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    High/low agreement in shoulder dystocia case complicated by patient history


    Dawn Collins, JD

    Ms. Collins is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to [email protected] 


    An Illinois woman received prenatal care from her obstetrician during her pregnancy in 2005. Her first delivery, in 2004, was vaginal and complicated by a shoulder dystocia but the infant had no injury. The obstetrician who performed that delivery recommended that all of the woman’s future deliveries be by cesarean. During the second pregnancy, which was managed by a different obstetrician, the patient discussed with that doctor the possibility of a trial of labor and vaginal delivery. She went into labor at about 37 weeks’ gestation and was admitted to the hospital. The obstetrician believed the fetus was a size favorable for vaginal delivery, but once the head delivered, a shoulder dystocia was encountered. Various maneuvers were performed to deliver the fetus, which occurred after about 5 minutes. The infant had no signs of life and 0 Apgar scores for over 14 minutes and was air-lifted to another hospital. He was diagnosed with hypoxic ischemic encephalopathy and a C5-6 brachial plexus injury. He was subsequently diagnosed with neurocognitive deficits including attention deficit hyperactivity disorder.

    In the lawsuit that followed, the patient claimed the obstetrician was negligent in failing to fully explain the risks of vaginal delivery, failing to recommend a cesarean, failing to perform an ultrasound when she was admitted, failing to perform an episiotomy after the shoulder was stuck, and for applying excessive traction. She claimed an ultrasound would have shown the fetus was larger than her first baby, which would have led to a cesarean delivery.

    The obstetrician claimed that he extensively counseled the patient on the risks of vaginal delivery, but admitted that he did not recommend a cesarean delivery and argued that an ultrasound would not have changed the plan for trial of labor. He also claimed that an episiotomy would have been of no benefit and that a moderate amount of traction was necessary after the other maneuvers were employed to accomplish the delivery and prevent more severe brain damage or death. He argued that the child’s current deficits were not related to his birth.

    Next: The verdict and analysis >>

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    • Dr. Armando Russo
      SD and BPI cases are very difficult to defend regardless of the appropriateness of the care rendered. This is possible because 1) there is an real injury and 2) the plaintiff's bar has conditioned society to believe such things could never happen but for the negligence of the defendant OB provider and 3) the system allows colleagues who are professional witnesses who deliberately distort the facts yet cannot be impeached for their impropriety. In other words, the show must go on. In these so-called "bad baby" cases, the stakes are so high (above policy limits), neither the carrier nor the OB is willing to go to the mat so, ultimately some sort of settlement is reached. The high-low offer is a form of settlement. Who are the winners and who looses? It's very clear who does. Wouldn't it be equitable to see a high-low arrangement where the payment is to the plaintiff and the court expenses only? What's the chance of that happening? Better still, because these cases are at the apex of liability loss, we should have an entirely different system that is capable of determining if a standard of care was indeed breached. If it was, an equitable payment could be made quickly. This is not likely to happen unless the system, currently under the total control of disingenuous self-serving conflicting interests, collapses under its own ineptitude or we get legislators who do not take orders from the trial bar.


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