The Allen Case
Two days past her due date, Mrs. Allen had an office visit with her obstetrician, Dr. Falk. A non-stress test was performed at that appointment. That test should have resulted in immediate follow-up testing, but instead, follow-up testing was scheduled to be done 3 days later. Several hours after the appointment, Mrs. Allen was not feeling any fetal movement, so she went to the Emergency Department where fetal testing revealed a fetal demise.
On April 30, 2019, at 39 2/7 weeks gestation, Mrs. Allen was seen by an obstetrician, who noted occasional cramping. The plan was to follow up in 1 week and do a Biophysical Profile (BPP)/Nonstress Test (NST). On that visit, Mrs. Allen underwent a non-stress test that was noted to have absent accelerations and to be nonreactive. The biophysical profile was 8/8, which is considered normal.
Mrs. Allen’s next and final office visit was one week later on Tuesday, May 7, 2019 at 40 2/7 weeks gestation with Dr. Falk around 11:00 a.m. Mrs. Allen underwent a non-stress test, which Dr. Falk commented on, stating that she “did not have a warm and good feeling” about the pregnancy. Dr. Falk noted frequent but slowed down fetal movement and frequent Braxton-Hicks contractions. Dr. Falk suggested an induction for that weekend. She stripped the membranes to initiate labor and Mrs. Allen agreed to do a BPP on Friday and discuss induction if the membrane stripping failed to work. Mrs. Allen left the office with a plan to follow up on Friday.
Later that afternoon, around 2:00 p.m. on May 7, 2019, Mrs. Allen presented to the Hospital due to decreased fetal movement. The fetal heart tracing at 2:32 p.m. showed only the maternal heart rate. The nurse noted that she was unable to obtain the fetal heart rate at 2:38 p.m. and the doctor was notified. The doctor performed a bedside ultrasound around 2:45 p.m. and a fetal demise was diagnosed. Mrs. Allen was then admitted and underwent an induction. She delivered a non-viable baby girl the next morning.
The opportunity was lost to deliver Mrs. Allen’s baby before the fetal demise because Dr. Falk negligently failed to perform indicated fetal testing. We now know that when Mrs. Allen was seen in Dr. Falk’s office, Mrs. Allen’s baby was viable and capable of having been delivered.
We obtained an expert opinion from a Yale-trained, well-experienced obstetrician, who opined that Dr. Falk should have extended Mrs. Allen’s non-stress test to check for decelerations, ordered an ultrasound to focus on the amniotic fluid index, ordered a biophysical profile, and/or ordered a contraction stress test since Mrs. Allen was at 40 weeks gestation. Dr. Falk should have recommended further testing of the baby, which likely would have determined that the non-stress test was nonreactive.
We were prepared for the Defendants to have a qualified expert opine that Dr. Falk did everything correctly and interpreted every test in accordance with the standard of care, but the fetal demise was a product of dumb luck that nobody could possibly have predicted. However, we recognized that this would be a hard sell under the circumstances. Our expert witness intended to point out precisely the aspects of fetal monitoring that were missed which should have been followed up. The Defense would be left to argue that the state of medical science had not advanced to the point of even having a clue of a potential impending fetal demise that was mere hours from occurring. This strains the reality of fetal surveillance. The fetal demise was the best evidence to show that our expert’s opinion on the fetal monitoring that should have been done is correct, and that the fetal monitoring was below the standard of care.
With all of this in mind, this was an extremely unusual case in that we reached a settlement agreement before a Complaint was filed. Usually, Defendants will not consider settlement until near the eve of trial, which typically takes 2-3 years from the time we sign up a client.
In this case, the firm who was defending the Hospital and the doctor was so inclined to reach a pre-Complaint settlement because of the long-standing relationship it has with our firm. They understood our willingness to take cases, such as this one, all the way through trial, and this significantly aided in reaching an early resolution. Our history of successfully litigating cases all the way through trial has garnered a reputation that puts Defense firms on notice of our ability and willingness to try a case. It is because of this reputation that we are often able to reach settlements prior to the time of trial that benefit our clients.
Following a mediation, the parties reached an agreement to settle the case for a substantial amount.