The Kornbluth Case
Jennifer and Robert Kornbluth came to us when their son, Robbie, was 3 ½ years old. By that time, Robbie had been diagnosed with developmental delays and auditory neuropathy. They believed that Jennifer’s labor with Robbie was mismanaged and they were looking for answers about whether Robbie’s condition was preventable. They believed that the doctors were not forthcoming in response to their inquiries about the circumstances of Robbie’s birth
It is not unusual for parents of children injured at birth to come to us years after the delivery. Sometimes, personal psychological barriers prevent parents from accepting their child’s permanent condition. Other times, parents of impaired children are simply too busy in taking care of their kids to have the time to seek legal counsel concerning circumstances of the birth. Fortunately, in Pennsylvania and other states (but not all), the normal two-year statute of limitations to file a lawsuit concerning negligence is extended for a child until a child’s 20th birthday.
Hospitals are required to maintain a child’s medical records until the child reaches the age of majority. In this case, we sent to the birthing hospital for Jennifer’s pre-natal records and Robbie’s and Jennifer’s records of the labor leading to Robbie’s birth.
At 35 weeks of pregnancy (full term pregnancy is 37 to 40 weeks), Jennifer began to experience vomiting and diarrhea. Her husband, Robert, suffered the same symptoms earlier in the week. Jennifer’s PCP had Jennifer call the labor hospital hotline and Jennifer eventually spoke to one of the obstetricians in the group caring for her. The obstetrician told Jennifer not to come to the hospital so as not to infect others. She was instructed to do kick counts and take fluids. Unable to keep down fluids, Jennifer called again and was instructed to remain at home until she felt no fetal movement. Jennifer’s vomiting and diarrhea continued.
The next morning, Jennifer called to report the same symptoms and was given the same advice. Later in the day, however, Jennifer went directly to the hospital where she had reported a rupture of her membranes and continued G.I. symptoms. She was admitted to the labor and delivery unit when the obstetrician who saw her ordered an induction. Induction means that medicine is administered through an IV which stimulates contractions. Contractions cause a woman’s cervix to dilate. Full dilation is reached when the cervix is 10 centimeters. At that point, the laboring mom is instructed to push with each contraction until the baby is delivered.
Throughout Jennifer’s labor, she continued to feel nauseous and she continued vomiting. More alarmingly, Jennifer was experiencing hypotension, low blood pressure, and so her nurses attempted to address that with medicine and IV fluids, but not successfully. At the same time, Jennifer’s heart rate was high. Additionally, Jennifer’s fetal heart monitor indicated that her baby was not getting sufficient oxygen which can be by product of a hypotensive mom. Nursing interventions were done to try and correct the fetal heart rate such as turning Jennifer on her side and giving her periodic oxygen by way of a mask.
At a point in Jennifer’s difficult labor, her obstetrician told her that everything was fine and that he was going to take a nap. The hospital resident physicians essentially then became in charge of the labor. At some point, Jennifer was given penicillin for her obvious infection. A young doctor who was performing a maternal fetal medicine fellowship intervened and recommended that a C-section be performed, but that C-section was not done for another ½ hour. At birth, the baby required assistance to breath and was taken immediately to the neonatal intensive care unit where he remained until transferred to a pediatric hospital. A MRI of the brain showed evidence of brain damage likely rated to low profusion injury or hypoxic ischemic injury or “HIE”.
On behalf of the baby, we brought suit alleging that the obstetrician negligently allowed this sick, high risk patient to labor after a premature rupture of membranes, severely dehydrated, tachycardic with a critically hypotensive condition in the presence of a non-reassuring fetal monitor strip. In the Defendant obstetrician’s deposition, he testified that he was working a 24-hour shift; however when confronted with the fact that the took the phone calls at the hospital the night before Jennifer was admitted, he testified that he may have been working a 36 hour shift but he certainly would not be working longer than that.
Further discovery revealed that obstetrician was treating Jennifer at the end of a 48-hour shift. He was naturally exhausted and that is what had compelled him to take a nap at a time when Jennifer’s condition required close monitoring and a C-section. In addition to obstetrical experts, we obtained a consulting expert who specialized in sleep deprivation in the context of medical care.
Shortly before trial, we were able to negotiate a seven figure settlement with the hospital’s and obstetrician’s insurance company. The settlement proceeds were then placed into a special needs trust and which will serve Robbie throughout his life.