Birth Injuries

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CASE: Fetal Monitoring

FACTS: This is a medical malpractice claim in which the decedent suffered birth injuries resulting in her death at one month of age. The defendant obstetrician provided prenatal care during which he diagnosed the decedent’s mother as suffering from chronic hypertension and prescribed Atenolol as a treatment for that condition. The plaintiffs alleged that she was misdiagnosed; and that even if she had chronic hypertension, Atenolol is contraindicated during pregnancy.

A labor check performed on the morning the labor commenced revealed a “non-reactive” fetal heart rate tracing. The defendant obstetrician and hospital inappropriately attributed the non- reactivity to the Atenolol, which had been inappropriately prescribed for the misdiagnosed condition, and treated the labor and delivery as being low risk.

During labor and delivery, a trainee nurse managed most of the care with little supervision. There was evidence that the defendants failed to comply with their own protocol regarding the frequency and manner of assessment of a laboring patient. Despite evidence of fetal distress, including bradycardia and loss if variability, the defendants failed to continuously monitor the fetus, apply a fetal scalp electrode, or expedite her delivery.

DEFENSE: The defendants contended that the decedent was born with a “nuchal arm” which could not have been anticipated and resulted in sudden and profound fetal asphyxia. The defendants also claimed lack of causation, lack of negligence, and a general denial.

INJURIES: The plaintiff’s decedent was born with APGAR scores of 1, 2, and 3 at 1, 5, and 10 minutes of age. She died at one month of age as a result of her neurologic injuries, which included hypoxic ischemic encephalopathy, edematous brain injury, seizures, multi-organ injury, and enormous physical and emotional pain and suffering.

SPECIAL DAMAGES: Medical bills: $177,586.89. Lost earning capacity was estimated at: $392,677.00. Loss of enjoyment of life, loss of familial relationship, and negligent infliction of emotional distress were also incurred.

SETTLEMENT: The parties agreed to settle for a confidential amount.

PLAINTIFF’S COUNSEL: Randolph J. Reis, Esquire (Reis Law, PLLC)

NAMES/COUNTY: Anonymous v. Anonymous

CASE: Fetal Ultrasound / Shoulder Dystocia

FACTS:The minor plaintiff weighed 11 lbs. 7 oz. at birth. His mother had previously delivered two large babies, one at 36.5 weeks weighing 8 lbs. 5 oz., and the other at 38 weeks weighing 9 lbs. 8 oz. The second of the prior deliveries was complicated by a failure of the shoulders to deliver on the first attempt. As a result of concerns about macrosomia and the risk of shoulder dystocia, the treating obstetrical care providers ordered three ultrasounds for estimated fetal weight (EFW).

The defendant radiologist interpreted and reported on the ultrasounds for EFW taken at 34 and 40 weeks. Although the 34th week ultrasound placed the minor plaintiff in the 95th percentile for fetal weight, that fact was not included in the defendant’s narrative report. The defendant indicated that this ultrasound showed “appropriate interval growth” from the last ultrasound and he substituted a new gestational age based on that ultrasound, nearly 2 weeks older than the true age.

The last ultrasound for EFW was taken 4 days prior to delivery. The defendant reported an estimated fetal weight that was more than 2 lbs. less than the actual birth weight.

The quality of the imaging was so poor that any estimate would have been unreliable. It was taken at the wrong level and failed to include the entire fetal abdomen, which would have made any EFW based on that imaging a gross under-estimate of actual fetal weight. The plaintiff’s radiology expert testified that the standard of care required the defendant to obtain more imaging on which an accurate EFW could be obtained, or to communicate with the clinicians that if another ultrasound was not possible that the EFW was approximately 11 lbs.

The obstetrical care providers relied on those estimates in the management of this delivery and were falsely reassured that the risk of shoulder dystocia was minimal. The delivering midwife indicated “surprise” at the plaintiff’s actual birth weight because the EFW from only 4 days earlier underestimated the birth weight by 2 lbs. The contemporaneous medical records repeatedly reference the defendant’s EFW by ultrasound and the fact that the plaintiff’s mother had previously delivered a healthy baby of 9.5 lbs.

During labor, after delivery of the head, severe shoulder dystocia was encountered. The plaintiff’s mother was placed in the McRoberts position and downward pressure, followed by suprapubic pressure were applied, unsuccessfully. She was then placed in the hands and knees position during which the posterior arm was delivered. After upward pressure on the head was applied the anterior arm and then the infant were delivered.

DEFENSE:General denial of liability. EFW by ultrasound is imprecise. The treating midwives care would not have changed even with an EFW of 11 lbs.

INJURIES:The minor plaintiff’s arm was flaccid at birth. He was diagnosed with Erb’s palsy. He suffers from mal-development of the glenohumeral joint, right arm weakness, glenoid dysplasia, atrophy of the infraspinatus and supraspinatus, winging of the scapula, weakness of the bicep muscle. He has significant impairment of arm strength, muscular endurance, and gross and fine motor skills. He has trouble running, demonstrates decreased postural stability, range of motion, balance and coordination.

