The McGinley Case
In this tragic case, an inexperienced obstetrician made careless decisions that led to a baby’s death. Crudely put, the doctor was trying to force a square peg down a round hole for hours all while ignoring continuing signs of fetal distress. Then, after hours of pushing and pushing with no progress, the doctor finally performed a pelvic exam which revealed a “very narrow pelvis”. Despite ongoing signs of fetal distress, a “very narrow pelvis”, and no progress after hours of pushing, incredibly, the doctor chose to have Mom continue to push. After that continued to fail, a non-emergency C-section was finally ordered. After the caregivers took their time getting Mom to the operating room, two different residents were each given turns at trying to pull the baby out but each failed (the baby’s head was “deeply impacted into the pelvis”). The baby was finally delivered by the attending (almost an hour after she found the “very narrow pelvis”) ; however, tragically, the baby was found to have suffered severe brain damage, two different brain bleeds, and had a displaced nose and cuts on his face. The baby, Patrick, was pronounced dead in the delivery room.
Laura McGinley (“Mom”) was a healthy 28 year old whose pregnancy was being managed by her experienced obstetrician. On November 7, when Mom was 33 and 3/7 weeks gestation, she experienced a spontaneous rupture of membranes at home. She sought care from the hospital nearest to her house that had an obstetrical department. She was seen shortly thereafter by her obstetrician. An ultrasound and vaginal exam confirmed that the water broke, so the obstetrician ordered steroids and antibiotics, and arranged for an ambulance to transfer Mom to a sister hospital that was better equipped to handle preterm deliveries (the sister hospital had a neonatology intensive care unit and also had maternal fetal medicine (“MFM”) specialists present (MFMs are obstetricians that have more advanced specialized training in handling high risk pregnancies and preterm labor).
Mom arrived at the specialized hospital shortly before noon. Although Mom was a high risk patient transferred to this hospital for specialized care by an MFM, no attending doctors saw and/or evaluated her for over 5 hours until after 5:00 pm when the Defendant obstetrician (who was not an MFM) began her shift as the “house” attending obstetrician. Unbeknownst to Mom, the Defendant obstetrician had only been managing labor patients and performing C-sections without any supervision from another attending obstetrician for roughly 3 months. Also unbeknownst to Mom, the Defendant obstetrician had only performed 3 or 4 C-sections, at most, without any supervision from another attending obstetrician.
At 7:30 pm, the Defendant obstetrician instructed Mom to start pushing. Over the next two hours, the fetus demonstrated signs of fetal compromise, cord compression, fetal distress, and also showed signs of a failure to progress. Up through and during this same period, while Mom was continually told to keep pushing, it went completely unrecognized that Mom’s pelvis was too small to vaginally deliver the baby (there were no notes describing a single vaginal/pelvic exam by any attending). This is known as cephalopelvic disproportion or CPD.
At 9:19 pm, after nearly two hours of continuous pushing, the Defendant obstetrician finally performed her first vaginal/pelvic exam and documented: “Pushing for past 2 hours with minimal progress, patient has a very narrow pelvis, now having late decelerations. Allowing fetal recovery with oxygen/patient on side – will attempt pushing with 1 more contraction; if no progress will proceed with low transverse cesarean section. ” (emphasis in original note).
Mom was then told to push four more times (not one more time as indicated in the note). Finally, reaching the obvious conclusion which should have been found hours earlier - that the baby will never fit - the Defendant obstetrician finally decided to order a C-section at 9:39 pm. ; however, since it was not a STAT C-section, Mom was not taken to the operating room until 9:48 pm, at which time it is undisputed that the baby was alive and had a normal heart beat.
In the operating a normal fetal heart beat of 142 was recorded around 10:00 pm. The incision was made at 10:07 pm. Despite the urgency of the situation, since it was a teaching hospital, the Defendant obstetrician decided to allow two different residents to try and deliver the baby; however; neither were successful because the baby’s head was “deeply impacted” into the pelvis from the continuous pushing. Ultimately, the Defendant obstetrician delivered the baby at 10:13 pm, almost an hour after her 9:19 pm note.
Upon delivery, the baby was limp, without a pulse, and completely lifeless. The Apgars were 0/0/0. Tragically, the baby was pronounced dead in the delivery room. It was recorded in the medical record that the baby had two nuchal cords (which are extremely common and rarely, if ever, cause harm). It was also recorded numerous times in the medical record that the nuchal cords were “loose”.
