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Another Myth About Premature Labor and Delivery Malpractice

By Max Kennerly, Esq. on July 12, 2014 - 1 comment

I read a lot of medical blogs, including the blog at Emergency Physicians Monthly authored by a pseudonymous ER doctor who goes by the name “WhiteCoat.” WhiteCoat recently complained about a $14.5 million malpractice verdict in favor of a baby born at 24 weeks with severe disabilities. WhiteCoat thinks the case was a “no win” situation in which the doctor would have been blamed either way.

Preterm labor is an issue near and dear to my heart: I’ve represented birth injury victims for years, and my twins were born extremely premature (26 weeks). From what we can tell about the case from the newspaper article, it’s simply malpractice.

The case arises from a birth back in 2003. According to an article at Cleveland.com, the mother went into labor three times during the 22nd and 23rd weeks of her pregnancy, and each time it was stopped with medication* and bedrest, and she was discharged. According to the article:

On April 10, Stewart’s water broke and she was admitted to the hospital at 12:30 p.m. She and her doctor had discussed that she should get another caesarian section [like with her last child].

Although she asked to deliver her baby soon after she was admitted, the nurse and residents on call did not agree, Pantages said.

When Weight, the attending obstetrician,  arrived at 5:30 p.m., she asked to have the baby delivered, but he said monitors showed the baby was healthy.

The baby later showed signs of distress and Stewart had an emergency caesarian section at 9 p.m. Alijah had a massive brain hemorrhage, and evidence showed it occurred after 5:30 p.m., Pantages said.

The child, now 11 years old, still suffers from “cerebral palsy, cognitive delays, visual impairments and other issues that will require lifelong care.”

From those facts alone, I can see three potential avenues for a malpractice case:

  1. The doctors wrongly discharged her previously, and should have kept her in the hospital to monitor the baby’s health and attempt to prevent preterm labor or premature rupture of members (like with the medications above, or with a cerclage, if she was showing signs of cervical insufficiency or cervical funneling).
  2. The doctors failed to timely diagnose the potential for preterm labor and failed to administer steroids (i.e., “antenatal corticosteroids” like betamethasone), which have been produce to reduce the likelihood of premature birth complications.
  3. The doctors failed to recognize fetal distress prior to 9pm, and thus failed to perform an emergency c-section as soon as they should have.

Based on the article, it seems the case focused on #1 and #3, because #2 wasn’t mentioned. Maybe it came up at the trial.

WhiteCoat complains most about the mother’s request for a c-section, arguing that she’s not a doctor, and so her views are irrelevant. Indeed, she’s not a doctor, and thus not the expert on the standard of care. Her lawyers would have their own expert witness to testify about that. But that’s beside the point: the reason that evidence came into the case was to show the jury the whole context, and to respond to the hospital’s arguments about what she would have done if they had offered her a c-section.

Moreover, the bigger picture of the case isn’t about what the mother did, or did not, say. It’s about whether the baby showed signs of fetal distress and the doctors missed it. If so, then a 24 weeker spent up to 9 hours in distress before the c-section was performed, time in which they would have suffered profound — and preventable — injuries.

WhiteCoat is correct that extremely premature babies are at a high risk of numerous disabilities, including cerebral palsy, intraventricular hemorrhage, periventricular leukomalacia, and many of the other complications experienced by the child, but those complications by no means guaranteed. There are plenty of perfectly healthy former 24-week-preemies living full, productive, active, healthy lives, no different from anyone else. Then there are a tragic number of babies born at much later gestations that suffered complications which could have been prevented by better management of the pregnancy (such as to discover low amniotic fluid levels, or growth restriction, or the like), by the administration of steroids, or by an emergent c-section rather than a prolonged delivery.

The question is what those fetal strips showed. If they showed distress, then it was negligent to not perform an emergency c-section. Period. In short, it’s not a “no-win” case for the doctor. If they had properly diagnosed the distress and performed a c-section, the kid would be better off and no one would be liable for anything.

 

* I assume the medication was terbutaline, which was commonly used back then in an effort to stop preterm labor. In 2011, the FDA put out an alert recommending against its use.

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One Response to “Another Myth About Premature Labor and Delivery Malpractice”

  1. On
    WhiteCoat said:

    Thanks for the discussion.
    I agree that fetal distress mandates immediate C-section. However, the plaintiff’s attorney mentioned in the article that the strips showed that the child was “healthy.” I’m *sure* that a plaintiff would raise the point that the strips were misread in the article if that was something argued at trial.
    So assuming that the strips initially showed no distress and that the doctors performed an emergency C-section when the strips did show distress a few hours later, how is this case “simply malpractice”?
    Hindsight bias very strong here. Regardless of actions that doctors take, child will “to a reasonable degree of medical certainty” suffer a bad outcome. When bad outcome occurs, it is easy to argue that the opposite course of action is the correct one –> “no win” situation by definition.

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