Legal Review & Commentary: Failure to perform emergency C-section leads to $38.5 million verdict in Connecticut
Legal Review & Commentary
Failure to perform emergency C-section leads to $38.5 million verdict in Connecticut
By Jon T. Gatto, Esq., Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, Florida
News: A woman pregnant with twins delivered her first baby without incident, but then experienced complications as she was in the process of delivering the second baby. The second baby was experiencing cord prolapse, and his heart rate plummeted. The physician continued to attempt to deliver the second baby vaginally for 10 minutes, but she eventually called for a cesarean. Fifteen minutes later, the baby was born and was diagnosed with cerebral palsy. The baby's mother and family sued the physician and the hospital for medical malpractice, arguing that the physician should have attempted an emergency cesarean more quickly and that the hospital's nurses failed to speak up and advocate for one before the physician ultimately called for the procedure to begin. A jury returned a defense verdict in favor of the hospital, but it found the physician liable and awarded the plaintiffs $38.5 million.
Background: A woman who was 37 weeks pregnant with fraternal twins went into labor and was admitted to the hospital. The first twin, a girl, was delivered vaginally by forceps without injury. Shortly after the first baby was delivered, the physician prematurely ruptured the mother's membranes, and the second twin, a boy, developed a low fetal heart rate. The OB/GYN soon discovered that that the baby boy was experiencing cord prolapse, in which his umbilical cord was impeding blood flow to the brain. Instead of performing a "stat" emergency cesarean, though, the physician continued to try to deliver the second baby vaginally for an additional 10 minutes. She eventually did call for a cesarean, but the procedure took approximately 15 minutes from the moment it was called until the baby was delivered, at which point the baby boy had suffered 25 minutes of bradycardia and hypoxia.
Soon after birth, the baby boy was diagnosed with cerebral palsy. He spent the next month at the hospital for treatment of initial seizures and for diagnostic studies. He is a quadriplegic.
The mother, individually and on behalf of her son, sued the physician and the hospital for medical malpractice. She argued that once the complication was discovered, the physician should have delivered the second baby via emergency cesarean. She also claimed that once the cesarean was called for, it should have been performed on a "stat" basis, and that the physician's "meticulous" operation violated accepted standards of care. As for the hospital, the mother argued that its nurses failed to provide prompt and necessary support, failed to provide the physician with necessary instruments in a timely manner, and failed to speak up and advocate for a cesarean before the physician ultimately called for the procedure to begin.
At trial, the plaintiff presented the testimony of experts in economics, labor and delivery, life care planning, pediatric neurology, and OB/GYN. The pediatric neurology expert opined that all of the baby's injuries occurred as a result of the acute severe hypoxia suffered during the delivery due to the doctor's and nurses' negligence. This opinion was shared by the plaintiffs' labor and delivery nurse expert, who testified that the hospital's nursing staff failed to communicate the fetal heart rate on a minute-by-minute basis to the physician.
As for damages, the family sought $1 million for past medical expenses. They pointed out that the baby boy required feeding through a nasogastric tube and had undergone several hospitalizations thereafter for aspiration pneumonia, which was ongoing, and seizures. The baby also had a permanent G-J tube surgically implanted, which eventually led to an improvement in his respiratory status.
The family also sought damages for future care. The plaintiffs' life care rehabilitation expert testified that the boy requires 24-hour nursing care, as well as other significant medical, rehabilitative, and supportive care. The plaintiffs' economist estimated that the future cost of care would be approximately $27 million, which he based on the life care plan and the estimation that the boy would live to about 50 years of age.
And finally, the family sought an unspecified amount for the mother's emotional distress for having witnessed the injuries to her son and $2 million for future lost earnings, which was based on the assumption that the boy would have attained a college education.
In presenting these damages to the jury, the boy's father narrated a 14-minute video showing a day in the life of his son. The video showed how the boy is fed through his J tube and the manner in which he communicates with his family by utilizing devices such as toys with buttons and by laughing, smiling, or crying. The father talked about his son's enjoyment of roughhousing, watching television, and playing with his sister, particularly, a game they call "freeze dance," whereby the boy presses a button to stop music from playing and his sister stops dancing until he lets the button go.
Both defendants denied that they acted negligently. The physician, a Harvard graduate who had been practicing for 20 years and who had been sued only once before which such case was dismissed because the statute of limitations had expired contended that she reacted reasonably to the baby's low heart rate by performing a vaginal delivery, which was the fastest way to achieve delivery. She pointed out that because the cord prolapse was "occult" rather than "overt," her attempts at vaginal delivery were more reasonable. She further argued that nothing that she did caused the baby's injuries, as he had suffered from chronic hypoxia prior to the cord prolapse, which was evidenced by a placental condition called chorangiosis.