Subsequently, an autopsy was done at a sister hospital also owned by the Defendant hospital). The pathologist, employed by the hospital, found that the baby suffered two different types of brain damage, had brain bleeds, had abrasions on the nose, upper lip, and right eyelid, and had a displaced nose. Nonetheless, ignoring the obvious cause of death (from either brain damage caused by the baby’s head being continuously jammed against the pelvis for hours or a broken neck or a combination of the two), the hospital pathologist determined the official cause of death to be fetal asphyxia (lack of oxygen) caused by two “tight” nuchal cords.
As required by law, we opened up an Estate on behalf of the deceased baby with the parents named as “Co-Administrators. ” We then filed suit against the Defendant obstetrician, her employer (a practice group owned by the hospital), and the hospital.
Ultimately, we took extensive discovery which included taking the videotaped depositions of the Defendant obstetrician, three different obstetrical resident physicians involved in the care, an obstetrical nurse, the pathologist that performed the autopsy, and the MFM obstetrician that was the attending physician at the Defendant hospital prior the Defendant obstetrician’s involvement (although this doctor was the attending in charge of Mom’s care from arrival to roughly 5:00 pm, he never saw or examined the patient once).
Notably, we had to present approximately fourteen motions during the pendency of this case because the Defendants continuously tried to thwart our attempts at finding out the true facts of what happened. Below are a just a few examples of what we learned in discovery:
THE NURSE’S TESTIMONY
We deposed the obstetrical nurse that cared for Mom during her labor and delivery, and who was also present for the delivery. During her deposition, when the nurse was asked if she thought about what caused this baby’s death (after she recorded a normal heart beat in the operating room minutes before delivery), she testified she never formed any beliefs. This nurse also testified that she was reprimanded by the hospital for making Facebook posts about this stillbirth. Thereafter, we requested the hospital to produce all documents related to the Facebook posts and all documents related to any action taken by the hospital over the Facebook posts. Shortly thereafter, the hospital produced two emails that the nurse sent to her nurse manager about this incident days after the delivery (we previously requested all emails related to this stillbirth; up to this point, the hospital deceitfully claimed they didn’t have any). Notably, in one of these emails, the nurse describes the events in the operating room and describes, contrary to her deposition testimony, how she believed that the obstetricians broke the baby’s neck when they were delivering him: “3 times [the Defendant obstetrician] went under the table to push the baby up. This was bad. [The Defendant obstetrician] broke scrub three times to push his head up, I never saw this in 32 years. Heart tones were 140 before incision. It took 10-12 minutes to get him out, he was totally dead. I think the neck was broke. Not even sad, it’s numbing, not able to function. And [intrauterine fetal demise] is one thing, but this baby was alive prior to incision. ”
As a result of this email and the hospital’s refusal to produce it earlier, the Court took an extraordinary measure and permitted us to redepose the nurse. During her second deposition, the nurse described how she was blackballed by the hospital and medical staff after she made her thoughts known that she thought the baby’s neck was broken. She went on to describe how she was moved to a different department (even though she had 32 years experience as an obstetrical nurse) because the obstetrical doctors refused to work with her anymore. She also went on to describe how the hospital fired her shortly thereafter over a trumped up accusation that a pill count was off during one of her shifts (she testified that the hospital was looking for a reason to fire her after her email). Even more interesting, the hospital and pathologist looking in to the cause of death completely ignored the possibility that the baby’s neck was broken in the operating room (which would certainly explain how the baby had a normal heart beat just minutes prior to delivery).
LOOSE OR TIGHT NUCHAL CORDS?
Although seemingly obvious, one of the main issues in the case was: “What caused the baby’s death?” The pathologist - in what was a fabricated cause of death designed to defend the negligence - concluded that baby died from “tight” nuchal cords that asphyxiated the baby. We contended that not only is it well-known that tight nuchal cords do not cause that type of injury, but more importantly, that the nuchal cords were never “tight” to begin with. In fact, the first and only time the nuchal cords were noted to be “tight” was in the defendant obstetrician’s dictated operative note prepared after the parents requested an autopsy the next day (the pathologist relied solely on the dictated operative report for the factual history of her autopsy report – i. e. “tight” nuchal cords). Notably, a resident elsewhere in the chart twice documented that the nuchal cords were “loose”. Therefore, a seminal issue became whether the nuchal cords were “tight” or whether they were “loose” and again, the defendant only documented them as “tight” hours later after the parents requested an autopsy.
