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The information provided herein is excerpted from Zarin's Jury Verdict Reviews & Analysis; 10/08/2014; http://www.jvra.com/verdict_trak/article.aspx (Lehigh County, PA, 192233). This blog and the Zarin's information herein does not create, nor is intended to create, an attorney-client relationship between anyone.
$55,000,000 VERDICT – MEDICAL MALPRACTICE – OB/GYN – FAILURE TO RECOMMEND C-SECTION DURING FINAL FIVE HOURS OF 30 HOUR LABOR – NEGLIGENT CONTINUATION OF PITOCIN – STRONG CONTRACTIONS ALLEGEDLY CONTINUE TO COMPRESS UMBILICAL CORD – CEREBRAL PALSY ALLEGEDLY ASSOCIATED WITH FETAL ASPHYXIA.[Thanks to Zarin's Jury Verdict Review & Analysis; http://www.jvra.com/verdict_trak/10-08-2014]
In this medical malpractice action, the plaintiffs contended that the defendant ob/gyn and the defendant hospital negligently failed to recognize fetal hypoxia, discontinue Pitocin (a natural hormone that causes the uterus to contract), and pursue a C-section delivery despite continuing signs of fetal distress which the plaintiffs maintained were manifest during the final five hours of the 30 hour labor.
The plaintiffs contended that the prolonged hypoxic uterine environment rendered the infant unable to tolerate the shoulder dystocia (a rare emergency that can happen during the end of the second stage of labor: the baby's head is born, but one of the baby's shoulders becomes stuck) and associated cord compression experienced during the final minutes prior to delivery. As a result, the child was born in a very depressed state and suffered hypoxic-related cerebral palsy manifested by developmental delays that are primarily motor-related, and will permanently be unable to ambulate without assistance or the use of a wheelchair.
The child, who was slightly older than four years of age at the time of trial, did not suffer an extensive cognitive impairment, and will be fully aware of the nature of his plight.
The plaintiffs alleged a series of errors, commencing with the defendant ob/gyn’s failure to anticipate a relatively large infant. The plaintiffs contended that there were several factors that suggested the likelihood of cephalopelvic disproportion and a consequent difficult vaginal delivery. The mother was of small stature (when she conceived, she was five feet two inches tall and weighed slightly more than 90 pounds), and the father was relatively large (six feet four inches tall). The plaintiff mother had gained nearly 40 pounds, and an ultrasound obtained at 35 weeks reflected an estimated fetal weight of six and a-half pounds.
The defendants’ experts conceded that the baby’s weight would have been expected to increase by approximately a-half pound per week, raising the likelihood of an objectively large infant weighing as much as nine pounds by 40 weeks. The mother went into labor when she was one week overdue and the baby was, in fact, slightly less than nine pounds when born. Nonetheless, the defendant ob/gyn testified that he could not have anticipated such a large baby.
The evidence disclosed that serial ultrasounds had been conducted throughout the pregnancy because earlier testing earlier showed a slight elevation of the HGC hormone (Human Chorionic Gonadotropin (HGC) is a hormone that supports the normal development of an egg in a women's body), which could be associated with placental insufficiency and associated problems such as low birth weight. The plaintiff maintained that there was, in fact, no placental insufficiency as demonstrated by the normal ultrasounds and the fetal weights shown by ultrasound. The defense argued that the possibility of placental insufficiency, and some unrecognized event prior to labor and delivery, might explain the poor outcome here.
The mother went into labor at approximately 12:30 p.m. on November 3rd.
The plaintiffs maintained that the mother’s slow progress of labor, despite augmentation with Pitocin, was a further sign of an impending large baby. The plaintiffs argued that the likely size of the baby posed a contraindication to the continued administration of Pitocin, and that its continued use led to increasingly frequent and prolonged contractions which diminished the supply of oxygen to the fetus. Plaintiffs’ experts contended that uterine contractions are naturally associated with cord compression, and that the excessive uterine activity prompted by the Pitocin caused prolonged compression with diminished opportunity for re-oxygenation between contractions.
