Firm partner Terry L. Wade of Robins, Kaplan, Miller & Ciresi, L.L.P. and Brian Wojtalewicz, Wojtalewicz Law Firm, Ltd. secured a jury verdict of $9.566,500 million for the family of a severely brain damaged newborn where inappropriate use of a drug Cytotec to induce labor with no medical indication resulted in failure to diagnose hyperstimulation leading to aggressive vacuum extractor and forceps. Read the following Minnesota Case Report, Vol.28, No.1, Apr. 2009:
(Excerpts taken with permission from Minnesota Trial Lawyer Association’s (MTLA) “Minnesota Case Reports”)
Description of Case: After an uneventful and normal pregnancy, LP was admitted to the hospital in May of 2002 for induction of labor because her husband was going away for a military weekend. Cytotec was utilized for the induction. Cytotec is inserted in the vagina near the cervix. It is long acting and so effective at inducing contractions, it is used as a first trimester abortifacient in higher doses. It is not FDA approved for inducing labor but is commonly used for this off-label purpose because it is so effective. One of the risks of the medication is hyperstimulation or too frequent contractions too close together with inadequate rest between contractions. Over time, this can lead to fetal hypoxia. Neither LP nor DP were apprised of the risks of induction nor was informed consent given regarding the off-label use of Cytotec. The most commonly recommended dose is 25 mcg. repeated every 4 to 6 hours until contractions begin. In some situations where the need for prompt delivery outweighs increased risk, 50 mcg. every 6 hours has been recommended. It is well known that the risk of hyperstimulation and potential fetal compromise is increased at the 50 mcg. level.
Dr. R inserted the first dose of 25 mcg. at 0840. At 1250, he decided to insert a 50 mcg. dose. No informed consent was obtained regarding increased risk with the increased dose. Following rupture of membranes at 1615, strong frequent contractions at least every 1 to 1-1/2 minutes, lasting 40 to 60 seconds with inadequate uterine relaxation between contractions developed and continued from approximately 1730 to delivery at 2147. Hospital nurses failed to recognize an abnormal uterine contraction pattern and did not call the physician or give medication (Terbutaline) intended to reduce contraction frequency and duration despite a standing Cytotec induction order to do so. The physician also failed to identify this abnormal uterine contraction pattern on the two occasions he examined LP during the period tachysystole was ongoing.
At about 2025, the physician was called as mother was approaching delivery. By 2115, the physician recognized concerning fetal heart rate decelerations and thought it imperative to effect delivery. He did not have cesarean section privileges and an operating crew was not present in any event. He applied a vacuum assisted delivery device five times. He could not deliver the baby and whispered to a nurse to get a senior partner (who did have c-section privileges) to come help. That partner came and unsuccessfully attempted to use forceps to effect delivery. The forceps were abandoned and the vacuum extractor was utilized two more times resulting in delivery of a blue, flaccid baby with slow, irregular respirations. Apgars were 3 at 1 minute and 4 at 3 minutes.
Multiple vacuum applications, particularly when combined with attempted forceps, is recognized to increase the risk of traumatic injury, particularly bleeding just outside the skull known as a subgaleal bleed. This injury can range from minor to moderate causing a drop in blood pressure and reduced perfusion to the brain, to severe resulting in fetal exsanguination. This bleed typically progresses over several hours following delivery.
The baby was initially resuscitated with a bag/mask ventilation for 90 seconds. The baby was taken to a newborn nursery in this small community hospital. Experts for the family opined that intensive monitoring and treatment was required. Baby W was treated as a normal newborn. Blood pressures were not recorded despite the risk of subgaleal bleeding. Though taken to his mother twice during the night to breast feed, he did not eat. Around 7:30 a.m. as a nurse was walking by the nursery, she happened to look into the nursery and saw that W was blue and not breathing. A Code was called. Shortly thereafter the baby seized and continued to have apneic and bradycardic spells with seizures. Near 10:00 a.m. a glucose was drawn indicating significant hypoglycemia believed to exacerbate hypoxic injury according to the testifying pediatric neurologist and neonatologist for plaintiffs. It wasn't until 10:30 a.m. that a tertiary care facility was contacted and the baby was airlifted to the specialty care hospital. A CT scan done at 17 hours of life (reported as normal by the local radiologist) demonstrated brain swelling according to plaintiff's pediatric neurologist and pediatric neuroradiologist. They also identified a subgaleal bleed on this imaging. Plaintiff's experts opined that W had decreased blood pressure as a result of this bleed which decreased perfusion to the brain further exacerbating W's brain injury. He spent 12 days in the hospital. At 3 months of age, it was determined that W had significant brain damage. At 6-1/2 years of age, W cannot speak, drools constantly, has motor impairment on both sides, right side greater than left, and has difficulty eating. He will never live independently or be competitively employed. He is not bowel or bladder trained. He lives at home with his parents and two younger, healthy siblings.
The defense experts opined that the care provided by both the defendant physician and the nurses was exemplary. While ultimately conceding that there was brain swelling on the CT scan at 17 hour of life, it was the defense theory that some undefined event occurred some 4 to 6 days before delivery which accounted for W's injury. Defense experts opined that neither the period of hypoglycemia nor trauma contributed to the child's brain injury.
This case was initially tried in July of 2007 in the community of 2,100 where the hospital and clinic are located. Many of the jurors knew the physician and nurses or their families, including a teacher of the defendant physician's children. Change of venue motions prior to the initial trial were denied. Repeated motions for a mistrial and change of venue during the three days of voir dire and periodically during the first trial were denied. Extended family members of the physician and nurses and other supporters of the defendants packed the courtroom day after day and watched the trial and the community jury of neighbors and acquaintances. The family sat alone. Despite the not so subtle community pressure, this initial local jury could not reach a verdict and a mistrial was declared. A change of venue motion to Stevens County was granted. After a three week second trial in Morris, MN, the jury returned an unanimous verdict against both defendants after deliberating two and a half hours. The jury verdict for the plaintiffs was $9,566,500.
Verdict: Minnesota at $9,566,500 - Physician/Clinic at 70%, Hospital at 30%
Terry L. Wade, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, MN (612) 349-8500 and Brian Wojtalewicz, Wojtalewicz Law Firm, Ltd.
, Appleton, MN (320) 289-2363