Legal Review & Commentary
Broken neck during birth causes permanent injuries
$28.3 million awarded by jury
News: During childbirth, a baby's shoulders became stuck, which led doctors and nurses to attempt additional maneuvers to deliver the fetus. Although the parties disagreed as to which particular techniques were attempted, the baby ultimately was born with severe physical injuries, including intracranial bleeding, bruising, and a broken neck. The baby's parents sued the hospital for negligence, and they claimed in part that their daughter's injuries resulted from the hospital's failure to notify a neonatologist that a high-risk delivery was being performed. A jury returned a verdict in favor of the plaintiffs for $28.3 million, including $2.8 million in punitive damages.
Background: A 25-year-old pregnant woman was diagnosed as being at high risk for obstetrical and delivery complications because she was an insulin-dependent diabetic and because she previously had two miscarriages. She also had exhibited poorly controlled blood sugar levels during the pregnancy, and doctors suspected that the baby might have large shoulders and a large trunk due to her being so large as compared with her gestational age. Even though sonograms suggested that the baby was healthy and was moving her head and limbs without any problem, doctors scheduled the woman for an induction.
During the delivery, the normal gentle down-ward traction failed and the baby's shoulders became "stuck," a condition known as shoulder dystocia, which required the woman's obstetrician to attempt additional maneuvers to deliver the fetus. The woman's husband and sister, who were both present in the delivery room, claimed that a nurse on the health care team pressed on the woman's abdomen. They claim the nurse applied fundal pressure to help move the baby out, a technique widely criticized and regarded as dangerous because it can aggravate shoulder dystocia. The doctors and nurses, however, denied that fundal pressure had been applied, and they pointed to the lack of any such indication in the medical record. Instead, they suggested that the nurse merely was palpating the woman's abdomen for contractions so that the nurses could coach her in pushing. The doctors and nurses further claimed that the only pressure applied was at the mother's pubic bone, not at the top of the uterus, in an attempt to allow the baby's shoulders enough room to move free. Doctors and nurses also stated that McRobert's maneuver was used, wherein the mother's legs were flexed toward her shoulders to expand her pelvic outlet.
The 10.1-pound child ultimately was born flaccid, with no respirations, and without muscle tone. After an initial attempt to intubate the newborn by two nurses from the neonatal intensive care unit (NICU) was unsuccessful, a neonatologist arrived approximately 33 minutes after the birth. Although he successfully intubated the baby, she was found to have suffered intracranial bleeding and bruising, bleeding outside the brain, several broken bones including her neck, nerve damage, and a spinal cord injury. She also had no bowel or bladder function. The mother also suffered injuries, including complete paralysis of her left arm as well as partial paralysis from her mid-chest level down, which inhibited her ability to breathe.
After delivery, the newborn was transferred to another hospital, where she remained for 1½ weeks in intensive care before ultimately being transferred to a children's hospital. Three months after delivery, doctors performed grafting surgery on the baby's left arm in an attempt to obtain some function for her. Three years later, the girl required a surgical procedure to have a titanium rib implanted, and she still was suffering from severe scoliosis due to the irreparable spinal cord injury. Although the titanium rib helped to straighten the girl's spine and relieve some of the pressure that the scoliosis was causing to her left lung, doctors fear that she eventually will develop severe restrictive lung disease. Still ventilator-dependent, the girl is unable to sit or stand on her own, and she requires 24-hour-a-day care from two full-time nurses. In addition to her medicine and equipment costs, the family, which lived in a modest trailer home, pays nearly $600 a month in electricity bills because of the girl's ventilator and humidifier.
The baby's parents, on their own behalf and on behalf of their daughter, sued the hospital and the obstetrician for medical negligence during the delivery, although the plaintiffs voluntarily dismissed their claims against the obstetrician after the first day of jury selection. As part of their negligence claim against the hospital, the parents pointed to the fact that the facility had not followed its own internal policy of notifying a neonatologist of an impending delivery by an insulin-dependent diabetic mother.
In its defense, the hospital claimed that its policy required notification only if doctors suspected that the baby would need resuscitation, which was not the case here. The hospital also maintained that the baby's injuries may have been the result of congenital defects or medical attention given to the baby after she was transferred to the second hospital. If the injuries were caused at the first hospital, however, the hospital argued that they were caused by the use of traction by the obstetrician during delivery, which was necessary given the emergency situation that arose. Finally, the hospital claimed that the child received adequate ventilation with bag/mask ventilation while awaiting the arrival of the neonatologist, as evidenced by the fact that the baby became "pink" soon after delivery. The treating neonatologist testified that bag/mask ventilation can substitute for intubation temporarily, as long as someone is pumping the bag, and that the NICU nurses did a good job of keeping the baby ventilated pending his arrival.
After a three-week trial in which five experts testified for the plaintiffs and eight experts testified for the defense, the jury concluded that the hospital's labor and delivery nurses extensively injured the baby girl during her birth. The jury awarded $28.3 million in favor of the plaintiffs, including $2.8 million in punitive damages and $1.9 million in past medical expenses and likely accounting for the plaintiffs' suggested $15 million life plan for their daughter. The jury also apparently awarded nearly $10 million in noneconomic damages; ironically, soon after the plaintiffs' lawsuit was filed, the Texas legislature passed legislation limiting noneconomic damages in medical malpractice suits against hospitals or doctors to $250,000. That legislation, however, did not affect the jury's award in this case because it was not implemented before the lawsuit was filed.
What this means to you: "This is just the kind of case that a defense counsel never wants to take to a jury," says Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD. "Regardless of the facts or a determination of liability, the plaintiff's injuries seem to demand compensation, meaning the defense is starting from a negative position." Cases like this one must be settled before trial if at all possible.
One fact that stands out in this case is that not only was the patient's husband in the delivery suite, but so was the patient's sister. "Although the presence of family members and others in the delivery rooms is often used as a promotional device, it is a practice that needs to have some constraints, such as requiring family and others not directly providing care to leave the delivery suite when complications arise," advises Barton. This practice is not suggested as a means of hiding or covering up evidence of malpractice, but rather to allow the health care team to do its job without distractions. Barton has found that the presence of individuals who are not trained health care professionals allows for interpretations that may have nothing to do with reality.
Another issue raised in this case is the fact that the hospital did not follow its own policy of notifying a neonatologist of an impending delivery by an insulin-dependent diabetic mother. Given the fact that this patient was deemed to be high risk based on several factors, it would appear that the neonatologist should have been called, suggests Barton. "Although hospital policies and procedures must provide for discretion, they must not be worded such that they can be misinterpreted, as perhaps happened in this case," says Barton.
The facts also seem to indicate that the various defendants seemed to be more interested in pointing fingers and laying blame on others rather than in determining the exact cause of the child's extensive injuries. "To proffer that such injuries may be the result of genetic defects and not to offer proof via a placental pathology report borders on inappropriate behavior. This is the type of case that would benefit immensely from joint defense where the focus is on appropriate resolution of the claim and not engaging in the blame game," Barton says.
Reference
Hidalgo County (TX) District Court, Case No. C-2147-03-E.