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Legal Malpractice in Stillborn Case

Filed under Birth Injury, Stillbirth

The Scope Case

This interesting case was actually a legal malpractice case against another lawyer involving the stillborn birth of a baby. This was essentially “a case within a case.”

To be successful in a legal malpractice case, the law first required us to prove that the lawyer was negligent in handling the plaintiff’s case. In this case, the lawyer negligently named the improper plaintiff.

In any lawsuit involving the death of an individual, the rules of court require that an “estate” be opened on behalf of the deceased individual. The executor or administrator of the estate then brings the lawsuit on behalf of the deceased individual. The estate is then named as the plaintiff. Here, the negligent lawyer failed to open up an estate on behalf of the stillborn baby as required by law and, instead, only named the baby’s mother as the plaintiff. When the statute of limitations expired after two years, the defendants had the case dismissed for having the improper plaintiff.

Along with proof that the lawyer had been negligent, we had to successfully prove that had the lawyer not been negligent, the plaintiff would have been successful in this lawsuit.

The facts of the underlying lawsuit were as follows: a thirty-year old woman who had suffered two late first-term miscarriages, was a class “C” diabetic and was considered a high-risk pregnancy, became pregnant for the third time. Due to the risks associated with this pregnancy, the mother was referred to a local hospital devoted to high-risk pregnancies for her pre-natal care.

During the mother’s 37th week of gestation, her diabetes became unstable causing significant weight gain and edema, increasing risk to both mother and child. Therefore, once it was determined that the baby’s lungs were fully developed by ultrasound and amniocentesis, she was admitted to the hospital’s labor and delivery unit for induction where she underwent three days of failed induction by Prostin suppository and a Foley bulb. After the third failed attempt, despite the fact that the fetus was at risk for complications or death due to the mother’s unstable diabetes and fetal distress, the mother was discharged home.

A few days later, mom was re-admitted to the hospital’s labor and delivery unit for re-induction of labor. During this admission, mom’s sugar levels became increasingly unstable and she developed a low-grade fever, nausea and began vomiting. During this admission, the fetus also exhibited a pattern of ominous fetal heart tracings. Once the treating obstetricians determined that a Cesarean section was medically indicated, it was too late; a baby girl was delivered limp, without breaths and allegedly with a knot on the cord. Following a failed resuscitation, the baby girl was pronounced dead.

The plaintiffs’ experts contended that the obstetricians were negligent by failing to perform a Cesarean section immediately following the ominous fetal heart tracings demonstrating signs and symptoms of fetal compromise. Furthermore, the experts opined that a Cesarean section was medically indicated as early as during the three days of failed labor induction and that had the obstetricians performed a timely Cesarean section, the baby girl would likely have been born alive and without complications.

After Harry S. Cohen & Associates filed suit against the lawyer, a substantial settlement was reached with the lawyer’s malpractice insurance carrier.