Legal Review & Commentary: Jury slaps hospital with $103 million verdict for premature delivery of now brain-damaged child

By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY

Allison N. Angel
Law Clerk
Kaufman Borgeest & Ryan
New York, NY

Barbara Reding, RN, PLNC
Licensed Health Care Risk Manager
Hernando, FL

News: On Aug. 24, 2012, a jury awarded the family of a 17-year-old girl with cerebral palsy upward of $100 million in damages and found that the birth hospital's negligence in caring for her pregnant mother caused premature birth and permanent brain injuries. According to the lawsuit, the hospital's staff failed to recognize that the mother was experiencing contractions and thus failed to prevent a pre-term delivery. As a result, one of the twin girls delivered suffered a brain injury, which caused cerebral palsy and other permanent neurological disorders.

Background: On Jan. 14, 1995, a woman pregnant with twins suffered a premature membrane rupture only 24 weeks into gestation and was taken to a local hospital for immediate care. Though not in active labor upon her admission, the woman began experiencing mild contractions shortly thereafter, and she was given intravenous magnesium sulfate (MgSO4) to halt the contractions.

A fetal-maternal medicine specialist was called in to examine the fetal ultrasound, and he diagnosed Twin A (the plaintiff) as having a partial premature rupture of the amniotic membrane, good fetal movement, and a normal anatomy. He recommended reserving caesarean section for obstetrical indications, and the woman was transferred to the antepartum maternity floor. Bed rest was ordered.

The woman remained stable through Jan. 17, but on the morning of the 18th, she had a second onset of early contractions. MgSO4 again was administered, and the contractions again subsided. However, the woman complained of intensifying abdominal pain and at 2:50 a.m. on Jan. 22, she was rushed to the labor and delivery unit. Her cervix quickly dilated from 6 to 10 cm, and the hospital's obstetrical-gynecological resident was called to deliver the twins. The infants were born three months early, and each weighed less than 2 pounds. Twin B was delivered without issue. As a result of the premature delivery, Twin A now suffers from cerebral palsy, spastic quadriplegia, grade I intraventricular hemorrhage, periventricular leukomalacia, hyperbilirubinemia, hyaline membrane disease, anemia, and cytomegalovirus disease.

At trial, plaintiff's expert stated that the hospital departed from an accepted standard of medical care by allowing the pregnant woman out of bed and for failing to keep her in a recumbent position. His testimony attributed the premature birth to the woman's level of activity during her hospitalization. The expert then cited the pre-term birth as the cause of the infant plaintiff's current medical conditions, along with the compression-decompression syndrome that occurred during delivery as a result of the doctors' failure to perform an episiotomy or caesarean section. Moreover, the woman's husband testified that on the night of the premature delivery, the hospital staff ignored his wife's complaints of abdominal pain and gave her only an allergy and anti-itch medication and forced the husband to go home.

The jury deliberated for three days and ultimately found the hospital vicariously liable for the actions of its employees. The family was awarded $103 million for pain and suffering, lost wages, and future medical expenses. Two individual doctors were named as defendants to the action, but ultimately they were not found to be liable.

What this means to you: This case, with its subsequent substantial verdict for the plaintiff, presents several interesting risk management considerations for healthcare providers. Allegations of failure to recognize and treat premature labor; failure to provide appropriate obstetrical assessment, diagnosis, and intervention within the prevailing standard of care; and failure to prevent premature birth are but a few of the risk concerns presented in this case. The situation of possible premature birth of twins automatically increases the risk of negative outcomes for the mother and the neonates, as well as increasing the potential for litigation for all parties involved in the process of caring for high-risk patients such as those identified in this case.

It is interesting to note the hospital proceeded with the risk of trial, often not the choice in what is frequently considered a "bad baby case," a case in which the plaintiff has suffered lifelong birth-related injuries due to alleged medical negligence. Perhaps mediation had been attempted over the years and failed, which left no option for the defense other than a jury trial. Therein, however, lies yet another risk for healthcare providers: the double whammy of a sympathetic witness combined with a sympathetic jury. Imagine introducing to the jury an attractive 17-year-old female who enters the courtroom in a wheelchair, cognitive issues evident, with plaintiff's expert witnesses assuring the jury that this situation is how this young woman will spend the rest of her life, all due to obstetrical care delivered outside of the prevailing standards 17 years prior. Presenting a plaintiff who invokes compassion, empathy, and/or sympathy increases the risk for the defense of a favorable verdict for the plaintiff.

It was indicated magnesium sulfate (MgSO4) was administered to the patient on two occasions in an attempt to retard premature labor. Orders for complete bed rest (constant recumbent position) versus bed rest with bathroom privileges (increase in physical activity) was a point of argument related to the standard of care. Assessment of the patient for signs and symptoms of premature labor was critical, particularly as the patient voiced complaints of intensifying abdominal pain. A risk reduction consideration here is the importance of accurate and appropriately descriptive documentation, medical record entries that clearly paint the picture of the care that was delivered to the patient. Thorough documentation of the assessment, monitoring, interventions, and treatment of patients can make or break a case for the defendants or the plaintiffs.

Another risk reduction consideration is that of effective and caring communication. Establishing a positive relationship with patients serves to keep lines of communication open. In this case, the patient and her spouse believed the patient's complaint of intensifying abdominal pain was being ignored. Care providers taking time to reassure the patient, sharing with her and her spouse the interventions that were being done and the rationale for the same might have aided in reducing the potential for patient and family anger and frustration, which often leads to thoughts of litigation. The perception of "forcing" the patient's husband to go home might have been averted had calm and soothing explanations and reassurance been provided at the time.

The plaintiff award was based in part on the failure to prevent premature birth. Of curiosity in the jury verdict is the fact that while Twin A suffered permanent congenital injuries due to the premature birth as a result of medical negligence, Twin B, obviously also born prematurely, did not. Understandable, based on plaintiff's arguments and witnesses, is the jury's finding of pain and suffering, future medical expenses, and lost wages for Twin A. At the same time, it raises the question of why Twin A suffered birth-related injuries and Twin B did not, if indeed the premature birth was a critical factor? This, in turn, raises the question of the root cause of Twin A's injuries. Premature birth? Medical negligence? Partial rupture of Twin A's membrane? Different care providers? Same hospital, same policies, and same procedures. Why then, the difference of a negative outcome for one and not the other? What were the mitigating factors in Twin A's birth versus Twin B's birth? Risk reduction strategies in this case include performance of a root cause analysis immediately following the birth event, peer review evaluation of the clinical record, and hospital policy and procedure review.

Two physicians initially cited as defendants in this case ultimately were not held culpable. The finding of liability on the part of the hospital only, vicariously responsible and accountable for its employees and their actions, indicates the evidence presented in this case was not sufficient to support proof of appropriate care or interventions rendered. Risk management and risk reduction strategies are key in ensuring the safety and well-being of healthcare recipients in all healthcare settings.

Reference

2011 NY Slip Op 33322 (N.Y. 2011).