Legal Review & Commentary: Settlement for failure to timely perform C-section following drop in fetal heart rate
Legal Review & Commentary
Settlement for failure to timely perform C-section following drop in fetal heart rate
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Christine A. Turiano, Esq.
Associate with Kaufman
Borgeest & Ryan
Valhalla, New York
Barbara K. Reding, RN, LHCRM, PLNC
Clinical Risk Manager
Central Florida Health Alliance
Leesburg, FL
News: A 32-year-old pregnant woman presented to the hospital on Aug. 14, 2005, due to onset of labor. At 9:30 a.m., the fetal heart rate monitor showed a dangerous drop in the baby’s heart rate from 140 beats per minute to 60 beats per minute. The hospital did not contact the attending obstetrician until 30 minutes later. The obstetrician arrived within 22 minutes but did not perform an emergency cesarean section (C-section) until a half hour after his arrival. The baby, whose umbilical cord was compressed, suffered permanent brain damage. After a five-day trial, the parties reached an $8.5 million settlement.
Background: The 32-year-old patient had an uneventful pregnancy, with all prenatal testing yielding normal results. She arrived at the hospital at 1:30 a.m., after experiencing initial labor pains. A fetal heart monitor was placed on the patient’s abdomen. At 9:30 a.m., the monitor showed a drop in the baby’s heart rate from 140 beats per minute to a dangerously low rate of 60 beats per minute. Telephone records showed that the labor and delivery room nurse and nurse manager did not call the attending obstetrician until almost 10 a.m. The obstetrician arrived at approximately 10:22 a.m. and performed an emergency C-section at 10:55 a.m. The procedure was completed in four minutes. It was alleged that umbilical cord compression was the cause of the drop in the fetal heart rate. The baby suffered a hypoxic brain injury, resulting in permanent brain damage and the need for full-time care. He is unable to see, walk, or hold his head up. He is also prone to seizures and feeds through a straw.
The patient, individually and on behalf of her baby, brought a lawsuit against the hospital, obstetrician, nurse, and nurse supervisor. She claimed the delay in delivering the baby after signs of fetal distress caused the baby to suffer a hypoxic event, which resulted in permanent injury to the baby. The defense argued that the nurses and physician acted in accordance with accepted medical practices. They argued that the child’s brain damage was the result of prior placental infection. Additionally, the physician argued that he could not immediately perform a C-section on arrival to the hospital, as there was no anesthesiologist available at that time.
Following five days of trial, the parties agreed to a settlement of $8.5 million. Six million dollars of that amount will be allocated to the baby, and $2.5 million will be allocated to the child’s parents for pain and suffering. The hospital’s insurer paid the bulk of the settlement, with the physician’s insurer paying $1 million toward settlement.
What this means to you: When a claim is asserted, one of the initial steps in managing organizational risk is to determine whether the claim meets the criteria for medical negligence. This step would be accomplished through investigation and evaluation of the adverse event as soon as the facts and circumstances of the occurrence were reported to risk management. Conducting a root cause analysis and thorough event investigation as guided by the risk manager provides valuable information to aid in determining the value of and plan for directing the case upon receiving a notice of intent to pursue litigation.
Another step in the risk management process is to consider the strengths and weaknesses of the case to determine whether the organization will choose the path to settle, the path that leads to trial, or to deny the claim altogether. Risk managers in consultation with legal counsel and claims management specialists make such decisions. Claim dollars spent prior to settlement or trial preparation also factor into the equation.
There are advantages to either decision. If the case has little strength on behalf of the healthcare organization, adopting a settlement strategy saves trial costs, the potential for a sympathetic jury, and an unfavorable and costly plaintiff verdict. If the case has merit for the defense, strong supportive documentation, and an impressive group of expert witnesses, it might prove beneficial for the organization to take the case to trial with the expectation of achieving a verdict for the defense. Settlements, by nature, are frequently more predictable when compared with trial and verdict risks. It is not unusual that the strengths and weaknesses of cases, combined with the uncertainty of trial outcomes, prompt the drive toward settlement more often than toward trial.
This case is curious in that both a five-day trial and a settlement occurred. It makes a risk manager wonder what happened during the five days of trial testimony to persuade the defense counsel, the plaintiff’s attorneys, or both to seek and achieve settlement rather than a verdict. It is also possible that the tedious and highly emotional effects of a trial, especially one involving a child, moved the parents to request an end to the proceedings and receive an expedient resolution in this matter. The structure of the settlement is of interest as well, as it includes what could be considered compensatory as well as punitive damages.
The defense and plaintiff counsels presented assertions that could have been probable compelling factors in the move from trial to settlement. The plaintiff claimed a variety of delays in performing an emergency C-section resulted in hypoxia, permanent brain damage, and the need for full-time, lifelong care; the defense argued the child’s outcomes were due to a previous placental infection. Such statements again beg the question as to what was disclosed at trial to change the plans for the direction of this case.
At the heart of it all, however, remains a child who is prone to seizures, unable to see or walk, and who requires constant care and monitoring. Did 82 minutes of delays and failure to intervene in a timely manner permanently alter the life of what otherwise would have been a happy, healthy child? Or was an insidious infection to blame for the adverse outcome? The case is settled, and one might never know the answers to those questions. What is known is that care providers must be diligent in doing no harm by assessing, monitoring and intervening as needed, as quickly and appropriately as possible, to ensure the safety and wellbeing of all patients.
Reference
Superior Court of New Jersey, Law Division, Hudson County. Case No. HUD-L-3895-07.
News: A 32-year-old pregnant woman presented to the hospital on Aug. 14, 2005, due to onset of labor. At 9:30 a.m., the fetal heart rate monitor showed a dangerous drop in the babys heart rate from 140 beats per minute to 60 beats per minute.Subscribe Now for Access
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