Failure to Recognize Fetal Distress Resulting in Cerebral Palsy

Filed under Birth Injury, Cerebral Palsy

The Townsend Case

On March 29, 1998, a woman that was 40-weeks pregnant entered a tertiary hospital in labor pain at 7:50 am and was placed on a fetal heart rate monitor. Around 9:15 am, the fetal heart rate monitor showed a non-reassuring tracing. A non-reassuring tracing is an indication that the baby may be in distress and should have prompted the nurses to have a heightened sense of scrutiny for the type of event which ultimately occurred. Instead, through the entire labor period, the nurses failed to appreciate this non-reassuring tracing and failed to act on it by notifying a physician. This was the first breach in the standard of care.

Then, at approximately 12:11 p.m., the fetal heart monitor showed a complete loss of the fetal heartbeat. It took 6-minutes for the nurse caring for mom to even notice this event. This was a breach in the standard of care. When she finally did, instead of notifying a physician, the nurse attempted to adjust the monitor for another 6-minutes until 12:23. The nurse also failed to perform other nursing interventions required in this emergent situation such as providing mom with oxygen, turning mom on her left side, or opening her IV. These were breaches in the standard of care. Instead, at 12:23, which was then 12-minutes without having a fetal heartbeat, the nurse asked another nurse for help in adjusting the monitor. For another 3-4 minutes, these nurses adjusted the monitor to no avail and without performing any other emergent nursing interventions or notifying a physician. These were more breaches in the standard of care. It was not until 12:26 that a resident physician was finally paged; however, by that time, it had been 15-minutes without a fetal heartbeat and, unfortunately, past the point of no return for the baby.

A resident then performed an AROM (broke the water) and placed a fetal scalp electrode that determined that the baby’s heart rate was 64 beats per minute (normal is about 140). The resident then ordered an emergency C-section. Prior to the C-section, the baby’s heart rate was recorded at 30 beats per minute. The baby was ultimately delivered at 12:42 p.m. with no heart beat and APGARS of 0/0/0/0/2 at 1, 5, 10, 15, and 20-minutes. The baby (girl) experienced seizures shortly after delivery and she remained in the NICU for over three weeks until she was discharged to home. The baby was diagnosed with birth asphyxia, shock lung, hypotension, poor urine output, and seizures.

The little girl was ultimately diagnosed with cerebral palsy and mental retardation. At the time of the lawsuit, she was 10-years old, in 5th grade, and attending a school for severely disabled children. Due to her quadriplegic spasticity, she has undergone multiple surgeries to release tendons in her legs and frequently receives physical therapy, speech therapy, cognitive therapy, and occupational therapy, both at school and at home. She uses a wheelchair, cannot control her bowels or bladder, and cannot be left alone. These conditions are permanent and could have been avoided with proper nursing care.

On behalf of the little girl, we filed suit against the hospital.

During discovery, we deposed the obstetrical nurses that cared for mom during her labor. These depositions confirmed that:

  • As is done in every hospital in America for every woman in the final stages of labor, the nurses at this hospital were responsible for monitoring the fetal heartbeat of a woman in the final stages of labor.
  • To assure that the fetal heartbeat would be seen constantly, there were monitor screens at bedside and at the nurses’ station and no nurse was permitted to have more than 2 patients.
  • For the four hours leading up the fetal heartbeat loss, the fetal heart rate tracings were charted by the nurses to have minimal variability, no accelerations, and occasional mild variable decelerations (all signs of a not reassuring tracing).
  • At some point late in the labor, the fetal heart monitor suddenly recorded that the baby’s heartbeat was completely lost on the monitor.
  • This is a situation requiring immediate attention because it could show insufficient oxygen to the baby.
  • Insufficient oxygen can cause death or brain damage to the baby, so every minute is crucial.
  • When the fetal heart monitor suddenly stops recording a baby’s heartbeat, the proper nursing interventions include adjusting the belt (in the event that the electronic signal was just lost), giving mom oxygen (to help oxygenate the baby), turning mom on her side (to help oxygenate the baby), and give mom IV fluids (to help oxygenate the baby).
  • The nursing interventions should be done within a minute or two of the loss of the fetal heartbeat.
  • The only nursing intervention taken in this case was to adjust the belt because the nurses assumed the best case scenario (i.e. that the baby’s heartbeat was lost because the monitor needed adjusted, not because the baby was getting insufficient oxygen).

Negligence:

At trial, an expert maternal fetal medicine specialist (an obstetrician who concentrates on high risk pregnancies) and an obstetrical nurse expert testified that they agreed with the nurses’ interpretation of the fetal heart rate tracing and that for hours, it showed minimal variability, no accelerations, and occasional mild variable decelerations. The experts then opined that since these are not indications of reassuring tracing, the nurses and doctors caring for mom should have had a heightened sense of scrutiny for the type of event which ultimately did occur at 12:11. The experts further opined that once the fetal rate was lost at 12:11, the nurses were negligent for not recognizing this for 6-minutes, for not performing any nursing interventions related to oxygenizing the baby, for assuming the best, and for waiting 16-minutes to summon a doctor.

