Kathleen Flynn Peterson, achieved a medical malpractice settlement of $4.5 million on the behalf of a newborn baby and family in a case involving a failure to properly monitor maternal and fetal status; failure to promptly notify physician of fetal status; failure 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 2, April 2008.
(Excerpts taken with permission from Minnesota Trial Lawyer Association’s (MTLA) “Minnesota Case Reports”)
Date of Disposition: January 2, 2008
This is a medical malpractice case involving a baby born with catastrophic injuries suffered during labor and delivery. In October 2003, patient was at full-term pregnancy when she presented to defendant hospital following a spontaneous rupture of membranes. Electronic fetal heart rate monitoring following admission was initially reassuring. The next morning, defendant nurse midwife took over patent's care and continued to monitor patent's labor until delivery nearly twelve hours later. As time went on, electronic fetal heart rate monitoring became progressively non-reassuring. The baby was delivered vaginally at 10:43 p.m. with an umbilical cord wrapped twice around his neck. He was flaccid, not moving, and required resuscitation, including intubation and chest compressions. The baby was transferred to the neonatal intensive care unit and diagnosed with perinatal distress and metabolic acidosis.
Plaintiffs retained an expert maternal-fetal medicine specialist to testify regarding standard of care and causation. Plaintiff's expert opined that the fetal heart rate monitor tracings showed evidence of polysystole, (ineffective labor pattern) variable decelerations, late decelerations, and decrease in baseline variability. Furthermore, these findings required defendant nurse midwife to intervene and consult with an obstetrician to develop a delivery plan and bring rapid resolution to the fetal heart rate changes. Plaintiff's expert further opined that patient should have been taken to the operating room by 9:35 p.m. for a cesarean section or delivered as expeditiously as possible. Not intervening in the light of the clinical information available and the fetal heart rate monitoring evidence was a deviation for accepted standards of medical practice. In addition, plaintiff's expert opined that the decision to allow this labor to continue resulted in minor being subjected to ongoing hypoxia that more probably than not lead to minor's central nervous system injury.
Plaintiff's also retained a certified nurse midwife to testify regarding standard of care and causation. Plaintiff's expert opined that the nurse midwife care provided to patient and her son fell below accepted standards of nurse midwifery practice. Specifically, plaintiff's expert opined that the defendant nurse midwife should have consulted with an obstetrician by 5:30 p.m. and again at 9:20 p.m. to make the necessary plans to expedite delivery. Furthermore, plaintiff's expert opined that the decision to perform a cesarean section should have been made by 9:35 pm. The fetal heart rate monitor demonstrated ongoing evidence of absent fetal heart rate variability and an unstable baseline. Finally, plaintiff's expert opined that the nurses responsible for patient failed to use the necessary chain of command. In plaintiff's expert opinion, all of these departures from accepted standards of practice allowed minor to continue to experience hypoxia leading to acidosis as evidenced at the time of his birth.
Plaintiffs also retained a pediatric neurology expert to testify regarding causation and damages. This expert opined that minor sustained a hypoxic-ischemic injury to his brain at or around the time of his birth and that minor's injury is permanent and will affect him for the remainder of his life. Based on the nature of his injury, it is more probable than not that minor will require assistance in all activities of daily living and will not live independently. With good medical care and treatment, minor could well live into his adult years. Plaintiff's expert further opined that had minor not suffered a hypoxic-ischemic brain injury, it is more probable than not that his neurological condition would be normal.
Furthermore, plaintiffs retained a pediatric neuroradiologist to testify regarding causation and damages. Plaintiff's expert opined that the neurological imaging studies performed following minor's birth showed that he suffered a hypoxicischemic injury to his brain that resulted in a severe, permanent injury to the left and right sides of the brain. The imaging studies showed no evidence of injuries of a different nature or occurring at a different time.
Plaintiffs also retained a placental pathologist to testify regarding causation. Plaintiff's expert opined that there was no evidence of placental inflammatory changes or a placental infection significant enough to account for minor's neurological injury.
In addition, plaintiffs retained a pediatrics expert to testify regarding damages. Plaintiff's pediatric expert opined that minor suffered a severe and permanent neurological injury that has resulted in life-long disabilities, and he will therefore require significant medical care throughout his life. With appropriate medical, rehabilitative, and nursing care, it is more likely than not that minor will live well into his adult years. It is more likely than not that minor will never independently walk, never be able to support himself, and never be independent in his activities of daily living. Minor more likely than not will require regular access to health care attendants as well as lifelong medications, therapies, interventions, and other assistance.
Plaintiffs also retained a life care planner and economist to calculate minor's loss of earning capacity and reduce to present value the future costs set forth in plaintiff's life care plan.
The case was vigorously defended on causation and damages. Defendants obtained supportive opinions from multiple well respected physicians, including a local board certified maternal-fetal medicine specialist, pediatric neurologist, life care planner, annuity specialist, and economist. Defendant's causation experts all opined that minor's current physical injuries were not the result of intrapartum hypoxia. Specifically, defendant's experts opined that minor's cerebral palsy is not of the spastic quadriplegic or dyskinetic type that is required in order to establish that the minor's cerebral palsy is the result of an acute intrapartum hypoxic event. Minor has hypotonia, and defendant's experts opined that intrapartum hypoxia is not a recognized cause of hypotonia. In addition, defendant's experts opined that a causal connection between minor's cerebral palsy and intrapartum hypoxia could not be established because other identifiable etiologies could not be excluded. According to defendant's experts, minor's persistent hypotonia coupled with his regression from developmental milestones strongly suggested a genetic disorder as the cause of his problems. A complete genetic workup was therefore warranted and would be necessary in order to rule out a genetic disorder as the cause of minor's neuromuscular problems. Finally, defendant’s experts opined that the fetal heart rate monitoring data did not indicate any sentinel hypoxic event that would be corroborative of an intrapartum injury.
Defendant's pediatric neurologist opined that minor had a significantly reduced life expectancy. Specifically, defendants' expert opined that minor's median life expectancy was between 12 and 15 years because of minor's immobility, mental disability, visual impairment, seizure activity, and sleep disorder. The expected costs of future care from defendant's life care planner and economist were a fraction of those suggested by plaintiffs due, in part, to defendant's expert opinion regarding minor's reduced life expectancy.
Past medical expenses totaled nearly a half million dollars. Plaintiff’s estimated future care costs reduced to present value was in the millions of dollars. Minor's loss of future earning capacity, including fringe benefits, was projected to be nearly three million dollars assuming a normal life expectancy. Defendants' economist challenged plaintiffs' assessment as to lost earning capacity and offered a figure of less than $600,000. Defendant's economist further reduced damages through a restrictive present value calculation as to future medical expenses as well as reliance on defendant's life care planner's opinion that certain care items were unnecessary.
While preparing for trial, the parties participated in ongoing negotiations that resulted in settlement. A portion of the settlement was used to purchase an annuity that provides payments for the lifetime of minor guaranteed for 20 years. A substantial portion of the recovery was placed in a special needs trust.