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    Did traumatic vacuum extraction cause this infant’s delays?



    The plaintiff alleged that the defendants negligently utilized excessive force in implementing the vacuum extractor, without indication for vacuum extraction, resulting in intracranial hemorrhage and subdural hematoma. They also alleged a failure to appreciate uterine hyperstimulation syndrome due to unnecessary and excessive use of oxytocin. They also alleged failure to perform cesarean delivery in the face of traumatic delivery including head compression and decreased cerebral perfusion.



    The plaintiff testified that while she was pushing, she began to experience difficulties. Dr. B told her to stop pushing, and she overheard him say to someone that he “had to hurry up” and “get him out.” She also saw Dr. B grab “the vacuum.” She then testified that she never saw the vacuum nor was she able to see Dr. B use the vacuum.  She could not recall if anyone told her that the vacuum extractor was going to be used nor signing the informed consent documents. She was told by someone that the vacuum extractor was being used to help get the baby out because there was something wrong with his shoulder.  “It was really fast” between the time she was told to stop pushing and the time the vacuum was placed. The infant was born “a few minutes” after the vacuum extractor was placed. The woman claimed that an orthopedist who saw the infant twice told her that he suffered from “high muscle tone.”  Physical therapy was recommended. A neurologist, who treated the infant “a long time ago,” diagnosed the infant with spastic quadriplegia. The woman claimed that the neurologist “agreed” with her that the birth had caused the spastic quadriplegia. However, she conceded that he improved dramatically with physical, occupational and speech therapy and was enrolled in kindergarten without a continuing therapy plan. Significant issues were uncovered in the home as well, which required the intervention of Protective Services.

    Our maternal-fetal medicine expert opined that vacuum extraction was the appropriate mode of delivery in this case because once the second episode of fetal bradycardia occurred, coupled with the patient’s inability to push secondary to the epidural, there was an urgent need to deliver the infant and this was the most effective way to accomplish that. Had the doctor chosen to perform a cesarean deliery, the fetus would need to be pushed back into the abdomen, which is risky, and the operating room would need to be prepared, which could take at least 15 to 20 minutes in total. Although the plaintiff claimed there was “hyperstimulation” that was not addressed by Dr. B, the expert did not see that on the strips and explained that there were the appropriate number of contractions, i.e., approximately no more than 5 within a 10-minute period. He also felt that the use of oxytocin was warranted. It was started after the cervix was fully dilated, but he felt there was no contraindication to its use here to augment labor, which had slowed due to the epidural. Our pediatric neurologist evaluated the infant and did not feel that any of his “delays,” consistent with a learning disability, were related to the vacuum extraction or an alleged subdural bleed that became manifest weeks after delivery. Finally, we retained a neuroradiologist to look at the head studies. That expert opined that there was no evidence of a subdural bleed, but rather a cephalohematoma which lined up with placement of the extractor but was subperiostial, not subdural, and thus too superficial to cause the kind of damage alleged by the plaintiff. 



    Plaintiff interposed a $5 million demand, asserting that this was a significant “brain-damaged” baby case. At the time of trial, however, 2 developments in our estimation significantly altered their perspective. First, the neuroradiologist who had read the head CT as “subdural hematoma” was willing to testify that he had misread the study and in hindsight, upon comparison with the subsequent MRI, it was indeed a cephalohematoma. Second, a series of social media videos and photos of the infant plaintiff engaging in activities it was claimed he was too disabled to accomplish had been posted online by the infant’s mother and were exchanged with opposing counsel. The case ultimately settled for a $200,000 contribution on behalf of Dr. B.


    Andrew I. Kaplan, Esq
    Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare ...


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