The Filer Case
Despite the medical standard of care requiring a doctor, during a vacuum extraction delivery, to discontinue the use of a vacuum after pulling the baby’s head 3 times with the vacuum or allowing 3 pop-offs (when the vacuum detaches from the baby’s head) of the baby’s head, the inexperienced doctor delivering baby Adam tried 12 pulls with the vacuum before attempting a forceps delivery, which was also unsuccessful. Following the unsuccessful forceps delivery, only then did the doctor proceed with a Cesarean section. The unnecessary trauma to the baby’s head during the failed vacuum attempts and forceps delivery caused Adam to suffer a perinatal stroke leading to lifetime cognitive and physical deficits.
Sarah and Alex Filer were members of the Amish community when Sarah became pregnant with their first child. One week past her due date, Sarah Filer went to an appointment at the practice where she had been receiving her prenatal care throughout her pregnancy. At that appointment, she was told to go to the hospital for an induction the following day, which Sarah did. She presented to the Labor and Delivery unit of the hospital at 7:15 a.m., and she was admitted to the hospital by the Defendant Dr. F, who saw Sarah because he was the hospital’s on-call obstetrician on duty at that time.
By 10:30 p.m., Sarah was fully dilated and started pushing. Sarah was connected to a fetal heart rate monitor, which measures the heart rate and rhythm of the baby (fetus). The fetal heart tracings became worrisome. Notations on the fetal heart tracings documented that Dr. F began attempts to deliver the baby, and in doing so, he made use of a vacuum.
While using a vacuum during delivery, the doctor can see the pressure on the vacuum and then guides the vacuum cup towards the baby’s head. The doctor then places the vacuum on the head of the baby and attempts to pull the baby down the vaginal canal to aid in the delivery.
At the time of this delivery, the medical standard of care when using a vacuum at delivery was that after placing the vacuum cup on the baby’s head with pressure, only 3 pulls of the baby’s head with the vacuum or 3 pop-offs (when the vacuum detaches from the baby’s head) of the baby’s head were allowed. After either of those scenarios occur, the use of a vacuum was to be discontinued.
However, Dr. F was given the vacuum by the nurses around 11:30 p.m., and while the nurses failed to document the amount of pulls and pressure, Dr. F testified in his deposition that with the assistance of the vacuum, he tried 12 pulls with the vacuum over the next 23-minute period, all unsuccessful at advancing the delivery. Dr. F then attempted a forceps delivery, which was also unsuccessful. At that point, he then proceeded with a C-section. The baby was not progressing at all with each vacuum attempt, not even 1 centimeter.
At birth, the nurses documented that the baby needed constant stimulation to cry and breathe. The baby also required oxygen at birth. Seizure activity was noted at about 24-hours post-delivery, which was thought to be caused by head bleeds. The baby suffered a perinatal stroke caused by the excessive vacuum attempts and now will live a life filled with cognitive and physical deficits.
Sarah and Alex Filer struggled with their involvement in the Amish community, because of the immense emphasis on physical strength and their child’s inability to participate as other Amish men would. Adam was disabled and could not find a role in the Amish community due to his significant impairment. Since Adam was educated in the Amish culture, his education ended after 8th grade, so he was ill equipped to enter a vocation using his education and intelligence, but he did not have the physical strength and ability to enter the typical Amish vocations. Therefore, Adam’s vocational prospects were limited. Sarah and Alex were already struggling with some disagreements they had with Amish doctrine, so in addition to that and considering the Amish community’s avoidance of lawsuits and their son’s limited prospects remaining in Amish culture, Sarah and Alex Filer made the difficult decision to leave the Amish community and bring a lawsuit.
We filed a lawsuit against the delivering obstetrician, the hospital, and the corporate entities for those parties. At the time we filed the lawsuit, Adam was 14 years old. In Pennsylvania, the statute of limitations tolls for minors, therefore, a minor can sue until the age of 20 (the age of majority + the 2-year statute of limitations.
In the lawsuit, we alleged that Dr. F was negligent in exerting 12 separate pulls of the vacuum on the fetal head, and then attempting a forceps delivery before ordering a C-section. He should have ordered a C-section well before even the first attempt to deliver the baby with a vacuum, given the signs that should have demonstrated to Dr. F that the baby needed to be delivered and was unlikely to be delivered vaginally. We used his testimony to assist in creating a trial exhibit that would show how many times he pulled on the baby’s head and the absurdity of continuing that to the extent he did. We had Dr. F put a mark on a copy of the fetal monitor strip every time he would have pulled on the vacuum. He put a mark on the strip after each contraction – 12 times in all. At trial, we also intended to show that at the time of this delivery, Dr. F had not yet sat for his board certification in obstetrics.
Additionally, we alleged that the experienced nurses who witnessed the 12 vacuum attempts should have known better than to allow that to continue and should have gone up the chain of command to stop the continuous failed vacuum attempts. It was this unnecessary trauma to the baby’s head that caused Adam to suffer the stroke.
This case was vigorously defended on negligence and the extent of damages. This case presented an excellent example of how Defendants in medical malpractice cases concede nothing. They filed expert reports from some very well qualified obstetrician expert witnesses. These expert reports gave us notice that these experts were going to testify at trial that 12 vacuum pulls may have been within the standard of care and the proscription of the amount of pulls allowed in a vacuum extraction is vague and indeterminant. Defendants’ experts were also going to argue at trial that Dr. F’s account of the delivery, as he explained it at the time of his deposition, may not have been accurate. Additionally, Defendants would claim at trial that Adam’s injury likely came from some source other than the excessive trauma he experienced at birth.
Jury trials have become extremely expensive. The biggest increased expense over the last decade or so has been the inflation of expert witness fess. Trials have also become more complex with both sides feeling the need to have more and more expert witnesses. Trials are also, of course, unpredictable. Therefore, more cases are being referred to private non-compulsory mediation, where a private mediator, paid for by both sides, tries to facilitate an out-of-court settlement. We agreed to proceed to this type of mediation where we were able to negotiate a multi-million dollar settlement, but this mediation did not occur until shortly before the scheduled jury trial.
By the time we were able to settle this case, Adam was 18 years old; and so the settlement went directly to him, rather than into a trust that would have been controlled by his parents and a trust officer from a bank. Fortunately, Adam’s family allowed us to place Adam’s settlement with a respected financial planner and whenever any money from the settlement is used, the financial planner, Adam and his family will all participate in the spending decisions.