Legal Review & Commentary: Excessively strong birth contractions lead to $3.75 million settlement
Legal Review & Commentary
Excessively strong birth contractions lead to $3.75 million settlement
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Philip Nash
Law Clerk
Kaufman Borgeest & Ryan
Garden City, NY
Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL
News: In 2007, a woman in labor was given oxytocin to help speed up her delivery and increase the frequency and intensity of her contractions. Hospital nurses continued to administer the drug as the labor continued. After 28 hours, the woman was taken for a caesarean section because the baby’s head was having difficulty descending into the birth canal. The baby boy was born with brain injuries, including cerebral palsy. The woman and her husband sued the hospital and claimed malpractice. The suit alleged the contractions brought on by the oxytocin caused the boy’s brain injuries and that the drug was administered even though hospital staff never determined if the contractions were too frequent and strong. The hospital settled with the family before trial for $3.75 million.
Background: A woman was in labor after an uneventful full-term pregnancy in 2007. After arriving at the hospital, the nursing staff administered oxytocin, a drug that is used to help women in labor by increasing the amount of contractions to decrease labor time. Although the frequency and intensity of the woman’s contractions increased, she did not give birth, as the baby had difficulty descending into the birth canal. The woman remained in labor for 28 hours after the drug was first administered. Eventually, she was taken for a caesarean section. The baby boy was born with severe brain injuries, including retardation and cerebral palsy.
The woman and her husband sued the hospital and claimed medical malpractice. The suit claimed that the hospital never checked if the woman’s naturally occurring contractions were frequent and strong enough before administering oxytocin. The parents also claimed that hospital employees continued to administer oxytocin despite contraction readings that indicated the excessive force of the contractions. The suit alleged that these oxytocin-induced contractions caused significant trauma to the baby’s head while the baby slowly descended into the birth canal. The couple also claimed a lack of informed consent since they never were warned of the possible adverse effects of the drug. They planned to offer evidence at trial that it would cost $6.3 million to care for the boy over the course of his lifetime.
Before the case could go to trial, the hospital settled with the parents for $3.75 million. Two million dollars will be paid immediately, with the additional $1.75 million invested and paid to the child in monthly installments over the next 55 years.
What this means to you: Situations such as this one are sad due to tragic untoward outcomes. In addition, they are a risk manager’s nightmare. Could this outcome have been prevented? We are left with many unanswered questions in this scenario that would be a part of the investigation conducted by risk management.
The facts presented indicate this woman had an uneventful, normal, full-term pregnancy and presented to the hospital in labor. Was her obstetrician called upon her presentation to the hospital? Was she admitted through the emergency department or through the regular admitting process by pre-admitting arrangements? If admitted through the regular admitting process, was her obstetrician called, and when? Was she examined by her obstetrician, and if so, when?
Because her labor wasn’t progressing, she was put on oxytocin to enhance the labor, but we aren’t told how long she had been in labor prior to the administration of oxytocin. Who made the decision this labor needed to be enhanced?
Oxytocin is not a drug to be used without clinical justification as the complications to the mother and the fetus can be significant. As with any medication given or ordered, the patient should be informed of the indication, dose, and side effects. Informed consent is a process between the patient and the physician. When the decision was made to administer oxytocin, the patient and husband should have been advised of the need for the drug, potential complications, and options/alternatives. Was the patient informed of these issues? If so, by whom? Is the requirement for informed consent by the obstetrician when giving oxytocin a part of the hospital’s policies and procedures?
These questions and others should be answered not only in a peer review of this unfortunate situation, but also by a root cause analysis that should encompass obstetrical medical and nursing staff. These answers will be important to risk management in addressing the loss control and prevention steps to prevent a recurrence of such an event. When a significant untoward outcome occurs, it is probable that a claim will be asserted; therefore, this investigation should be conducted under the direction of legal counsel. Depending on the laws of the state where the event occurred, the peer review and root cause analysis also should be conducted under direction of legal counsel. That is not to say the medical center intends to hide information or create a cover-up, but it is only to provide the guidance to conduct these investigations as provided by state law.
As a part of the disclosure process, many of these answers will be important to the family. A disclosure meeting with the family is a standard from The Joint Commission and a statutory requirement in many states. Risk managers should be familiar and knowledgeable regarding the disclosure process, regulations, and requirements in their states and facilities. Disclosure meetings should be facilitated by the risk manager. In the event the patient and family are not fluent in English, the risk manager should arrange for a simultaneous translator to facilitate the discussion during this meeting.
When a pregnant woman selects an obstetrician or family practice physician she is entering into a partnership that lasts 10 months or so, including the postpartum follow-up visits. She puts her full trust in the physician she has selected. When those nine prenatal months end in an unexpected and untoward outcome, for whatever reason, it is a tragedy. When a patient presents in labor, depending on the policy of the hospital, the patient’s obstetrician is called, the patient is examined by an OB nurse to verify the patient is in labor and, if so, is admitted. If it is “false labor,” the patient is sent home with instructions to return if the pains progress or the “water breaks.” In some instances, the patient is admitted before performing the exam. Either way, the obstetrician is called with the results of the examination, and when the patient is admitted, it is an expectation that the obstetrician will visit the patient and conduct an exam and status report to the patient. Some labors are long and protracted, while others are very quick to progress to delivery. After a nine-month relationship with her doctor, a woman expects her obstetrician, or a substitute to whom she has been introduced and knows, to be there for the delivery. In this case, because we are advised the fetus was delivered by cesarean section, do we know there was a doctor in the picture? Where was the obstetrician and OB nursing supervision during this scenario that lasted 24 hours plus?
Was this a situation in which the nurses recognized something was awry and notified the obstetrician, who did not respond or did not respond appropriately? If so, did nursing go up the chain of command to report these nonactions? Or was this a case in which the nurses did not recognize that the obstetrician should be called to examine the patient or the supervisor should be called to become involved? Because we have no information in this area, these are questions the investigation, peer review, and root cause analysis should address.
Many hospitals are turning to the use of hospitalists that include the use of obstetricians in that capacity on the labor and delivery (L&D) unit. Some large obstetrical groups are employing that same model to staff the OB L&D unit with one of the group during off office hours. If a hospital employs this model, the risk manager should be familiar with the contract from the beginning of the negotiations. The hospitalist can be an employee of the hospital, an employee of an independent contractor, or a contractor with a company that contracts with the hospital. In any scenario, the hospitalist is a member of the medical staff and beholden to comply with prevailing medical care standards and the hospital’s bylaws and medical staff rules.
From the information we are given, only the hospital was sued for medical malpractice. Was the physician sued, and did the physician settle before trial? One wonders how this situation could have gone on so long without a physician being involved. This case was settled before trial using a case and annuity payout. Use of an annuity provides for support for care for this child for the remainder of his life, regardless of the financial or other status of his parents. Use of an annuity in cases involving minors, especially those with longterm, significant injuries, is in the long term best interest of the actual injured party.
Reference
Case No. 06521 LACV071009, Iowa District Court.
News: In 2007, a woman in labor was given oxytocin to help speed up her delivery and increase the frequency and intensity of her contractions.Subscribe Now for Access
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