After an initial refusal by the hospital to produce an “Incident Report” that was prepared shortly after the death, on the eve of a court ruling on this issue, the hospital finally produced the Incident Report. Interestingly enough, there is a section titled, “DESCRIBE THE EVENT”. In that section, which is a factual rendition of what happened, inter alia, it is noted, “Neonate had 2 nuchal cords-loose. ” It was further established by deposition testimony that the only people who would have written this was either the defendant obstetrician (who recall later claimed the nuchal cords were “tight”) or the 2 residents involved. Notably, in their depositions, the two residents denied that they contributed to the incident report. The point being that the Defendant obstetrician who later claimed the nuchal cords were “tight” was the one documented “loose” in the Incident Report.
As discussed above, the autopsy was performed by a hospital pathologist who provided a nonsensical cause of death solely designed to defend the negligence (of trying to push a square peg down a round hole). In fact, the pathologist was completely dismissive of the severe brain damage, bruising on the head, molding of the head, two different brain bleeds, displaced nose, several cuts on the face, etc. Instead, the pathologist incredibly blamed the cause of death on “tight” nuchal cords. This is despite knowing that: (a) nuchal cords are extremely common (present in 30% of all deliveries) ; (b) nuchal cords rarely, rarely cause harm; and (3) the medical records (and an Incident Report) being replete with documentation that the nuchal cords were “loose”. Additionally, based on the medical records and deposition testimony, the baby was alive in the operating room minutes before the C-section took place and had a normal heart beat of 142; however, when the baby was delivered minutes later, he was completely lifeless, limp, blue, not breathing, and had Apgar scores of 0, 0, and 0 (which is contrary to how cord asphyxiation from would occur).
First, during the deposition of the pathologist, when she was shown roughly 20 enlarged, color photographs (many of which were close-up of the baby’s neck) and asked to point out the “deep ligature marks” and “bruising” that she described in her autopsy report from the alleged “tight” nuchal cords that caused the death, she couldn’t point to one. Instead, she tepidly tried to point to normal skin folds found on every baby’s neck (when asked to then point out the normal skin folds she would expect on a newborn, she begrudgingly pointed to the same thing). What was also very telling was the pathologist admitted that the hospital’s risk manager (i. e. the person that handles liability issues at the hospital) called her prior to the autopsy to discuss the incident. The pathologist then admitted that a lawsuit was on her mind when she wrote her autopsy report. The pathologist also had to admit that she is a frequent defense expert witness in malpractice cases and that she is intimately familiar with how to defend malpractice cases.
Furthermore, in the depositions of the three obstetrical doctors involved in the delivery, none of them understood how the baby had a normal heartbeat minutes before it was delivered completely lifeless. The deposition testimony also revealed that after the C-section incisions were made, a 2nd year resident first attempted to pull the baby out but could not, then a 3rd year resident attempted to pull the baby out but could not, then the attending finally was able to pull the baby out. The attending then documented in her operative note that the baby was “deeply impacted in the pelvis”, that the baby’s “head was very deep within the pelvis”, that there was “difficult extraction”, that the “head was not delivered immediately”, etc. Moreover, as discussed above, we had an email from the obstetrical nurse stating, “It took 10-12 minutes to get him out, he was totally dead. I think his neck was broken. ”
To that end, the autopsy report documented, “Photographs and x-rays were taken. ” Therefore, we asked for the x-rays which would likely show whether the nurse was correct (that the doctors broke the baby’s neck). The hospital refused to provide x-rays so we had to obtain a court order requiring the hospital to provide the x-rays. Incredibly, the hospital then responded, “[We] are not aware of any radiographic images. ” We then scheduled a motion asking the court to grant a “spoliation” charge to the jury (where evidence is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to that party). The day before the court was going to rule on our Motion, the hospital suddenly claimed they conveniently found the x-rays in a “resident’s file”; however, x-rays of the baby’s neck were not produced; despite it being standard practice to take them, despite findings of severe trauma, despite the unexpected death, and despite an experienced nurse that let management know she thought the baby’s neck was broken.
We had the case reviewed by: (1) an extremely experienced obstetrician who not only has a clinical practices but is a faculty member at an Ivy League institution; (2) a nationally known forensic pediatric pathologist; and (3) a forensic neuropathologist that worked for the Medical Examiner’s Office. The experts were extremely critical of the care provided, opined that the baby died from severe head trauma and/or a broken neck, and also opined that there were clear efforts by the Defendants and the pathologist to cover-up the true facts of what had occurred. Conversely, the Defendants hired an obstetrician (who is a known “professional” expert witness that will defend any case) and a pathologist to give opinions that the care was appropriate and had nothing to do with the baby’s death.
Roughly one week before the scheduled jury trial, the case settled for a very substantial amount. In fact, we were able to obtain a settlement amount that is 3-4 times what is generally considered a “typical” settlement amount obtained in stillborn cases.