Verdict of $8.48 Million - Delay in Recognition of Fetal Distress/Severe Brain Injury/Lack of Oxygen

A 28 year old woman became pregnant in 2018. She received good pre-natal care with her regular physician. All evaluations, laboratory, and imaging studies indicated a normal, healthy fetus. At about 8 months the regular physician referred her to a board certified OBGYN for continued routine pre-natal care and eventual delivery. The due date fell close to Thanksgiving.

The day before Thanksgiving the mother had her last pre-natal visit with the OBGYN. She was by then just 2 days past her estimated due date. There was at that time some concern as to whether the fetus had been moving less recently. Mother was told to present that day to the delivery hospital for an abdominal ultrasound and electronic fetal monitoring. The ultrasound showed a healthy, normal fetus but somewhat diminished amniotic fluid within the uterus. Low amniotic which would be an indication to deliver the fetus in the next day or so. However the mother's cervix had not yet changed [or ripened] to indicate the approach of labor. Since she was at term anyway, medication was administered to ripen the cervix to hasten the onset of labor. After that occurred, Pitocin was given to induce or augment the labor. These are common steps to take when delivery is indicated but immediate C/section is not necessary. Often labor will start and progress to allow a, safe and normal vaginal delivery in this process and thus avoid a c/section.

This plan is common and often very successful. However, the standard of care requires that the well-being of the fetus be continuously assessed during the labor. That is done by applying an electronic fetal heart monitor to the mothers swollen belly. It records the heart rate of the fetus [and the mother], the presence, frequency and duration of the uterine contractions and the fetal heart's response to the contractions. More information for fetal assessment can be obtained by applying the electronic fetal heart rate monitor directly to the fetal scalp [if the fetal head is low enough in the pelvis to reach]. Additional information regarding the contractions [their intensity, frequency and duration] can also be augmented by the application of an intrauterine pressure catheter [IUGR].

All of these steps to assure a safe vaginal delivery for mom and baby are useless if the nurses are either under educated, unskilled, or too busy to adequately monitor the labor and recognize patterns in the fetal heart monitor tracing suggesting that the fetus is not tolerating the labor well. Specifically the nurses should be able to recognize and respond to drops [decelerations] in the fetal heart rate, their relationship to the contractions, the duration and depth of those drops and their likely significance. Nurses should also recognize and assess the presence or absence of adequate increases in the fetal heart rate and their frequency and duration [accelerations]. Moreover, nurses monitoring labor should assess for the variability of the fetal heart rate [its up and down pattern in short periods of time].

The problem here, and one we see all the time, is that the nurses aren't adequately trained in understanding fetal monitoring and/or too busy with their other duties to pay close skilled attention.

Here the fetus was showing signs of its intolerance to the stress of labor by lack of adequate accelerations, frequent decelerations of the fetal heart rate and in general diminished variability.

To add to the problems, the mother's regular obstetrician was off for Thanksgiving [when mother was in labor and the fetus in distress] The back-up obstetrician was unaware of his duties with this patient that morning and busy with his own patients. The nurse did not inform him of the true fetal status as indicated by the monitor strips. The fetus was eventually delivered by emergency c/section clinically dead; i.e., pale, not breathing, not moving, and with no heartbeat. Lab and imaging tests showed that it was severely asphyxiated. She was transferred to Children's Hospital for brain cooling, seizure control and medical management. A brain MRI showed clear evidence of damage caused by lack of adequate blood flow and oxygen during labor.

Today the 2 1/2 year old girl suffers from spastic cerebral palsy affecting her 4 limbs, a seizure disorder, visual impairment, severe intellectual delay. She cannot take oral nutrition but instead must be fed overnight with special formula given to her by a tube placed into her stomach. Her mother provides 24 hour a day care and monitoring.

After 18 months of litigation, the case was settled by a mediator for $8.4 million dollars.