Kathleen Flynn Peterson, achieved a settlement of $3.7 million on behalf of the family of a newborn with brain injury and cerebral palsy as the result of a negligent failure to properly monitor the maternal and fetal status, to promptly notify physicians of fetal status, to initiate the nursing chain of command, to timely perform a cesarean section delivery so as to avoid serious and permanent injury, and failure to inform patient of the risks associated with not performing a timely cesarean section delivery. Read the following Minnesota Case Report, Volume 27, Number 6, December 2008.
(Excerpts taken with permission from Minnesota Trial Lawyer Association’s (MTLA) “Minnesota Case Reports”)
This is a medical malpractice case concerning a baby born with catastrophic injuries suffered during labor and delivery. In May, 2004, patient was over 38 weeks pregnant when she noticed a decrease in fetal movement. She previously had an uncomplicated pregnancy. She reported to defendant hospital and at 12:40 a.m. she was placed on an external electronic fetal monitor. From 12:40 a.m. until about 3:00 a.m. patient’s electronic fetal monitor tracing was non-reactive showing numerous variable decelerations, decreased long-term variability, and no accelerations.
The defendant doctor was paged at 2:00 a.m. and notified of the non-reactive tracing. Defendant doctor ordered continuous monitoring, a sterile vaginal examination, and Vistaril for sleep. He did not come to the hospital to examine patient. The electronic fetal monitor tracing did not improve. At 4:15 a.m., a bedside ultrasound concluded that patient’s baby was in a breech presentation. Defendant doctor was not notified of the breech presentation until hours later. At 6:00 a.m. an acoustical stimulation test failed to produce any responsive accelerations. At 7:00 a.m. defendant doctor ordered a biophysical profile. Again, he did not come in to examine patient. A radiology technician performed a bedside biophysical profile at 7:05 a.m. While at patient’s bedside, the radiologist observed a cessation of fetal cardiac activity at approximately 7:35 a.m. Immediately thereafter, patient was brought for an emergency cesarean section delivery.
The baby was delivered at 7:50 a.m., the umbilical cord wrapped three to four times around baby’s neck. The baby required full resuscitation, including chest compressions and epinephrine. The baby was transferred to a neonatal intensive care unit and diagnosed with severe perinatal asphyxia and severe hypoxic ischemic encephalopathy. Minor suffers from spastic quadriparetic form of cerebral palsy. Her neurological injury has resulted in life-long disabilities, and she will therefore require significant medical and physical care throughout her lifetime.
Plaintiffs retained an expert maternal-fetal medicine specialist to testify regarding standard of care and causation. Plaintiffs' expert opined accepted standards required that defendant doctor come to the hospital as soon as he became aware that his patient had complaints of decreased fetal movement and a non-reactive fetal heart rate pattern. Given the non-reassuring fetal heart rate pattern and breech presentation, plaintiffs’ expert opined that the defendant doctor should have decided to perform a cesarean section delivery at 4:19 a.m. If he had done so, the baby would have avoided the acute, profound asphyxial insult she suffered during the cessation of fetal cardiac activity nearly three hours later.
Plaintiffs also retained a registered nurse to testify regarding standard of care and causation. Plaintiff's expert opined that the nursing care provided to patient and minor failed to comport with accepted standards of nursing practice. The nurses at the hospital should have contacted defendant doctor no later than 1:20 a.m. after reviewing 40 minutes of a non-reactive electronic fetal monitor tracing in a patient with decreased fetal movement. In addition, when a nurse did contact defendant doctor at 2:20 a.m., she should have requested that defendant doctor come in to evaluate patient and, if he refused, execute the nursing chain of command. The nurses also failed to follow accepted standards when they neglected to contact a physician anytime between 2:20 a.m. and 6:40 a.m. as they continually observed a non-reassuring fetal heart rate pattern. Accepted standards required that a nurse contact defendant doctor when the nurses confirmed a breech presentation at 4:15 a.m.
Plaintiffs also retained a pediatric neurology expert to testify regarding causation and damages. The expert opined that minor sustained a hypoxic-ischemic injury to her brain at or around the time of her birth and that minor's injury is permanent and will affect her for the remainder of her life. Based on the nature of her injury, it is more probably than not that minor will require access to supportive care to help her complete activities of daily living. With good medical care and treatment, minor cold live well into her adult years. Plaintiff's expert further opined that had minor not suffered a hypoxic-ischemic brain injury, it is more probably than not that her neurological condition would be normal.
Plaintiffs also retained a neuroradiologist to testify regarding causation and damages. Plaintiff's expert explained how the neuroimaging studies following minor’s birth objectively demonstrate her hypoxic-ischemic injury. Minor’s head CT and MRI studies show that the predominant injury to her brain resulted from an acute, profound hypoxic-ischemic insult. The specific cause for the brain damage shown in minor’s imaging studies is the single episode of hypoxiaischemia.
Plaintiffs also retained a placental pathologist to testify regarding causation. Plaintiff's expert opined that there was no evidence of umbilical cord necrosis or thrombosis.
Plaintiffs also retained an executive director of a cerebral palsy organization to testify regarding general damages. This testimony would have addressed experiences and challenges faced by individuals and families of individuals living with cerebral palsy.
Plaintiffs also retained a rehabilitation consultant and economist to calculate minor’s loss of earning capacity and reduce to present value the future costs set forth in Plaintiff's Continuum of Care Plan.
The case was vigorously defended on issues of liability, causation, and damages. Defendants obtained supportive opinions from multiple well-respected physicians in the fields of obstetrics/gynecology, perinatology, nursing, life care planning and economics.
Defendant’s nursing expert opined that the nursing care provided to patient conformed with accepted standards of nursing practice and that baby’s neurological deficits were not caused or contributed to by any departures from accepted standards of nursing care. Defendant’s obstetric and gynecology expert opined that the care and treatment provided by defendant doctor was within accepted standard of obstetric practice, that the cardiac event that occurred just before baby’s birth was unpredictable, and that minor's current neurological damage was not the result of any negligence by defendant doctor. Defendant’s peritology experts opined that the outcome in this case would not have been any different if defendant doctor had evaluated patient earlier and that baby did not sustain neurological damage between the time of patient’s admission and baby’s cardiac arrest. Furthermore, Defendant’s pathology expert opined that minor’s neurological damage was more likely than not associated with the existence of a hypercoiled umbilical cord and nuchal cord that were unpreventable and unforeseeable conditions.
Past medical expenses totaled over two hundred thousand dollars. Plaintiff's estimate of future care costs reduced to present value were in the millions of dollars. Minor’s loss of future earning capacity, including fringe benefits, was projected to be well over one million dollars assuming a normal life expectancy.
Defendant’s economist challenged Plaintiff’s assessment as to loss of earning capacity, and offered a figure under $92,000 for the same life expectancy. Finally, Defendant’s damages experts opined that the expected costs of minor's future care were far less than Plaintiffs suggested. The parties participated in mediation and a pretrial/ settlement conference. The case settled with one defendant at mediation and with the other defendant following the pretrial/settlement conference and prior to trial. A substantial portion of the recovery was placed in a Minor Settlement Trust.