Second largest verdict in NY state history awarded to family of girl for negligent delivery by local hospital
By Jonathan D. Rubin, Esq.
Kaufman, Borgeest & Ryan
New York, NY
Alyssa M. Panaro, Esq.
Kaufman Borgeest & Ryan
Carol Gulinello, RN, MS, CPHRM
Vice President, Risk Management
Lutheran Medical Center
Brooklyn, New York
News: A jury in Suffolk County, NY, recently handed down the second largest malpractice verdict in the state’s history, awarding a Long Island family $130 million for the allegedly botched delivery of their now-brain damaged daughter. The verdict was awarded against a large hospital in the area that was found to have departed from obstetrical standards of care 10 years ago while delivering the infant plaintiff, causing the child to be born with cerebral palsy. The nine-figure verdict was handed down after the plaintiffs’ attorney turned down an $8 million settlement offer and proceeded to try the case in front of two separate juries, the latter of which resulted in a hung jury.
Background: On Nov. 1, 2002, the plaintiffs presented to a local hospital for the delivery of their daughter. However, according to the plaintiffs’ attorney, the hospital nurse attending to the plaintiff mother committed several acts of medical malpractice during the delivery. The girl, now 10 years old, has severe cerebral palsy, and her injuries have left her, as the plaintiffs described it, a "prisoner in her own body." Although the infant-plaintiff is able to comprehend and understand her surroundings, she is unable to speak or walk as a result of oxygen deprivation at birth that resulted in severe brain damage.
At trial, plaintiffs’ attorney argued that the labor and delivery nurse committed easily avoidable errors. They said that had she communicated with the obstetrician just 20 minutes sooner, the infant plaintiff’s injuries could have been avoided. Specifically, the plaintiff’s attorney claimed that she failed to notify the obstetrician that an Intrauterine Pressure Catheter (IUPC) was not working for approximately 30 minutes on the evening that the plaintiff was born and failed to reapply an external monitor on the plaintiff mother’s abdomen when the IUPC stopped working.
IUPCs are used during labor to measure the frequency, duration, and strength of uterine contractions. Although rare, there are several reports of neonatal morbidity and adverse outcomes associated with the use of IUPCs. In addition, plaintiffs’ counsel presented evidence that the hospital nurse failed to notify the obstetrician of decelerations in the fetal heart rate that were "nonreassuring;" that she failed to timely reposition, provide oxygen and sufficient fluids to the plaintiff mother; and that she failed to timely discontinue the drug oxytocin, which is used to induce and enhance labor. Also presented at trial were the undisputed facts that the plaintiff mother suffered a uterine rupture during labor and that the infant plaintiff was born with cerebral palsy. Furthermore, plaintiffs’ counsel argued that these departures resulted in the obstetrician’s failure to perform a timely emergency cesarean section that might have prevented the infant plaintiff’s sustained brain injuries, including the inability to walk or talk. At an earlier trial, the obstetrician conceded a departure by the labor and delivery nurse, which vindicated him from liability and left the hospital as the sole target of the lawsuit for the nurse’s departures.
In response, at trial, defense counsel argued that there were no departures by the hospital because the labor and delivery nurse was measuring the plaintiff mother’s contractions by hand during the time and was analyzing the fetal heartbeat from the audible sounds emanating from the fetal heart rate monitor during the time the IUPC was not working. Furthermore, defense counsel also argued that the infant plaintiff’s injuries resulted from the plaintiff mother’s suffering a uterine rupture and abruption of the placenta approximately 30 minutes subsequent to the alleged negligence by the obstetrics team at the hospital and approximately 15 minutes prior to the infant plaintiff’s delivery by emergency cesarean section.
Despite defense counsel’s arguments, the jury believed the plaintiff’s counsel’s rebuttal that the plaintiff mother’s medical complications were relatively minor problems that did not cause the infant plaintiff’s catastrophic injuries. As a result, the jury unanimously awarded $130 million dollars to the plaintiffs, which includes, among other calculations, $82.5 million for the infant plaintiff’s future pain and suffering, $10 million for her past pain and suffering, $5.8 million for home health aides and other costs of supervised living, $5.5 million for lost earning capacity, $4.2 million for physical therapy, and $1.4 million in speech therapy. The state’s Medical Indemnity Fund, established in 2011, will cover all future healthcare costs awarded to the infant plaintiff. The hospital’s insurance carriers will have to cover the cost of the plaintiff’s attorney fees.
