Legal Review & Commentary

Failure to timely perform a cesarean section results in severe brain injury, $55 million award

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

Tracey A. Reiser, Esq.
Kaufman Borgeest & Ryan
Valhalla, NY

Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs
Winthrop-University Hospital
Mineola, NY

News: A 32-year-old woman presented to the hospital following a planned home delivery with the assistance of a midwife. During the second stage of labor, the infant became stuck. The woman was taken to the emergency department where she waited in excess of two hours before an emergency caesarean section was performed. The infant was born with cerebral palsy and a seizure disorder. The jury returned a verdict for $55 million.

Background: In March 2010, the plaintiff, a 32-year-old female, had prepared for a home delivery with the assistance of a midwife. According to the plaintiff, she began experiencing difficulties during the second stage of labor. The difficulties included overwhelming contractions and involuntary pushing. After approximately 12 hours of labor at home, the baby became stuck and a decision was made that the plaintiff required transport to the hospital. The plaintiff then was rushed to a Maryland hospital. The physicians at the hospital ordered an emergency caesarean section in light of the plaintiff’s inability to deliver the infant vaginally; however, the emergency caesarean section was not performed for more than two hours following her arrival to the hospital. The infant ultimately suffered from hypoxia leading to cerebral palsy and seizures. As a result of his injuries, the infant, now 2 years of age, has the functional abilities of a 4-month-old child.

The parents of the infant commenced suit in February 2011 against the hospital. They alleged the hospital failed to timely perform an emergency caesarean section following the mother’s arrival to the hospital. The plaintiffs also alleged that had the hospital timely delivered the infant via caesarean section, he would not have suffered a brain injury (hypoxia) or seizure condition. The plaintiffs claimed that the infant’s hypoxicischemic encephalopathy and cerebral palsy were the result of oxygen deprivation suffered during the two hours the plaintiff waited for the performance of the emergency caesarean section, which resulted in permanent and severe cognitive delays. They argued that there was no evidence to support that anything that had happened during the hours of labor at home resulted in any injury to the infant. According to the plaintiffs’ experts, the emergency caesarean section was appropriately ordered based upon the plaintiff’s presentation; however, it should have been performed within 30-45 minutes following the mother’s arrival to the hospital. The plaintiffs contended that they were told the results of blood tests held up the performance of the emergency caesarean section.

The hospital vehemently denied the plaintiff’s allegations of malpractice. They argued that the plaintiff and infant received appropriate medical care and the standard of care was adhered to at all times. They also contended that the infant suffered from oxygen deprivation during the earlier stages of labor, which took place at home and prior to her presentation to the hospital, which resulted in the infant’s injuries.

The case proceeded to trial. The jury awarded $55 million including $25 million for future medical expenses, $4 million for future lost wages, and $26 million for non-economic damages/pain and suffering. Due to a Maryland state cap on noneconomic damages, the $26 million award was reduced to $665,000. This was the largest recorded medical malpractice verdict in that state.

Despite the juries’ verdict, the nurse midwife’s license was suspended by the state board of nursing for her alleged actions and participation in the home delivery during the hours prior to the plaintiff’s presentation to the hospital. The plaintiffs’ counsel argued that the nurse midwife’s purported negligence was irrelevant in determining whether the hospital was negligent. They also argued that evidence surrounding the nurse midwife’s suspension would prejudice the jury and ultimately, the jury was not permitted to hear this evidence. The jury only was permitted to hear evidence about the treatments the nurse midwife rendered, but not about how the defense experts believed some of those treatments to be deviations from the standard of care. Those deviations included the administration of oxytocin, a labor-stimulation drug, via intramuscular shots, instead of properly administering it slowly through an intravenous drip. The defense, if permitted to present this information to the jury, would have contended that published side effects of administering oxytocin in this manner included brain damage and seizures. The defense would have argued that this deviation, coupled with prolonged labor at home, were the true cause of the infant’s oxygen deprivation and resultant injuries.

What this means to you: A 32-year-old woman gives birth to a neurologically-impaired infant. This situation is a risk manager’s nightmare from a financial and public relations perspective. In this case, we again see the delay in treatment allegation with reported catastrophic results. The case facts do not reveal the patient’s GPA (gravid/para/abortus) status or anything about prior pregnancies. The plan of home delivery using a midwife would lead to the assumption that the patient had appropriate and timely prenatal care.

The patient presented with arrested labor after attempting home delivery and was rushed to the hospital. Clearly the institution’s clinical staff quickly realized that a caesarean section was the only possible way to go, but for reasons which are not clear, the procedure was not done for more than two hours. The patient labored for 12 hours at home, which would suggest that the fetus was already stressed at the second stage of labor, which failed to progress. The facts do not shed light on why the caesarean section took so long to perform. However, the hospital is a tertiary care facility well known for its excellent care and clearly had the resources available to perform a crash caesarean section.

It is unknown whether the clinical staff might have thought there was more time to take the baby or that the mother might have needed to be stabilized prior to surgery. Unfortunately in many cases, none of this is the issue, and internal issues in the unit might have led to the delay. It would be interesting to see the root cause analysis of this event to find out if there was a problem with the room, anesthesia, the surgeon, or nursing staff. Was the failure to perform the section more timely due to a breakdown in communications among the clinical teams? Plaintiff’s experts opined that the caesarean section should have been done within 30-40 minutes after the mother’s arrival in the hospital. This is a very difficult case to defend as most jurors will accept the proposition that sooner would have been better. If the patient had the caesarean section within minutes of arrival, the baby might have been in the same situation, but it is unlikely that the jurors would have held the hospital responsible due to the 12 hours of home labor and the mother’s decision to use a midwife. Even assuming the defense was able to mount credible expert testimony that the delay did not contribute to the outcome, the defense becomes “it didn’t matter,” rather than a solid argument as to why the patient may not have needed a caesarean section at that moment. This remains a very hard sell.

In some jurisdictions, these types of cases simply do not go to trial. The burden of the defense in arguing that two hours was the same as the plaintiff’s suggested 30-40 minutes is a difficult one to overcome. The testimony becomes a battle of the experts over complex questions of medical physiology. It is not surprising that a lay jury might not react well to medical testimony about hypoxic-ischemic encephalopathy and cerebral palsy.

It is also of interest that the case was litigated at the point the child was only 2 years of age rather than waiting for the child to be older. It might be that this is common in this particular jurisdiction, but many such cases are filed and tried when the child is older. This 2-year-old is showing the mental status of a 4 month old, and it is possible that the child’s condition might improve or there might be some expectation of improvement in the future. The decision as to whether to push for an earlier trial on the theory that the plaintiff will deteriorate, or hold off waiting for the condition to improve, is a common conundrum for defense counsel and hospital risk managers.


2011CV647, (Col. Dist. Ct. 2012).