Legal Review & Commentary: Delay in evaluation alleged: $20.5M verdict
Legal Review & Commentary
Delay in evaluation alleged: $20.5M verdict
By Radha V. Bachman, Esq.
Buchanan Ingersoll & Rooney PC
Tampa, FL
Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL
News: A pregnant woman contacted her doctor with complaints of decreased fetal movement. He advised her to go to the triage outpatient obstetrical department, where she was placed on a fetal heart monitor and underwent a biophysical profile. The monitor showed a nonreactive fetal heart rate pattern, and the profile confirmed that the fetus was in distress. The on-call physician saw the woman and ordered that labor be induced. Pitocin was administered. There was a significant drop in the fetal heart rate followed by an ominous sinusoidal pattern, demonstrating that the fetus was in severe distress. The obstetrician proceeded with an emergency cesarean. The baby was born with severe perinatal asphyxia and resultant brain damage. The baby was later diagnosed with cerebral palsy, blindness, and is relegated to a wheelchair. A jury returned a verdict for the plaintiffs of $20.5 million.
Background: A pregnant woman, three weeks short of her due date, contacted her physician with complaints of decreased fetal movement. Her physician advised her to go to the outpatient obstetrical department triage. She arrived at the hospital at 2:35 p.m. and was placed on a fetal heart monitor. The monitor showed a nonreactive fetal heart rate pattern that had no variability, which often indicates a lack of oxygen to the fetus.
The woman remained on the fetal monitor for the next two hours, when the on-call obstetrician ordered a biophysical profile, which would have shown if there was a lack of oxygen to the fetus. The test showed further abnormalities and confirmed that the fetus was distressed. The on-call physician finally saw the patient at 5:15 p.m. and ordered the nurse to induce labor. The nurse administered the drug Pitocin at 6:10 p.m. as ordered. However, the physician later alleged that he was not using the drug to induce labor, but rather to conduct a contraction stress test to see if the fetus could tolerate labor. The woman was removed from the fetal monitor for a period of 15 minutes during which time she used the bathroom while continuing the administration of the drug. Upon reconnection to the monitor, it was determined that the drug had caused a dramatic drop in the fetal heart rate from 130 to 70 beats per minute, followed by an ominous sinusoidal pattern, which indicated that the baby was in severe distress.
The physician proceeded with an emergency cesarean. Around 7 p.m., the baby was born suffering from severe perinatal asphyxia and was resuscitated after 10 minutes, having suffered meconium aspiration. The baby initially displayed APGAR scores of zero. The baby suffered resultant brain damage and was later diagnosed with cerebral palsy. The baby was left severely mentally disabled, blind, and relegated to a wheelchair. Discharged three weeks later, the baby underwent multiple surgeries and was under the care of a neurologist, a gastroenterologist, and an orthopedic surgeon.
The parents of the baby brought a suit against the hospital and the physician for medical malpractice. Counsel for the plaintiffs alleged that the physician was negligent in his delay in the evaluation of the baby and the administration of the biophysical profile. They alleged that he also was negligent for inducing labor when it was apparent that Pitocin could further harm the fetus. The main issue in the case, as described by both sides in a joint pretrial memorandum, was whether a cesarean should have been performed earlier.
The plaintiffs' maternal fetal medicine expert and neonatology expert alleged that the fetus suffered from a fetal maternal hemorrhage causing the fetal blood to enter the mother's circulation, which is why the fetal heart rate showed a nonreactive pattern and a decrease in fetal movement. The expert contended that this hemorrhage continued throughout the 4½ hours that the mother was hospitalized, and the already diminished fetal oxygen was worsened by the induction of labor.
The defendants denied the allegations. Their experts alleged that it was the hemorrhage that caused the birth defects, and not any negligence on the part of the defendants. Experts for the defendants further contended that the physician appropriately requested a biophysical test, a contraction stress test with the use of Pitocin, and that he properly performed an emergency cesarean upon the sharp decline in the baby's heart rate.
