Legal Review & Commentary

Baby’s delay leads to $19 million settlement

By Jan Gorrie, Esq., and Blake Delaney, summer associate
Buchanan, Ingersoll Professional Corp., Tampa, FL

News: One summer morning, a pregnant woman was admitted to a hospital with irregular contractions. The hospital nursing staff initiated a fetal heart monitor; and by midafternoon, the fetus’s heart rate was decelerating. However, when an obstetrician called to check on the patient, the nursing staff told him everything was fine.

Consequently, the doctor ordered the cessation of the fetal heart monitor. When a doctor came to the hospital the next morning to see the patient, he realized the danger the baby was in and ordered an emergency cesarean. The woman’s son was born with cerebral palsy, mental retardation, and spastic quadriplegia. A suit alleging negligence against both the hospital and the doctor was filed and the parties reached an agreement whereby the plaintiff would receive $19 million.

Background: On the morning of July 20, 1983, a pregnant woman with irregular contractions was admitted to her local hospital in Evergreen Park, IL, a Chicago suburb. When she arrived, the nursing staff initiated a fetal heart monitor, but a doctor did not see the woman, as her treating obstetrician was on vacation. By midafternoon, the monitor showed that the fetus’s heart rate was dropping and oxygen was cut off to the fetus. Nevertheless, when the doctor covering for the treating obstetrician phoned the hospital to check on the woman around 8:10 p.m., the nursing staff told the doctor that everything was normal. The nursing staff relayed that the woman was not in labor and that the fetal heart tones were reassuring or normal. Consequently, the obstetrician ordered that the fetal monitor be discontinued.

The next morning, the on-call doctor came to the hospital to see how the woman was doing. This was the first time that the woman had been seen by any physician since her admission.

Alarmed by the woman’s condition, the doctor ordered an emergency cesarean. The baby boy was delivered that morning, suffering from cerebral palsy, mental retardation, and spastic quadriplegia.

For the next 17 years, the mother was the sole caregiver for her son. She also operated a day care center in her home for the developmentally disabled. In 2000, the mother began to worry about who would, in her absence, take care of her son, who then weighed 53 lbs., was confined to a wheelchair, and could not speak.

Consequently, the mother decided to find out who was to blame for her son’s disability and, on behalf of her son, filed suit for negligence against the hospital and the on-call doctor who delivered the baby. Even though recovery of past medical expenses was barred by the statute of limitations, the son sought damages for pain and suffering, disfigurement, decreased life expectancy, disability, and future medical expenses.

At trial, the plaintiff alleged that the doctor acted unreasonably both by not seeing the patient on the day she was admitted to the hospital and by not carrying out a timely delivery via cesarean section on the second day. The plaintiff also contended that the hospital, through its nursing staff, failed to notify the covering doctor of the fetal heart rate decelerations, and was negligent in following the doctor’s order to discontinue the fetal hear monitor without a doctor personally examining the patient.

In his defense, the doctor asserted that he acted within the standard of care by relying upon the nursing staff to review the external fetal heart monitor tracing.

The hospital, in its defense, disputed that it acted unreasonably, that the injury was caused by the actions of the nursing staff, and that the plaintiff’s damages were as significant as the plaintiff contended. First, the hospital argued that the nursing staff appropriately treated the woman, relayed all relevant information to the substitute obstetrician, and acted reasonably by following the doctor’s orders. It maintained that the fetal monitor strips showed variable decelerations, indicative of umbilical cord compression, and not late decelerations, which would indicate utero-placental insufficiency, as alleged by the plaintiff. Second, the hospital claimed the brain injury occurred between 24 and 72 hours prior to the delivery, which would indicate injury occurred before the mother was admitted to the hospital. Third, the hospital contested the plaintiff’s life expectancy, arguing no more than five to 10 additional years of survival.

While the jury was deliberating, the parties reached a settlement whereby the plaintiff would receive $18 million from the hospital and $1 million from the obstetrician. The jury then returned a defense verdict for the obstetrician, but awarded the plaintiff a verdict in the amount of $20.2 million against the hospital. Nevertheless, the prior settlement agreement stood. The money damages awarded were ordered to be held in a court-supervised fund that can only be used for expenses related to the son. The mother has said the money will allow her to hire help to care for her son while she continues running the day care center in her home.

