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Failure to Respond to Category II and Category III Fetal Monitor Strip to Perform a Timely C-Section

Filed under Birth Injury, Cerebral Palsy

Case Summary

It is not uncommon that when a baby incurs an injury from insufficient oxygen that the baby’s doctors will not clearly explain this to the mother. This is because these doctors seek to prevent the mother from investigating a potential lawsuit against the obstetrician and obstetrical hospital. The pediatricians will often maintain the code of silence so they are not drawn into a lawsuit and having to testify against the obstetrician and hospital with which they are professionally aligned.

Case Details

Joann Latsky, age 24, was pregnant with her first baby. She had an uneventful prenatal course, having been to all of her scheduled prenatal visits. On July 25, at 35 weeks gestation (5 weeks before her due date or “EDC”), Joann’s water broke (spontaneous rupture of membranes), so she went to the hospital. Joann was connected to a fetal monitor, the device that measures the fetus’ heart rate in relation to Mom’s contractions as well as Mom’s heart rate. In the initial hours at the hospital, the fetal heart monitor recorded a category I fetal heart monitor pattern, which indicated that the fetus was healthy and doing well.

Fetal heart monitor patterns are categorized as I, II or III. Category II means that the fetus is not getting optimal oxygen and that there should be some type of intervention to convert the category II tracing to a category I tracing. These interventions include giving mom oxygen, turning mom onto her side and lowering the medication that may be administered to enhance mom’s contractions. Category III tracings mean that the fetus is endangered from the lack of oxygen and typically has to be delivered as soon as possible with a c-section, so as to prevent the baby from incurring brain damage or other type of organ failure caused by insufficient oxygen.

Joann’s Category I fetal heart rate tracing became a category II tracing, and the nurses would periodically intervene with Oxygen by mask and turning the mom on her side; however, the category II tracing would not convert to a category I tracing. This category II tracing persisted for 14 hours, which is far too long to allow a fetus to go with insufficient oxygen. At some point a C-section should have been performed. Finally the category II tracing became a Category III tracing. There were persistent late decelerations (an ominous sign of insufficient oxygen to the fetus), prolonged decelerations (another ominous sign of insufficient oxygen) and a complete loss of variability (yet another sign of insufficient oxygen). It appeared from the medical record that the category III strip was not responded to at all by the caregivers, but finally, Joann was ordered to the operating room for a c-section. Once in the OR, however, the obstetrician attempted a forceps delivery rather than follow through with the intended c-section. The forceps delivery failed because the baby’s station (measurement of how high the baby is situated in the birth canal) was too high and the OB couldn’t get the forceps around the baby’s head. That delayed the c-section. Once the baby, Jeffery Latsky, was delivered, he was rushed to the hospital neonatal intensive care unit (NICU).

Jeffery remained at the hospital NICU for 3 weeks. He was diagnosed with hypoxic ischemic encephalopathy (HIE), which, by definition, is a brain injury from insufficient oxygen. Doctors also wrote in the medical record that Jeffery may have had a genetic disorder, even though the chances of that were proven to be less than 1 in a million. The suspected genetic disorder was eventually ruled out, leaving only the HIE as his diagnosis. Jeffery was transferred from the hospital to a transitional facility where it was believed that Jeffery would not survive due to the severity of his injury from lack of oxygen before birth. Miraculously, Jeffery did live and he went home with Joann after several weeks at the transitional center. When he was discharged to home, however, none of Joann’s doctors told her that Jeffery’s injury was caused by insufficient oxygen. Instead, she was told only about the genetic disorder, even though that suspected cause had been ruled out, and Joann knew nothing about the real cause of Jeffery’s brain injury.

It is not uncommon that when a baby incurs an injury from insufficient oxygen that the baby’s doctors will not clearly explain this to the mother. This is because these doctors seek to prevent the mother from investigating a potential lawsuit against the obstetrician and obstetrical hospital. The pediatricians will often maintain the code of silence so they are not drawn into a lawsuit and having to testify against the obstetrician and hospital with which they are professionally aligned.

Jeffery received therapy at home for his devastating injuries and Joann had him followed at a children’s hospital by neurologists and other medical specialists. Jeffrey was eventually diagnosed with cerebral palsy, a form of brain damage that is often caused by insufficient oxygen to the brain during the birthing process. Joann was not told of the diagnosis of HIE until Jeffery was 7 months old, at which time she came to Harry S. Cohen & Associates to investigate whether Jeffery’s brain injury would have been preventable had the doctors and nurses been more careful.

We filed a lawsuit against the obstetrician and hospital for the neglect is closely watching the fetal monitor strip and the negligent failure to perform an earlier c-section, which could have completely prevented Jeffery’s brain damage or “HIE.”

The doctor and hospital denied responsibility, which is just about always the case. The litigation proceeded for about 4 years, which is not an unusual amount of time before a trial is scheduled in these type cases.

These type cases are extremely difficult and expensive to try, but we have years and years of experience trying cases like them. At the trial, we had very well qualified expert witnesses testify in the specialties of obstetrics, pediatric neurology, neonatology, pediatric physiatry, pediatric neuroradiology, economics (for life-time wage loss) and life-care planning (for future anticipated medical and therapeutic expenses). The defendants also called expert witnesses in each of these specialties. The trial lasted 2 week. Following closing arguments and instructions by the judge to the jury, the jury went out to deliberate, and the parties then agreed on a $ multi-million settlement.

The entire recovery from this settlement was be placed in a Special Needs Trust, which is a financial instrument that enables children like Jeffrey Latsky to have his recovery safely invested and preserved for Jeffrey to utilize over the course of his lifetime. The banking fees for these Special Needs Trusts are restricted by law. Special Needs Trust also serve the purpose of preserving certain governmental benefits that might otherwise be lost without this type of Trust.