Mother and child awarded $4 million in birth injury suit
News: A patient, age 27, was in labor and began vaginal delivery of a 10-pound child at a hospital, assisted by an obstetrician-gynecologist.When delivery plateaued at 9 cm dilation, the physician administered oxytocin and performed a forceps-aided delivery. The baby's shoulder was stuck, resulting in three and one-half minutes of no oxygen and blood flow. The baby was delivered limp and had to be resuscitated by a neonatal unit, and the child later was diagnosed with mild cerebral palsy. The mother and child brought suit against the physician, and they claimed that the physician should have performed a cesarean section because of the child's size and strained delivery. The physician argued he met the standard of care.The jury awarded $4 million in damages against the physician.
Background: The patient was in labor and admitted to a hospital in the morning. She was four days past due, and prior to going into labor, an ultrasound and sonogram revealed that the unborn baby's fetal weight was approximately 10 pounds. Her obstetrician-gynecologist, the defendant physician, assured her that this substantial weight was nothing to be alarmed about. After being admitted, she quickly arrived at 9 cm dilation. However, her dilation plateaued, and she remained dilated at 9 cm for several hours.
The physician ordered oxytocin to assist with the delivery, and finally, at midnight, the patient was at 10 cm, which allowed for delivery to continue.
The mother unsuccessfully pushed for more than two hours, as the baby resisted descending. The physician opted to use forceps to aid in delivery. While doing so, the baby's head emerged and immediately retracted, an event known as a turtle sign. This event also is indicative of shoulder dystocia, a condition in which the head successfully delivers but the shoulder is stuck on the mother's pubic bone. The physician attempted to continue with vaginal delivery and administered a number of successful measures to assist delivery, including pushing the patient's knees back to widen the birth canal, applying pressure to the pubic area, and mounting the mother and pushing on her abdomen. Eventually, the baby was delivered, but there was three and one-half minutes prior to delivery in which the umbilical cord was impaired and the child received no oxygen and blood flow. As a result of the deprivation, the child was not breathing and had no heart rate. She was resuscitated by a neonatal unit and later diagnosed with mild cerebral palsy. The mother suffered bladder and bowel incontinence as a result of severe tearing, which extended to her anal sphincter, and the overall trauma of the birth.
The plaintiffs sued the physician and alleged that he should have performed a cesarean section to deliver the baby after the oxytocin was ineffective. According to the plaintiffs' experts, the large size of the baby and the use of forceps increased risk of shoulder dystocia, and the physician's use of forceps here was a further breach of the standard of care. The physician offered several bases for defense: shoulder dystocia is unpredictable and uncommon, cesarean sections are not a required preventative measure, pushing the head back into the pelvis would have been more dangerous than continuing with the vaginal delivery, and any injury was caused by resuscitation efforts after delivery. The jury came back with a unanimous verdict for the plaintiffs, which totaled $4 million, nearly $2 million for the mother individually and more than $2 million for the daughter individually.
What this means to you: The primary issue in this case was whether the physician took appropriate action and met the standard of care when delivering the patient's baby. This determination, made by the jury, is heavily (often exclusively) based on expert testimony. Naturally (or at least unsurprisingly), the experts on each side almost always clash and claim that their side has the correct interpretation. Here, the defendant's experts claimed that a prophylactic cesarean section is not recommended by the American Congress of Obstetricians and Gynecologists, while the plaintiffs' experts testified that the large size and increased risk of shoulder dystocia required a cesarean section.
Experts on each side contradicting each other is almost inevitable during trials, and picking an expert might be a key factor in the outcome of the case. Thus, it is important to work with counsel and select a strong expert team early in the case so that the expert can help shape the discovery and pretrial preparations. There are various ways to select an expert, and going with the most published or most famous expert might not always be the right call. If you are considering an expert who has a great deal of experience testifying, it is important to at least make sure that the expert has a balanced resume and is not simply a show pony for the plaintiffs' bar on one hand or the defense bar on the other hand. Among other reasons, such show pony experts generate a trail of deposition and trial transcripts over time, and plaintiffs' counsel and defense counsel share materials behind the scenes. Eventually they build a war chest of mistakes and inconsistencies that can be used to impeach the expert. The force of such impeachment becomes enhanced if the expert appears to a jury to lack neutrality because he or she testifies exclusively or almost exclusively for one side or the other. It might be better to seek out someone knowledgeable in the field with little or even no prior experience as a testifying expert. As long as the person has a deep understanding of the field and a strong ability to communicate, experienced litigation counsel should be able to shape that person into a persuasive testifying expert.
Although there might be multiple methods for treating a condition, and experts might conflict on which method is preferred, physicians might be well-suited by informing their patients of these options, in the right circumstances. Letting patients know the risks of all possible procedures and allowing them to make an informed decision is extremely important. If the physician makes the decision without consulting the patient and informing them of the risks and sideeffects, there might be liability. This liability is not always the case, however, as sometimes a patient might not be able to make decisions, such as when the patient is incapacitated or unconscious, or delaying treatment risks serious bodily harm. Physicians should nonetheless make it a practice of informing patients of their options whenever possible, and when their options or the circumstances surrounding them change, physicians should go back to the patient with this updated information and inform the patient anew. Allowing patients to make an informed decision might prevent liability on the physician's part.
Also, adapting treatment to a situation as it unfolds is critical. Physicians must be able to change treatments when one proves to be ineffective and decide a new course of action based on the updated circumstances. The physician here deemed vaginal delivery to be a valid option originally, but as the delivery progressed and was difficult, he should have re-evaluated whether to continue. When there are multiple options, consider those reasonable options. Cesarean section was a reasonable, better alternative to instrument-assisted delivery, particularly after the oxytocin was found to be ineffective in this case. Some courses of treatment might not be able to be halted once begun, but for those in which cessation is possible, it might be necessary if the treatment is futile and another alternative is required. Physicians must be aware of changing circumstances that require different procedures or treatment than the original diagnosis speculated, and they must take action accordingly.
The rarity of a condition might have an influence on a physician's liability, but is primarily relevant to the threshold issue of considering what the reasonable physician would have done in the same or similar circumstances. If a condition is sufficiently rare that a reasonable physician would not know how to treat it, then this situation might preclude negligence liability. There is no clear number or standard here for what constitutes sufficient rarity, rather it is a specific factual determination to be made by a jury. A defense expert stated that shoulder dystocia occurred in 0.6% to 1.4% of deliveries. It is unclear exactly how the jury viewed this statistic, but given that it found the defendant liable, it is reasonable to assume that this percentage was not low enough to find that a reasonable physician would be unable to recognize and treat the condition. Instead of relying on rarity of the condition as a defense, because this defense is unreliable, physicians should attempt to be prepared to treat such rare conditions and seek additional information when situations arise with conditions that are uncommon or unfamiliar to them.
- Case No. 2011-C-3016.Lehigh County Court of Common Pleas, PA, Sept. 7, 2013.