Legal Review & Commentary: $21 million jury verdict issued for victim of birth injury
$21 million jury verdict issued for victim of birth injury
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Elizabeth V. Janovic, Esq.
Associate
Kaufman Borgeest & Ryan
New York, NY
Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs
Winthrop-University Hospital
Mineola, NY
News: A woman prematurely gave birth to an infant in 2002. The woman’s labor was induced, and she experienced a prolonged vaginal birth. The fetus was under distress during delivery. Plaintiffs claimed the infant should have been delivered by caesarean section, because an umbilical cord was wrapped around the infant’s neck causing oxygen deprivation and resulting in cerebral palsy. In 2012, a jury awarded $21 million to plaintiffs and their 9-year-old, wheelchair-bound infant who suffers with cerebral palsy and a host of disabilities.
Background: Plaintiff’s estimated date of delivery was Nov. 6, 2002. However, on Sept. 6, 2002, plaintiff was admitted to the hospital with preeclampsia. The fetus was at 31 and 2/7 weeks gestation. Plaintiff was evaluated by a maternal fetal medicine specialist who determined that a vaginal delivery was appropriate as long as plaintiff and the fetus remained clinically stable. The specialist warned that if plaintiff became unstable or if non-reassuring fetal heart tracing remote from vaginal delivery was detected, then a caesarean section should be performed. On the morning of Sept. 7, 2002, plaintiff was started on oxytocin and dinoprostone to induce labor.
An obstetrician/gynecologist evaluated plaintiff at 11:10 a.m. and noted that plaintiff was 4 cm dilated, 100% effaced, and the fetus was at -1 station. The fetal heart rate became non-reassuring with late and prolonged variable decelerations after noon. At 5:13 p.m., the infant was born. He was pale and required positive pressure ventilation because of bradycardia and poor respiratory effort. His initial Apgar scores were 4 at one minute and 7 at five minutes after birth.
Plaintiffs filed suit on Feb. 18, 2011. They argued that the hospital failed to recognize the signs of a serious medical condition, failed to monitor during the delivery, and failed to perform a caesarean section delivery. A physician testified at trial that the infant was at risk for periventricular leukomalacia. The physician said it was caused by periods of oxygen deprivation due to the infant’s umbilical cord that was wrapped around his neck throughout the delivery. Plaintiff said the hospital never discussed this issue with her, nor was the option of a caesarean section offered. Plaintiffs claimed that the infant, who was 9 years old at the time of resolution of this case, suffers from neurological injuries, spastic diplegic cerebral palsy, receptive language and expressive language delay, developmental disabilities and delays, respiratory distress syndrome, perinatal depression, apnea, apraxia, hypoxia, cerebral palsy, and hypertonia. Plaintiff also argued that the infant’s earning capacity has been severely diminished. The infant has a fully functioning mind, but the combination of cerebral palsy and limited mobility, use of his hands, and speech has trapped him inside a broken body. He will likely be in a wheelchair for the rest of his life.
The hospital stood by all of the care provided by the nurses and doctors in this case. Defendants claimed that post-birth ultrasounds showed no swelling in the infant’s brain, which should have presented if there was oxygen deprivation during the delivery. Additionally, they said that blood tests performed on the infant’s blood acids showed no signs of oxygen deprivation. The hospital claimed that the infant’s premature birth was the ultimate cause of his current condition.
The trial began on July 16, 2012, and ended on July 31, 2012. The jury held in favor of the plaintiffs and awarded $21 million. The award breakdown is: $18 million for the infant’s medical care, $2 million for lost potential wages, and $1 million for non-economic pain and suffering. The family most likely will receive $20.62 million, due to a state cap on non-economic damages.
What this means to you: Impaired infant cases are very dangerous due to the significant damages and the difficulty of getting a jury to accept the fact that the child is impaired when nothing was done wrong. This case illustrates the classic dilemma of not waiting to perform a caesarean section and put the baby at risk vs. moving too quickly to a caesarean section that has some risk to the mother and might be disappointing to the woman who wanted to deliver naturally.
Several issues are present in this case report. Although the due date was November, the patient presented with preeclampsia in September. At 31+ weeks, the fetus was clearly mature enough to be delivered, and the obstetrician induced labor. Consider the “warning” issued by the maternal-fetal medicine (MFM) specialist: if plaintiff became unstable or there were non-reassuring fetal tracings, then a caesarean section should be performed. Unfortunately, the clinical staff called in an appropriate consult and then chose to ignore the advice that they sought.
The fetal tracings became non-reassuring with late and prolonged variable decelerations after noon, yet the infant was not delivered until 5:13 p.m., some five hours later. We don’t know from the information presented whether the fetal heart rate tracings subsequently became more reassuring, but what is clear is that the attending obstetrician chose not to go to a caesarean section to get the baby out. From a defense standpoint, the obstetrician is at greater legal peril having called for the MFM consult and then discounted the recommendation. Surely this consult was shown to the jury members, who probably had difficulty understanding the obstetrician’s thought process. The patient and her family also were never given the option of proceeding to a c-section.
As a general proposition, the likelihood of success of these cases is more tenuous than medical malpractice cases in other specialties. The jury is presented with complex testimony and conflicting opinions, then left to decide what really happened. Two or more experts banter with opposing counsel over the cause and effect of peri-ventricular leukomalacia (PVL) and the significance of blood gas analysis. Assuming that member of a lay jury even understand the concept of what PVL is and the finer points of acid base balance of the blood gases, they still are faced with a 9-year-old child who has significant and devastating injuries.
Contrasted with the highly complex nature of the defense, which relies on the lack of swelling in the brain and blood chemistry, the plaintiff has a simple argument: All they had to do was perform a caesarean section, a procedure well understood by lay people and generally thought of as a simple procedure. The case summary also refers to the umbilical cord wrapped around the neck, another apparent clear cause and effect of the damages easily understandable by the jury. Also consider that this patient was induced because of a diagnosis of preeclampsia. This condition by its very nature puts the woman and the unborn child at risk and would seem to argue in favor of the safest delivery, which according to the plaintiff’s expert was a caesarean section.
The child is born with less than stellar APGAR scores and poor respiratory effort, requiring supplemental oxygen, and subsequently experiences cerebral palsy and delayed development. While clinical authorities will argue over whether cerebral palsy is truly caused by malpractice, the damage is apparent. Unless the defense can come up with another plausible explanation for the child’s condition, the likelihood of successfully defending the case is small.
So what does this mean to me? If your physicians are going to call consults, they should listen to the advice or at least document in the record why they didn’t. Patients who present precisely because of a complication such as preeclampsia warrant consideration for more aggressive early intervention than other patients. Consulting with the patients is a must and, in high-risk situations, the patient and their family members should be kept informed and consulted as to the plan. Finally, some cases have such a high risk at trial that early reasonable settlement should never be automatically discounted.
Reference
Circuit Court of Maryland, Baltimore City: 24C11001080 (2012).
News: A woman prematurely gave birth to an infant in 2002. The womans labor was induced, and she experienced a prolonged vaginal birth. The fetus was under distress during delivery.Subscribe Now for Access
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