed with hypoxic ischemic encephalopathy, birth asphyxia respiratory depression and gastrointestinal hemorrhage. He was released from the hospital nine days later, but suffered from permanent and irreversible brain damage, cerebral palsy, and seizures, leaving him unable to speak or walk, and requiring 24-hour care.

On behalf of the child, the woman and her husband brought suit against the hospital, the OB/GYN physician, and the physician's practice group. The plaintiffs alleged that the hospital fell below the standard of care by failing to have in place proper policies and procedures with regard to physician attendance and monitoring of at-risk patients, such as those that are considering VBAC and oxytocin. The complaint also alleged that the hospital nurses failed to tell the attending physician when the woman's contraction pattern became inappropriate, and that they continued to administer oxytocin despite the fragile nature of VBAC. The hospital presented the affirmative defenses of contributory negligence, assumption of risk, and failure to mitigate damages. The suit further alleged that the physician had failed to adequately manage the woman's labor.

A jury found in favor of the physician and his practice group but returned a verdict against the hospital in the amount of $30,953,181, the largest ever returned for a medical malpractice suit in Ohio.

What this means to you: Ninety percent of women who have undergone cesarean deliveries are candidates for vaginal birth after cesarean or VBAC, as it is frequently referred to. The greatest concern for women who have had a previous cesarean is the risk of a uterine rupture during a vaginal birth. According to the American College of Obstetricians and Gynecologists (ACOG), if the woman had a previous cesarean with a low transverse incision, the risk of uterine rupture in a vaginal delivery is 0.2% to 1.5%, which is approximately 1 in 500. Some studies have documented increased rates of uterine rupture in women who undergo labor induction or augmentation."

VBAC is done on a trial labor basis and only after careful discussion between the obstetrician and the patient. Essential is a low uterine transverse scar from a previous cesarean, no more than two previous cesareans, but at least one vaginal delivery, and no indication during the pregnancy that a cesarean would be necessary due to anatomical abnormalities of either the mother or the fetus. A VBAC should never be considered if the pregnancy poses significant risk beyond the fact that the mother had a cesarean previously. Another major consideration is that a physician is available to monitor the labor, and the hospital has the staff ready to do an emergency cesarean.

It would appear that this patient met the criteria, and one would assume that the obstetrician did speak with the patient and her husband and they were in agreement with the VBAC. The woman apparently experienced early signs of labor and went to the hospital. It is not known how long she had been in labor, but it appears that once she arrived, she was started on IV oxytocin to hasten her contractions.

Mothers who receive oxytocin during labor frequently report increased pain with contractions and frequently use pain medication to handle the increased pain, which can slow the infant's heart rate. Oxytocin requires an IV for administration and continuous monitoring to detect complications and/or determine the progress toward delivery. The drug can cause prolonged contractions and increases the possibility of a uterine rupture. There is an increased likelihood of a fetal malpresentation or malposition, and use of the drug is associated with an increased need for cesarean surgery for dystocia and fetal distress. Oxytocin is known to increase the likelihood of depressed fetal heart rate patterns and the chances of fetal distress due to decreased oxygen availability resulting in the need for urgent cesarean. For these reasons, the use of oxytocin is contraindicated for women desiring VBAC or, if it is used at all, it must be closely monitored and the obstetrician must be immediately available should any evidence of fetal distress or maternal complications, such as uterine rupture, occur, as these are life-threatening emergencies.

Another factor was that the infant had shown a possible issue with heart muscle density, which could have caused problems with oxygenation during labor if the fetus was stressed during prolonged contractions. The mother showed variability in the duration and strength of her contractions, and the oxytocin was increased. The big question is: Where was the obstetrician during the woman's labor and who ordered the increased oxytocin?

The infant was born with classic anoxic ischemic encephalopathy, which is brain damage due to oxygen starvation. The allegations brought in the suit certainly seem to fit the tragedy that ensued. This mother experienced the ultimate tragedy of a poorly managed labor resulting in a defective infant. In this case, the obstetrician was extremely lucky, as in many of these cases the jury finds against the physician as well. The amount of this judgment is excessively large, but OB cases are known for huge awards. While this case appears to be directly related to negligence, there are many similar cases where everything was done correctly, and the outcome was just as disastrous.


• Court of Common Pleas of Ohio, Montgomery County, Case No. 2006-CV-05798.