The plaintiffs sought an $11 million life care plan for the 24-hour care of the baby, upgrades to his motorized wheelchair, special-needs van transportation, and home modifications. They also sought $1 million to $3 million in future lost earning capacity on behalf of their son and a nonquantified amount for past and future pain and suffering. The jury returned a verdict for the plaintiff in the amount of $20.5 million.
What this means to you: This woman was three weeks from term. Whenever possible, all efforts are made to assist the pregnancy to go to full term to provide the fetus a better chance to delivery with as little risk of complications as possible. Under these circumstances, a fetus three weeks from term has a much better chance of survival. When one weighs the risks of delivery at 37 weeks against complications from fetal distress from lack of oxygen, the risk of delivery at 37 weeks is probably much less and may even prove to be beneficial to mother and child.
However, in this case there is a fetus arriving at the hospital in distress. The lack of oxygen should have indicated to the physician that an emergency cesarean was necessary at that time. The timeline in this scenario reflects that the woman arrived at the hospital at 2:35 p.m. and was finally seen by the physician at 5:15 p.m., almost three hours later. The emergency cesarean was not done until 7 p.m., four hours and 25 minutes after arrival. From the time of arrival until the delivery, the fetal monitoring, by whatever method or test used, was reflecting distress to varying degrees. During this period, one wonders why the physician elected to use time to conduct a contraction stress test. When a fetus is in distress in a mother who is not in labor, one wonders why the physician would entertain labor as the safest and most suitable method of delivery.
The facts also reflect that the mother hemorrhaging may or may not have affected the fetus. The question is, had the emergency cesarean been done soon after the mother arrived at the hospital, would the hemorrhaging or alleged fetal complications from the hemorrhaging have been prevented or have been less severe?
Upon admission, the fetal monitoring tracing showed a nonreactive fetal heart rate pattern that had no variability, which often indicates oxygen deprivation. Recognition of fetal distress from lack of oxygen is a medical emergency. The jury must have taken into consideration why, in the face of a fetus showing distress, there was a delay in intervening on a more urgent basis.
When events similar to this occur in other facilities, the risk manager at the facility should refer the case to the obstetrical department for a peer review evaluation. In addition, with such a significant untoward outcome, an investigation in anticipation of litigation, and to comply with state reporting requirement and investigation under the guidance of defense attorney, should be immediately undertaken. If primary insurance is in place, the carrier should be put on notice as well. Notice to the excess carrier should be made in accordance with the policy trigger. The file should be sent to an obstetrician not affiliated in any way with the hospital to give an unbiased review of the care rendered in this particular situation. This review may be considered to be an expert witness review or a review for risk management quality improvement activities, at the direction of defense counsel.
Risk management should undertake a review of the obstetrician's medical staff file and quality assurance file to determine insurance limits, education and experience and history of claims, especially those that might show a pattern of like situations. A review of the medical record coding of this particular physician's records over the previous two years may shed additional light on previous practice patterns and prepare the hospital for mounting a defense to a claim. Depending on what is identified when reviewing the physician's medical staff record and medical record coding, the risk manager should work with the obstetrics department chair and the medical director to analyze the information with the goal to prevent a recurrence of a situation and untoward outcome similar to that which has occurred in this case.
Additionally, risk management should interview all staff who were in involved in the care of this patient in a timely manner. One aspect that should be explored is whether the patient care staff were concerned about the lag time to undertake the cesarean in view of the results of the fetal heart monitoring and other tests. If so, the risk manager should address this in emphasizing support of staff and education of using the chain of communication up the ladder of nursing, administration, and medical staff. If all else fails, risk management should be called to assist in necessary communication with the family and other third parties and timely intervention.
Reference
Case No. 03 CV 2663, Court of Common Pleas of Penn- sylvania, 45th Judicial District, Lackawanna County.
A pregnant woman contacted her doctor with complaints of decreased fetal movement. He advised her to go to the triage outpatient obstetrical department, where she was placed on a fetal heart monitor and underwent a biophysical profile. The monitor showed a nonreactive fetal heart rate pattern, and the profile confirmed that the fetus was in distress.Subscribe Now for Access
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