SPECIAL DAMAGES: The plaintiff incurred medical bills totaling $43,527.55.

SETTLEMENT:The parties agreed to settle for a confidential amount.

PLAINTIFF’S COUNSEL:Randolph J. Reis, Esquire and Kimberly Kirkland, Esquire (Reis Law, PLLC)

NAMES/COUNTY:Anonymous v. Anonymous

CASE: Hyperstimulation / Fetal Hypoxia

FACTS: This is a medical negligence case relating to the obstetrical and nursing care provided to a woman during labor and delivery of her full-term baby. The defendant obstetrician and defendant nurse failed to investigate the cause of numerous non-reassuring signs of fetal well-being that were indicative of fetal hypoxia, resulting in devastating neurologic injury to the baby caused by lack of oxygen.

The plaintiff, having experienced an uncomplicated pregnancy, was admitted to the hospital for routine labor management and was placed on external electronic fetal monitoring (EFM). EFM strips, both those taken upon admission and when the plaintiff had presented in early labor the previous day, were reassuring and indicated no signs of fetal distress. During labor, the defendant nurse observed and palpated numerous prolonged contractions, which were indicative of hyperstimulation of the plaintiff’s uterus and increased uterine activity. The defendant obstetrician did nothing to investigate or remedy the plaintiff’s prolonged contractions, despite testimony that they represented a cause for concern. Both defendants failed to respond to non-reassuring signs of increased uterine activity, minimal (or decreased) fetal heart rate variability, and the combination of an absence of fetal heart rate accelerations and recurring variable decelerations. Moreover, the defendants ignored evidence of fetal tachycardia, although present up to the time of delivery.

Despite options for intrauterine resuscitation, the defendants chose to intervene only once by repositioning the plaintiff in an unsuccessful attempt to alleviate recurring variable fetal heart rate decelerations. Even faced with multiple continuing signs that should have raised concern, nothing more was done to assess fetal well-being or to expedite delivery.

DEFENSE: General denial.

INJURIES: After the plaintiff’s baby was born, it became obvious that he had suffered hypoxic ischemic encephalopathy, multi-organ injuries including renal injury, hematologic injury, and compromise of the endocrine system. In addition, he is deaf and suffers from cortical blindness.

SPECIAL DAMAGES: Medical bills total $2,101,578.89. Future damages, including present value of home and institutional care and lost earning capacity, were estimated to total between $5,284,383 and $13,949,308. Physical and emotional suffering and loss of enjoyment of life were also incurred.

SETTLEMENT: The parties agreed to settle for a confidential amount.

PLAINTIFF’S COUNSEL: Randolph J. Reis, Esquire (Reis Law, PLLC) and Karen S. Allen, Esquire (Law Office of Karen S. Allen, PC)

NAMES/COUNTY: Anonymous v. Anonymous

CASE: Brain Injury During Birth

FACTS: Plaintiff, mother of minor child, brought a medical malpractice claim alleging that Hospital #1 and it employees’ and Hospital #2 and it employees’ negligent care and treatment of her and her unborn baby (now known as child) resulted in catastrophic injuries to child. Specifically, Plaintiff alleged that Hospital #1 and it employees diagnose but negligently failed to treat her urinary tract infection. The untreated UTI caused Plaintiff to go int o premature labor five day later at 34 4/7 weeks gestation.  

Further, Plaintiff alleged that Hospital #2 and its employees mismanage Plaintiff’s premature labor and delivery, subjecting Child’s head to prolonged, uncontrolled contractions that caused severe head trauma, including Grade III intraventricular hemorrhage (IVH), severely elongated head, extreme molding, “towered skull”, “chignon effect,” bruising, skin breakdown, oozing, eschar, and abrasion in the right parietal area, circumferential swelling of the neck, swelling of the ears and eyes, and right-sided facial palsy. Child has a permanent circumferential scar around his head where no hair grows. Plaintiff alleged that Child’s avoidable premature and traumatic birth resulted in permanent and catastrophic brain damage.

DEFENSE: General denial.

INJURIES: Today, child is unable to communicate in any meaningful way, and can only ambulate short distances with the use of an assistive device and with great difficulty. Child will never be able to support himself financially and will require round-the-clock care and assistance for the remainder of his life. Child is and will always be completely dependent upon his parent and others to survive.

SPECIAL DAMAGES: Total medical expenses: $773, 694.77, Estimated future lost wages: $4.1 to $6.7 million, Life care costs: $8.1 million

SETTLEMENT: The parties agreed to settle for a confidential amount.

PLAINTIFF’S COUNSEL: Reis & Kirkland, PLLC and McKeen & Associates, PC

NAME/COUNTY: Anonymous v. Anonymous