What this means to you: This case, representing yet another huge verdict from Cook County, is indicative of the importance in establishing and adhering to appropriate standards of practice. "Both the obstetrician and the nursing staff seemed to have been unaware of any protocols that specified the respective responsibilities of all professional staff," says Ellen L. Barton, JD, CPCU, a risk management consultant based in Phoenix, MD.

Even though the doctor recognized the seriousness of the situation when he arrived at the hospital, his actions up to that point fell below the expected standard of care. "The fact that a pregnant woman in labor was not seen by an obstetrician until almost 24 hours after her admission is simply outrageous," says Barton.

Because the on-call doctor was not the woman’s regular treating obstetrician, he had no firsthand knowledge of the patient. "Therefore, it was incumbent on him to examine the patient within a reasonable period of time after her admission to the hospital," she adds.

Medical staff protocol should specify standards for such admissions, especially in cases where physicians are covering for one another. Further, the doctor acted inappropriately by ordering the cessation of the fetal heart monitor without personally examining the patient. "In so doing, the doctor cut off his only source of patient information," says Barton.

Once the monitor was disconnected, neither the nursing staff nor the doctor could readily and effectively assess the patient’s condition. "Again, medical staff rules and regulations should set forth standards of practice in such situations," she adds.

Unfortunately, the doctor was not the only source of negligence. The hospital, through its nursing staff, also failed to meet generally accepted standards of practice. The core issue appears to be whether the nurses reading the fetal heart monitoring strips were competent to do so. "There should be at least an annual verification that all nursing staff exhibit the ability to accurately read and interpret fetal heart monitor tracings," says Barton.

If the nurses had correctly read the monitor, there is a good chance the situation could have been avoided. Furthermore, regardless of the readings, the nurses should not have discontinued the monitor in this case. "It was inappropriate to cease the fetal heart monitor without the patient being examined by a physician, especially on a verbal order," adds Barton.

The lack of communication between the nursing staff and the obstetrician is also evident. "The hospital clearly has a corporate responsibility to provide appropriate communication systems so that there are fail-safe mechanisms to assure that accurate data are conveyed to appropriate professional personnel in a timely manner," she says.

There does not appear to have been any documentation of the communication between the nursing staff and the physician. "Both the medical record and the strip should reflect the fact that the on-call obstetrician called, the time he called, and specifically what he was told and what he ordered," adds Barton. Such documentation would inform the medical staff of the patient’s status and contribute significantly to ensuring the patient’s safety and well-being.

This case is instructive for risk managers in other aspects as well. Even though the mother in this case gave birth in 1983, she did not file suit until 2000. "It was only when the mother considered the fact that she herself might not be able to care for her son that she wanted to find out who was responsible for her son’s condition," says Barton.

Risk managers need to be aware of the importance of maintaining records so that they can be prepared in the event of delayed litigation. Also, she says, "the fact that the jury was willing to exonerate the on-call obstetrician probably reflects a perception that those who are there — in this case, the nursing staff — have full responsibility."

Risk managers should recognize that a jury’s perception of liability often may involve considerations beyond principles of law.

Finally, this case foreshadows the likely increase in dueling experts in future litigation. In this case, the plaintiff had six expert witnesses from all over the country, while the defendant used three such experts. The increase in expert testimony can be attributed to the publication of new medical studies.

These studies, including their validity and applicability, need to be addressed by expert witnesses for both plaintiffs and defendants. For example, a recent study by the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics found that an insufficient supply of oxygen during delivery (one of the indications of medical malpractice) occurs in less than 25% of all cerebral palsy cases, and medical malpractice may actually occur in three to five percent of all cases. Future litigants will have to address, by means of expert testimony, the validity of this study and others like it.

In conclusion, the hospital needs to ensure the implementation of and adherence to medical staff rules and regulations to prevent similar situations in the future. Such standards of practice should address the protocol for physicians who cover for one another and the proper way to read and interpret medical devices, such as the fetal heart monitor. The hospital then needs to create and maintain appropriate communication procedures.

"Hospitals need to establish a solid framework to facilitate effective care and treatment for the safety of patients," concludes Barton.

Reference

Damen Townsend v. Little Company of Mary Hospital, Dr. Joseph Zacharia, Cook County (IL) Circuit Court, Case No. 00L-3555.