Birth injury results in brain damage and $14.5 million verdict from jury
News: The patient, a 36-year-old woman, was pregnant with her second child in 2003. Near the end of her second trimester, the patient went into labor three times and was admitted to a medical center for a total of 11 days, during which time her labor was stopped with medication and bed rest. However, six days after her third discharge, the patient’s water broke, and she again was admitted to the medical center. She requested a caesarian section, but the nurse and residents on call did not believe it necessary. The attending obstetrician confirmed that monitors showed the baby was healthy. This status did not last, and the baby went into distress, requiring an emergency caesarian section. The baby suffered a massive brain hemorrhage, resulting in permanent injuries. On behalf of herself and her baby, the patient brought suit against the attending obstetrician as well as the medical center, and she alleged that both were negligent and failed to fully inform the patient of the risks associated with fetal distress. The physician and medical center denied any wrongdoing. The jury found the physician and medical center jointly liable and awarded the patient $14.5 million in damages.
Background: In this matter, the patient was a 36-year-old woman who was pregnant with her second child in 2003. Her first pregnancy, 11 years prior, resulted in an emergency caesarian delivery at 32 weeks gestation. The patient’s second pregnancy took a similar course of events. During her second trimester, the patient went into labor three times beginning on March 20. She was admitted to a medical center on each occurrence, staying four days, one day, and six days, respectively. The medical center treated the patient with medication and bed rest, which stopped the labor temporarily each time. The patient was discharged for the third time on April 4. The patient consulted with her primary physician, and, given her history of pregnancy complications and early labor and delivery, the two discussed that she should have another caesarian section. On April 10 at 12:30 p.m., a mere six days after being discharged for the third labor incidence, the patient’s water broke, and she was admitted to the medical center.
After admission, the patient requested that her baby be delivered via caesarian section soon. However, the nurse and residents on call did not grant her request as they believed it was not necessary at the time. The attending obstetrician visited the patient at 5:30 p.m., and again the patient requested to have the baby delivered via caesarian section. After the obstetrician checked the fetal monitors, he told the patient that the baby was healthy and that a caesarian delivery was not necessary. The baby’s healthy status did not last though, as it later showed signs of distress. The patient did end up having an emergency caesarian section at 9 p.m., but by this time, the baby had suffered a massive brain hemorrhage. Evidence at trial showed that this hemorrhage occurred after 5:30 p.m. As a result of the hemorrhage, the child, age 11 at the time of the trial, suffers from cerebral palsy, cognitive delays, visual impairments, and other issues that require lifelong care.
The patient, on behalf of herself and her injured son, brought suit against the attending obstetrician and the medical center. The lawsuit alleged that the physician was negligent for delaying the delivery by failing to perform the caesarian section earlier, thus allowing for unnecessary time that allowed the baby to go into distress. Furthermore, the patient claimed that the hospital and the physician failed to inform her that there was a significant risk of a brain hemorrhage if the baby went into fetal distress. The physician and medical center defended on the basis that the baby was born premature, at just over 24 weeks into the pregnancy, and that nothing could have changed what occurred. Ultimately, the jury agreed with the patient and found the physician and medical center jointly liable for $14.5 million in damages: $8 million for the child’s future medical care, $5 million for pain and suffering, $1 million for the mother’s past medical care, and $500,000 for past economic losses.
What this means to you: Birth injuries, while uncommon, do occur despite best efforts of physicians and hospital staff, especially in cases of extreme prematurity. At 22 weeks, a fetus is not considered viable, but here, born at 24 weeks, the chance for survival was enough to allow this particular child to live with a significant amount of medical intervention. However, in this case, there was critical data available to the physician and staff that was not used to provide the safest delivery method for the mother and infant. If a medical professional deviates or fails to meet the standard of care, then medical malpractice likely has been committed, and the physician and hospital might be liable to the parents and/or injured child.
The primary issue becomes heavily factual, determining what the physician knew and did, along with what the physician should have known and should have done. Medical professionals must follow strict protocols in monitoring the child’s vital signs and must take all necessary precautions to help prevent injuries during birth. All obstetrics patients should be monitored electronically during delivery; there is external monitoring that can measure uterine contractions and the fetal heart rate in response to them. The hospital staff and physician did take the proper steps to monitor the child, but these steps were insufficient. In this case, during a prenatal visit, the patient’s primary physician had agreed that a caesarian section was necessary. The patient’s medical history should have played a more critical role in the staff and physician’s determination of how to treat the patient. With the knowledge that the patient had previous issues with her first pregnancy, the physician should have been on notice and proceeded with caution while dealing with a new pregnancy.
Another consideration should have been the risks involved in vaginal birth after caesarian section (VBACs). VBACs risk uterine rupture and require the consent of the mother. Even though the fetus was small, uterine contractions still can put a stress on the uterus. In this case, this additional risk was not discussed, and consent was not obtained.
The American Congress of Obstetricians and Gynecologists (ACOG) has established guidelines for physicians to follow during labor. Perinatal risk is high. Hospitals spend more money defending "bad-baby" claims than any other type of malpractice. Obstetricians and other physicians that deliver babies, such as family practice and general practitioners, face higher insurance costs to protect their careers from these claims. If a physician fails to follow ACOG guidelines and a hospital allows the medical staff to practice outside of these guidelines, both might be held responsible for an adverse outcome, as seen in this case.
If the mother has had prenatal care, the physician and hospital must make arrangements to have those records available at the time of delivery. These records should be reviewed by the physician for data that might indicate a higher risk during delivery, such as issues in a prior pregnancy. Additionally, keep in mind that residents are students of their specialty, and their opinions should be evaluated by the more experienced attending before agreeing with them, especially when the patient’s history was not known to the residents.
An important issue in this case relates to the fact that the physician did not fully inform the patient about her options and the risks associated with them. The patient requested a caesarian section early, but hospital staff and the physician believed the child was safe at that time. A patient’s preferences should be given weight, but the ultimate concern of the physician is guaranteeing a safe delivery for mother and child. Reducing risks is extremely important, and all parties should consider different options before settling on one choice. Physicians generally must inform patients of all the risks and effects of procedures to allow the patient to make an informed decision.
Moreover, physicians should consider not only having clear and detailed discussions with patients about the pros and cons of various procedures, but documenting those conversations. Often this documentation is largely accomplished in connection with obtaining a patient’s signature on a procedure consent form, but some physicians have a practice of writing out the various options on a sheet of paper during their communications with patients and then keeping that page in the file so that if ever an issue arises later, there is a written record of exactly what various procedures were discussed.
- Court of Common Pleas of Cuyahoga County, OH. Case No. CV-11-757131. June 25, 2014.