The plaintiffs maintained that fetal monitoring tracings showed progressively concerning signs of fetal distress, which, coupled with the dysfunctional labor, warranted a C-section by approximately 1:00 p.m. on November 4th. The mother continued to labor poorly, and, according to the plaintiffs, fetal monitoring became progressively less reassuring. The plaintiffs also maintained that the tracings, while non-reassuring, were not suggestive of outright asphyxiation until much later in the delivery, and that there were multiple opportunities to deliver the baby by C-section.
The defense contended that the fetal heart tracings were reassuring throughout the labor, and that there was never an indication for cesarean section delivery.
Approximately 40 minutes prior to delivery, the defendant ob/gyn determined that fetal monitoring was becoming sufficiently concerning to warrant intervention. His labor and delivery report described concerning repetitive severe decelerations. However, instead of pursuing a C-section, he attempted a vaginal delivery using a vacuum extractor. The ensuing delivery was difficult, and was complicated by shoulder dystocia and attendant cord compression. The records did not reflect the duration of the shoulder dystocia, though the defendant contended at trial that it was relatively brief.
The fetal heart tracings in the 15 to 20 minutes prior to delivery were markedly abnormal. The plaintiffs claimed that the tachycardia was a sign of fetal asphyxiation, while the defense maintained that it was simply a function of the stimulation provided by the vacuum extraction. The baby was delivered limp, blue, and not breathing when born. He had a one minute Apgar score of two. The other scores were three at five minutes, and seven at ten minutes. The plaintiffs contended that the child suffered asphyxia in the moments prior to birth and that the hypoxic insult caused cerebral palsy.
The defendants denied that there was any asphyxiation, and pointed to the infant’s umbilical cord blood pH level which did not meet the ACOG criteria for perinatal asphyxiation. ACOG requires satisfaction of four elements, including an umbilical cord blood pH level under 7.0. Although the umbilical sample here had an abnormally low pH (7.2), it was not low enough to satisfy ACOG criteria.
The plaintiffs argued that the value was spurious because it could not be reconciled with the subsequent measurement of the baby’s blood pH which was somehow more acidotic than the umbilical sample, even though the baby had received oxygen and fluids in the interim.
The plaintiffs noted satisfaction of the other ACOG criteria (criteria for child deliveries by the American Congress of Obstetricians and Gynecologists), including the presence of newborn seizures, abnormal liver enzymes, and MRI evidence of encephalopathy. The defendants maintained that the failure to satisfy all four of the required criteria negated the possibility of birth asphyxiation. The defense experts attributed the baby’s deteriorating blood pH values to a pneumothorax that had developed in the hours after birth. However, on cross-examination, the defense expert acknowledged that the blood sample had been drawn from the baby before any pneumothorax had developed.
The plaintiffs argued that the ACOG criteria were purposefully designed to be difficult to satisfy, and that their promulgation was akin to allowing baseball players on the field to call their own balls and strikes. The defendants argued that the criteria were matters of science. The plaintiffs maintained that the cerebral palsy will be associated with significant and permanent motor deficits. The plaintiffs contended that the child will only be able to walk a short distance even with assistive devices, and will often require a wheelchair.
The plaintiffs emphasized that the absence of cognitive impairments actually amplified the damage because the child will be fully aware of the extent of his impairments, effectively rendering him a prisoner in his own body. The plaintiffs’ economic proofs regarding cost of care and lost earning capacity ranged between $8 million and approximately $14 million.
Before the close of evidence, the parties entered into an undisclosed high/low agreement. As a result, the jury was not instructed to provide separate awards for economic and non-economic damages. Additionally, the jury was not instructed to provide a year by year award for special damages. Ordinarily, Pennsylvania law would require the court to mold the verdict by reducing the economic damages to their present value.
The jury found the defendant ob/gyn 50% negligent, the defendant hospital 50% negligent, and awarded the plaintiffs $55,000,000.
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