Though only the second highest total malpractice verdict in state history, the $82.5 million award for future pain and suffering far exceeds that of any prior malpractice ruling. In fact, the single larger verdict, totaling $212 million, apportioned only $20 million for future pain and suffering, and even that amount was lowered to $4 million by an appellate court. Accordingly, counsel for the defendant hospital likely will appeal the verdict in a higher court.
What this means to you: Professional associations routinely publish recommendations/guidelines for providing the standard of care in their respective clinical specialty. The Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN) is the professional organization that governs the standards for women’s health nursing.
The AWHONN position paper (approved by AWHONN in 1998, and revised and retitled in November 2008) articulates the organization’s position on key issues within the field of fetal heart monitoring. Clinical recommendations of other professional organizations, based on seminal research, also are noted. According to this research, the frequency of assessment using auscultation in these studies varied from every 15-30 minutes during the active phase of the first stage of labor to every 5-15 minutes during the second stage of labor. In most studies, a 1:1 nurse-patient ratio was used.
The components of fetal monitoring, according to AWOHNN, include application of fetal monitoring components, intermittent auscultation, ongoing monitoring and interpretation of fetal monitoring data, initial assessment of the laboring woman and her fetus, and ongoing clinical intervention and evaluations of the woman and her fetus.
In this case, the labor room nurse stated she measured the mother’s contractions by hand and auscultated the fetal heart from the audible sounds emanating from the fetal monitor. What is not mentioned in the summary is the frequency and duration of the monitoring provided and the length of time she actually "laid hands" on the patient to monitor the strength and frequency of the contractions. The patient’s prenatal history also would be relevant in this situation. Was this the patient’s first pregnancy and, if not, what was her experience with her prior pregnancies? Apparently this was not well-documented.
Although it is acknowledged by AWOHNN as an acceptable nursing practice to monitor patients in labor as described above, it is routine to utilize advanced technology in the monitoring of patients in the clinical setting. One method of monitoring the frequency, duration, strength, and regularity of contractions is by the use of an IUPC monitoring device. One of the benefits of using this device is to alert the practitioners to any signs of deviations from the norm, recognize the nuances of the uterine contractions, and appreciate early evidence of hyperstimulation of the uterus. Unrecognized hyperstimulation of the uterus with the use of oxytocin, a labor-enhancing drug, predisposes a patient to a uterine rupture, as was noted in this case. Should an IUPC not be available, the use of an external monitor applied to the patient’s abdomen to measure contractions would be expected. Along with measuring the quality of maternal contractions, fetal heart monitoring data is essential in alerting the caregiver to episodes of fetal distress. Fetal distress, evidenced by non-reassuring decelerations, is considered an emergency and requires immediate resuscitation that should include repositioning the patient from the supine position to the lateral position, administering oxygen and IV fluids, and discontinuing oxytocin. According to the case summary, none of these interventions were performed by the labor room nurse. This was a deviation from the standard of care.
Additionally, critical information was not immediately relayed to the attending physician regarding the signs of fetal distress, which would allow him/her to take urgent steps to reconsider the patient’s treatment plan. Communication and escalation to the attending in charge are an integral part of a culture of safety and are an expectation for patent safety.
The development of a culture of safety and teamwork is encouraged to ensure optimal patient outcomes. In addition to relevant policies and procedures, practical approaches to patient care such as simulation drills to address emergencies, required communication, escalation, and documentation of these emergencies are prudent risk management strategies.
Reilly v. St. Charles Hospital and Rehabilitation Center, Index No. 071904, Sup. Ct., Suffolk County (2013) (citation pending). See Reilly v. Ninia, 81 A.D.3d 913 (2011) (prior decision).