In this case, we represented a little girl named Harley Writt. Harley suffered a permanent should injury and neurological brain injury at birth. These injuries were the unnecessary result an obstetrician and obstetrical nurse using excessive traction and fundal pressure when confronted with a shoulder dystocia presentation during birth.
A shoulder dystocia presentation is when a baby’s head has been delivered, but the shoulders are stuck behind the mother’s pelvic bone and cannot be freed. This is considered an obstetrical emergency. If excessive force is applied by the physician pulling on the baby’s head (known as traction) or a nurse pushing on top of mom’s belly (known as fundal pressure) in an attempt to release the shoulder, the brachial plexus nerves in the baby’s shoulder can be stretched causing injury. It is one of the most basic tenets in medicine that excessive traction and/or fundal pressure should not be used when confronted with shoulder dystocia. In addition, the use of excessive traction and/or fundal pressure only serves to delay the delivery which can result in an asphyxial brain injury (lack of oxygen to the brain).
In this case, during Harley’s delivery, Harley’s head was delivered sometime between 11:33 and 11:39 pm. A shoulder dystocia diagnosis was then made by the obstetrician. Although contraindicated, in an attempt to squeeze the shoulder through the birth canal, the obstetrician negligently applied fundal pressure to mom’s belly. When that failed to work, the obstetrician then negligently ordered an obstetrical nurse to apply additional fundal pressure while he applied traction to Harley head. Negligently, the nurse followed the obstetrician’s order. In fact, it was revealed that one nurse was ordered to apply fundal pressure for so long that she eventually tired to the point where she could no longer continue to apply it. It was at that point that the obstetrician ordered a second nurse to take over and continue to apply more fundal pressure.
Eventually, with the use of this charted fundal pressure, the delivery of the rest of Harley was done at approximately 11:44 pm. As a result however, Harley’s brachial plexus nerves were stretched leaving her with nerve damage to the shoulder and arm. Moreover, Harley was stuck in the birth canal for such an extended period of time (5-11 minutes) that she also became asphyxiated - Apgar scores were 0, 0, and 5 at one, five, and ten minutes - which resulted in Harley suffering a neurological brain injury.
After having the medical records reviewed by experts, we initiated suit against the obstetrician and the Hospital (the nurses were employed by the Hospital). Thereafter, we took the depositions of the Defendant obstetrician, both obstetrical nurses involved in the delivery, and two nursing managers from the Hospital obstetrical department. We also took written discovery seeking numerous documents, including the Hospital’s past and current policies and protocol related to fundal pressure.
The written discovery revealed that the Hospital’s policies were very clear that excessive traction and fundal pressure should never be used when confronted with a shoulder dystocia presentation during birth. Moreover, two additional disturbing facts were revealed: First, we learned that the obstetrical nurses had no idea that fundal pressure was contraindicated in the presence of a shoulder dystocia presentation despite this being a basic tenet of obstetrical nursing medicine and despite a Hospital policy saying the same (even worse, the policy was kept in a manual literally feet from the delivery room; however, the nurses were not required to periodically review it). Second, after this incident, the Hospital changed a charting/documentation policy; in a section titled “How Do I Document a Shoulder Dystocia”, the new policy discusses potential lawsuits and now stated, “Never chart that fundal pressure was used to relieve the dystocia.”
In preparation of trial, we secured the opinion of an expert obstetrician who opined and later testified that the Defendant obstetrician was negligent for applying fundal pressure in the presence of shoulder dystocia and that the nurses were negligent for following his orders. We also had an obstetrical nurse expert/professor testify that the nurses were negligent for following the obstetrician’s orders and for failing to know basic obstetrical nursing medicine.
Additionally, we secured expert opinions from a pediatric neurologist/professor, a physiatrist/rehabilitation medicine specialist, and a pediatric neuropsychologist to comment on the shoulder and neurological brain injuries that Harley suffered and the long-term impact of the same. Further, we had a forensic economist expert/professor provide an expert report commenting on the economic impact that Harley’s injuries would have on her life as a future wage earner.
Despite no medical literature authorizing the use of fundal pressure with a shoulder dystocia presentation, as is typical in medical malpractice cases, the obstetrician’s lawyer was able to secure an opinion from an obstetrical “expert” – the Vice Chairman of large local hospital and Assistant Professor – defending the obstetrician and his use of fundal pressure with a shoulder dystocia presentation,. This “expert” opined that it was “reasonable to employ unconventional maneuvers” in this case and went so far as to essentially call the Defendant doctor a hero in his report.
The Hospital’s lawyer secured the opinion of an “expert” nurse who opined that the nurses were not negligent because they were simply following the doctor’s orders.
Additionally, at trial, both lawyers claimed that Harley never suffered a brain injury at birth, despite having their own experts examine and test Harley (the Defendants’ experts/testing effectively agreed with our own experts’ opinions and test results).
After one week of trial, the case settled for a substantial amount, with both the obstetrician and hospital contributing to the settlement.
Following the settlement, we helped Harley’s parents set up a Special Needs Trust for Harley with a local bank acting as Trustee. All of the settlement proceeds were deposited into the Trust where the funds will be invested and used solely for Harley’s benefit.
Two interesting issues to note from trial: First, when one of the delivery nurses was testifying at trial, she revealed for the first time that the Defendant obstetrician approached her after the delivery and asked her if she charted his use of fundal pressure. When questioned further, the nurse testified that although the doctor didn’t specifically verbalize it, she thought that the doctor was suggesting that she shouldn’t document his use of fundal pressure. Second, the Court granted the Defendants’ Motion in Limine (pretrial motion) wherein they asked the Court to preclude any mention or reference to the Hospital’s changed policies (i.e. that nurses should never chart fundal pressure, even if used, to avoid lawsuits). As a result, we were prohibited from informing the jury of the new policy.