By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: The patient, an adult woman, was admitted to a medical center while 39 weeks pregnant in March 2002. On the day of delivery, the patient complained of a lack of fetal movement, and her primary obstetrician referred the patient for a fetal nonstress test (NST) to measure movement, heart rate, and reactivity of the baby. A second obstetrician, who was a member of the hospital staff, administered the NST. The results of the test were indicative of fetal distress; however, the second obstetrician did not personally notify the first obstetrician of the dangerous results and waited 90 minutes until the first obstetrician came to perform a caesarean section. After the child was born, he was treated for cerebral palsy and meconium aspiration syndrome. The patient, individually and on behalf of her son, brought suit against both obstetricians and the medical center, and she alleged that all three parties were negligent with respect to her treatment. The defendants denied that any malpractice had occurred. The jury found both obstetricians and the medical center negligent, and it awarded the patient and her son $9.6 million in damages. Damages were split 65% against the primary obstetrician and the remaining 35% jointly and severally against the second obstetrician and the hospital.
Background: The patient was a healthy adult woman who was 39 weeks pregnant and sought admission to a medical center in March 2002. On the day of delivery, the patient complained to her primary obstetrician of a lack of fetal movement, and the obstetrician referred the patient for a fetal nonstress test (NST). The test is noninvasive, and it is designed to measure the heart rate of the fetus in response to its own movements. Healthy babies respond with an increased heart rate during times of movement and decreased heart rate during rest. The test was administered by a different obstetrician, a member of the hospital staff. Upon completion of the test, the results were indicative of fetal distress. The second obstetrician sent a nurse to notify the first obstetrician of the NST results and waited 90 minutes until the first obstetrician arrived to perform a caesarean section on the patient. The child was born without further complication, but the damage already had been done. He was treated for cerebral palsy and meconium aspiration syndrome. The syndrome is a leading cause of severe illness in newborns, and it occurs when the baby breathes in a mixture of meconium and amniotic fluid. These conditions resulted in spastic quadriplegia, cortical blindness, and an inability to speak. At trial, experts debated the child’s life expectancy, with the plaintiffs’ experts setting the life expectancy at 50 years or more from the time of trial and the defense’s experts setting it at no more than 20 years.
The patient, individually and on behalf of her infant son, brought suit against both of the obstetricians and the medical center. She claimed that all three parties were negligent, in different ways, during the course of her treatment. Against the primary obstetrician, the main claim was that he had failed to properly monitor fetal growth and failed to respond appropriately to symptoms such as high blood pressure and high levels of protein in the patient’s urine. The plaintiffs’ experts testified that the primary obstetrician should have been able to diagnose a placental problem based on these symptoms. The primary obstetrician, and his medical experts, defended on the basis that there was no reason to diagnose a placental problem prior to the NST. Against the second obstetrician, the main claim was that he should have personally notified the primary obstetrician of the NST results and immediately ordered a caesarian section, so the 90-minute delay caused the child additional harm. The second obstetrician, and his medical experts, testified that the child already had sustained his injuries by this point in time, thus the delay was not the direct cause of any harm. An additional claim against both obstetricians was based on their failure to diagnose placental insufficiency and hypoxia in the time period leading up to the child’s birth. After a six-week long trial, the jury deliberated for seven hours and found both the obstetricians and the medical center were negligent. The jury awarded a total of $9.1 million for the child and $500,000 for the mother.
What this means to you: In this case, each physician faced liability from different underlying causes, and these reveal lessons which all physicians can learn from. A major issue for the primary obstetrician related to a failure to properly monitor fetal growth and respond to alarming symptoms. Medical professionals must follow strict protocols in monitoring a child’s vital signs, and they must take all necessary precautions to help prevent injuries during birth.
The American Congress of Obstetricians and Gynecologists (ACOG) has established guidelines for physicians to follow, including specific guidelines for fetal heart rate (FHR) monitoring. FHR interpretation is the gold standard for diagnosis of fetal distress. The guidelines include a three-tier classification system for FHR tracings: normal, indeterminate, and abnormal.
NST uses fetal heart rate tracings to determine the adequacy of oxygenation from the placenta to the fetus. Immediate action must be taken once determined that the NST is non-reactive and the fetus is not "asleep." Community standard is 30 minutes from decision (the non-reactive NST) to incision (caesarian section), not 90 minutes, and required an urgent call from the second obstetrician to the primary obstetrician.
One difficulty with monitoring fetal growth is the variability in interpreting tracings, which is an issue with certain tests throughout the medical field. If two physicians can look at the same printed results and come to different conclusions, this situation necessarily creates problems with administering treatment. If the case progresses to trial, this situation creates problems with defending against negligence. Objective guides, such as the guidelines established by The American Congress of Obstetricians and Gynecologists (ACOG), can help physicians and hospitals to defend themselves. Proof that the physician followed the appropriate guidelines can be a strong tool in court to prove that the physician acted within the standard of care, because this action is how other reasonable physicians would act in the same or similar situation (assuming that the guidelines are widely accepted in the field). Many hospital obstetrics departments offer FHR tracing classes in an effort to standardize nurse and physician interpretation of fetal monitoring strips, and this education can be very helpful in proving that a hospital adequately taught its employees regarding proper reading procedures.
If a diagnostic test reveals critical information, or relates to an emergent condition, physicians and hospital staff members must act quickly on this information. After performing the NST, the second obstetrician had a duty to the patient to exercise the proper standard of care. The plaintiffs alleged that the physician’s delegation of a nurse to inform the primary obstetrician and subsequent 90-minute delay before performing the caesarian section constituted medical malpractice. Unnecessary delays can cause patients serious harm, so in situations in which time is of the essence, physicians must be cautious and prioritize cases to the best of their abilities. If the primary physician had a legitimate reason for his delay, such as a preoccupation with a similarly emergent patient, then these circumstances could be a defense. However, the second obstetrician here did not have a valid reason for delaying the caesarian section.
Physicians and hospitals must be cognizant of time-sensitive activities, which can occur with great frequency. They must be prepared to act on critical information, rather than unnecessarily delay, as this delay might lead to serious harm to patients.
Superior Court of Middlesex County, NJ. Case No. MID-L-1853-07. Oct. 11, 2013.