To defend the nurses’ negligence, the hospital called a maternal fetal medicine specialist and obstetrical nurse expert that both testified that they re-read the fetal heart rate tracing prior to trial and that the plaintiff’s experts were wrong and the nurses themselves were wrong in how they interpreted the tracing in the hospital. Coincidentally, these experts testified that their re-read of the tracing showed a reassuring tracing with good variability, plenty of accelerations, and no variable decelerations; therefore, the nurses were incorrect when they charted hours of minimal variability, no accelerations, and occasional mild variable decelerations. These experts also testified that it was good medicine for a nurse to not recognize the fetal heart beat loss for 6-minutes, good medicine for the nurses to assume that the fetal heart beat loss was due to the monitor not working properly instead of a baby in desperate need of oxygen, good medicine for the nurses to not perform any nursing interventions related to oxygenizing the baby, and good medicine for the nurses to wait 16-minutes to summon a doctor. Note: On the witness stand at trial, the defendant nurses changed their deposition testimony that nursing interventions are required within a minute or two of a fetal heart beat loss. When shown their videotaped deposition testimony in front of the jury, the nurses outrageously claimed that they were either asked “trick questions” in their deposition or that they were “nervous” in their deposition.

Causation:

In addition to negligence, we were required to prove that the nurses’ negligence “caused” the baby’s injuries. To do this, we had expert testimony from a maternal fetal medicine specialist, a neonatologist (a pediatrician specialist that only treats newborns), and a pediatric neurologist (a specialist that treats kids with brain injuries). All of these specialists agreed that the baby suffered from “birth asphyxia” or lack of sufficient oxygen just prior to birth. In turn, birth asphyxia can cause hypoxic ischemic encephalopathy (“HIE”) which is cellular damage that occurs within the central nervous system (the brain and spinal cord) from inadequate oxygen. This is a known cause of cerebral palsy.

As further support for their testimony that the baby’s injuries were caused by birth asphyxia, all experts agreed that the well-accepted (and conservative) criteria required to define an acute intrapartum hypoxic event as sufficient to cause cerebral palsy were met in this case (e.g. low pH, early onset of encephalopathy, cerebral palsy of the spastic quadriplegic type, no evidence of other etiologies, a sentinel hypoxic event shortly before delivery, sustained bradycardia, Apgar scores of 0-3 beyond 5 minutes, onset of multisystem involvement within 72- hours of birth, etc.)

To argue that the baby’s cerebral palsy was caused by anything but birth asphyxia, the hospital called a pediatric neurologist and a placental pathologist to testify at trial. The pediatric neurologist, who admitted that he works for his own private company and testifies for doctors and hospital 98% of the time, testified that the baby’s cerebral palsy was caused, not by birth asphyxia, by some infection that was coincidentally never diagnosed, from meconium that was present during delivery, by seizures that occurred after delivery, or possibly from some pathological process in the umbilical cord. Notably, this expert could not state which of his theories caused the cerebral palsy; the only thing he claimed he could say with certainly was that the baby’s injuries were not caused by birth asphyxia or the result of hypoxic ischemic encephalopathy. Even more interesting, when confronted with the hospital’s own neonatologist’s diagnosis of “birth asphyxia” and records from the child’s treating pediatric neurologist at the Cerebral Palsy Clinic at Children’s Hospital whose diagnose was hypoxic ischemic encephalopathy, this expert claimed that these doctors were either wrong or misinformed.

The defense also called a placental pathologist that testified that she examined the microscopic placental pathology slides and that these microscopic slides indicated that “meconium vascular necrosis” damaged the umbilical cord. Meconium vascular necrosis is a breakdown in the cells of the umbilical cord (which provides oxygen and nutrients to the baby). On direct exam, this witness testified that meconium vascular necrosis was present for days and inferred that the baby’s injuries happened hours and even days before mom was even admitted to the hospital. On cross-examination however, this witness eventually testified that she had no idea when the injury happened and that it could have happened between 12:11 and the 12:42 when the baby was delivered.

Nonetheless, we called a different placental pathologist expert on rebuttal. This expert agreed with the defense expert’s “findings” but disagreed with what those findings indicated. This expert testified that the pathological findings merely explained the fetal heart beat drop-off at 12:11 (i.e. the ongoing meconium vascular necrosis eventually caused inadequate oxygen which caused the baby’s heart beat to become too low to record on the fetal heart monitor at 12:11). In other words, what caused the event at 12:11 was irrelevant; it was how the nurses delayed in reacting to the event that was relevant.

After two full weeks of trial, prior to closing arguments, we reached a 7-figure settlement.

The settlement proceeds were placed into a special needs trust that our firm helped establish. This special needs trust was created to ensure that the minor would receive the proper medical care that she will need over the course of her lifetime. It will also allow the settlement proceeds to be invested and grow over time all while court supervised.

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Publisher: Harry S. Cohen and Associates, P.C.