The physician also rebutted the plaintiff's expert witnesses by calling her own experts in obstetrics, placental pathology, and pediatric neurology. The obstetrics expert testified that the physician acted appropriately in all respects, pointing out that cord prolapses, especially occult prolapses, are rare and that occult prolapses are managed differently than overt prolapses. The placental pathology expert testified that infants are "rarely" normal where there is evidence of chorangiosis. And the pediatric neurology expert testified that there was pathological and clinical evidence of chronic hypoxia in utero and that the pathology evidence proved the duration of the chronic hypoxia in utero. The expert also testified that chronic hypoxia caused "global" encephalopathy and that there was a continuum of injury reflected by formation of cytokines. Finally, the physician's experts testified that even if the physician were negligent, the baby boy was expected to live only 20 not 50 years, which would reduce the family's claim of $27 million in future expenses by 60%.
The hospital defended the lawsuit by arguing that the physician was solely responsible for the delivery plan, that the nurses could not order a cesarean given that the physician was the only one who could make that determination, and that the nurses complied with the standard of care. The hospital presented evidence demonstrating that the nursing staff communicated the fetal heart rate to the physician by projecting the heart rate through speakers in the operating room.
Nearly three years after the lawsuit was filed, the case went to trial. The judge's jury instructions reportedly included a statement that if the jury found the physician to have acted negligently, the damages award should include compensation for pre-birth injuries. The jury did, in fact, find the physician to be liable for medical malpractice and awarded the plaintiffs $38.5 million $30 million to the family to cover past and future costs of caring for the boy, $7.5 million to compensate the boy for his suffering, and $1 million to the parents. The hospital was absolved from any liability.
The verdict is believed to be Connecticut's largest medical malpractice award ever, and perhaps even the largest personal injury verdict, surpassing a $36.5 million award in 2005 against a different hospital and obstetrician. The physician has threatened to appeal the verdict, which she believes is contrary to the evidence. The physician's insurance will cover only a "tiny" fraction of the award, leaving the verdict "essentially uncollectible," according to the physician's attorney.
What this means to you: "This case illustrates the substantial risk of the practice of obstetrics and the underlying rationale behind the incredible cost of malpractice insurance for OB practitioners," says Lynn Rosenblatt, CRRN, LHRM, risk manager at HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL. "The information provided indicates that the physician felt that she had acted in good faith, believing that her continued efforts to facilitate a vaginal delivery would in fact be safer and quicker than any delay that would result from executing a C-section."
The testimony of her defense experts did not support that assumption, however. The entirety of the defense was based on a presumption that the second twin had suffered from chronic hypoxia over the duration of the pregnancy as a result of a placental abnormality known as chorangiosis. This introduced a completely different set of considerations for the jury that ultimately was more serious than negligent delivery management.
Perinatal adverse outcomes are closely associated with chorangiosis, which is an abnormal formation of the placenta villi and is thought to be of high consequence in such abnormalities of delivery as nuchal cord and placental abruption. Nuchal cord refers to a situation where the cord wraps itself around the baby's neck or is not sufficiently long to allow for vaginal delivery. Also, chorangiosis is associated with abnormal cord development, where there is only one cord vessel, which predisposes the infant to severe congenital abnormalities.
In this case, the fetus became hypoxic when the membranes ruptured, causing the cord to prolapse and impede the flow of blood to the brain. In defense arguments, the physician advanced that the cord was an occult prolapse as opposed to an overt prolapse. Umbilical cord prolapse refers to an abnormal position of the cord in front of the fetal presenting part so that the fetus compresses the cord during labor, causing hypoxia. Occult prolapse occurs when the cord is contained within the uterus and overt prolapse is where it slips into the vagina. They are managed differently, but are obstetrical emergencies nonetheless, and the standard of care in a litigious world usually is an immediate cesarean.
In occult prolapse, the cord is compressed within the uterus and the fetal heart rate evidences severe bradycardia on uterine contraction and variable acieration between contractions. Changing the mother's position may relieve the pressure if, in fact, the hypoxia is not a result of a placental abnormality, such as single vessel or shortened cord.
In overt prolapse, the cord floats out into the vagina when the membranes rupture. This is more common with breech (feet first) presentations and transverse lie of the fetus across the mother's pelvis, but it also can occur with a nonengaged vertex presentation. Since these were fraternal twins, the second baby was on top of the first in a separate sack. After the first delivery, the physician ruptured the membranes but the infant may not have been engaged in the birthing position and the rupture would have been sufficient to create an overt prolapse.
It appears that the physician felt that she could manipulate the fetus to avoid cord compression, as she seemed to believe she was dealing with an occult prolapse. She continued her attempt to accomplish a vaginal delivery, but after a dangerously long interval she realized that a surgical delivery was the only option.
OB practice has evolved over many huge judgments such as this one into a defensive service. Hospitals frequently keep a surgical suite "ready" should such a situation occur. Surgeons and anesthesia are readily available to assist. Instruments are a mere "lay-out" away. Other supplies are kept in stock to assure immediate availability. Staff nurses on OB units are frequently cross-trained to "scrub in" at a moment's notice. OB staff frequently conduct "drills of mock sections against time" to maintain a rapid response momentum.
Some smaller health care facilities where supplementary help may not be available will not accept high-risk labor patients for those reasons. And make no excuses, multiple birth pregnancies are high risk. Twins are double the baby with longer labors, greater danger of fetal abnormalities, lower birth weight and probable premature delivery. In this case, the team did respond relatively quickly, and they did assure that the physician was aware of the decelerations in the fetal heart rate, as the monitor was audible in the delivery area.
It was the physician who made a major miscalculation. The situation deteriorated greatly over the 25 minutes from the time the hypoxia was first noted to the actual birth. If she had moved to cesarean immediately, the baby would have been delivered within 15 minutes, which may still have been a problem, but perhaps not as severe. As time passed, the reduction in oxygen to the brain compounded itself, so the effects of the last 10-15 minutes would have been greater than the initial 10 minutes when the physician was attempting vaginal delivery.
Another error in judgment was made by the nursing staff as they could have readied the OR suite when they realized the compromised situation to the baby that a possible cord prolapse can cause. While the staff needs an order from the physician to actually commence a cesarean, they could have initiated the setup without an order. No doubt there would be some expense to the hospital had the vaginal delivery been successful and the setup "wasted," but the cost would have been inconsequential in the grand scheme of things.
Had the room been made ready when the fetus first evidenced distress, the section would have been started and completed within the 25-minute window that it took to get to that point. If that had occurred, the outcome would most likely have been greatly improved.
Despite all of the above details regarding cord prolapse, the expert testimony focused on a very different causation. The opinions were heavily in favor of chronic uterine hypoxia due to chorangiosis and an abnormally developed placenta. The infant's retardation was attributed to global encephalopathy and a cascade of abnormalities as a result of long-standing oxygen deprivation.
In chorangiosis, the chorionic lining of the placenta contains an abnormal number of vascular channels. It is believed the cause of such abnormal findings is a direct result of long standing placental hypoperfusion or low-grade tissue hypoxia. Many maternal conditions contribute to abnormal placenta development such as pre-eclampsia/eclampsia, diabetes mellitus, drug ingestion, chronic pregnancy-related urinary tract infections, as well as several viral and bacterial infections such as rubella, cytomegalovirus, and syphilis.
In this case, there was no indication that the mother had any of the high-risk factors for chorangiosis. Additionally, there was no discussion of any evidence of fetal hypoxia during the last trimester of the pregnancy, when routine fetal heart monitoring and ultrasound would have been the standard of care for prenatal visits.
With a multiple gestational pregnancy, the placenta for both sacks frequently merge into a single unit. It would stand to reason if the male infant suffered from intrauterine distress over a substantial period prior to labor, then the infant girl would have as well. Also, chronic fetal hypoxia is associated with meconium staining of the amniotic fluid. In this case, the fluid at the time the membranes ruptured was clear, indicating an acute issue such as an overt prolapsed cord was the cause of the rapid deceleration of the heart rate.
From the narrative, it is evident that the physician and her insurer chose to take the case before a jury, which after reviewing the alternate diagnosis of chronic intrauterine hypoxia secondary to chorangiosis as opposed to a spontaneous prolapse of the cord, one would certainly wonder why. The instructions to the jury, which included compensation for pre-birth injuries, would indicate that the judge may have suspected the physician's medical negligence extended to the prenatal care as well.
The plaintiff's case revolved around management of labor and delivery issues, which was no doubt suspect, as an immediate cesarean may have prevented or reduced to a lesser degree the profound disability that the child had sustained. The defense that there was a clinically sound belief that the infant was suffering from a longer standing problem introduced to the jury the very real possibility that the obstetrician had been maleficent over the course of the prenatal period. Had she anticipated that she was dealing with an extremely high-risk pregnancy, a scheduled cesarean would have been the standard of care.
The saddest part of this story is that while the family got their day in court and received equable compensation for their undoubtedly tragic loss; the verdict is "essentially uncollectible." Had the physician admitted to a tactical error in judgment and focused on the prolapse as the source of the infant's issues, the case may have been settled in a mediation setting rather than before a jury. This would have allowed discussion among all parties (the parents, the physician, the hospital, and the insurers), as to how best to arrive at an attainable settlement such as some sort of annuity that would have assisted the parents in the child's long-term care.
Had the physician accepted the fact that she was faced with an emergency that she could not effectively handle and moved forward with the cesarean, the outcome could have been much different. A significant element of the standard of care is for the practitioner to know and appreciate the limitations of skill and circumstances. Without that insight, tragedy always is lurking around the corner.
Reference
- Case No. DN X05 FST CV-05-4005513 S, Stamford-Norwalk (CT) Superior Court.
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