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    Legally Speaking: Tubal ligation failure results in wrongful pregnancy claim


    Failure to follow up fundal height discrepancy

    A 37-year-old Massachusetts woman was pregnant with her second child and received prenatal care from her obstetrician. At 37 weeks’ gestation, it was noted that the fundal height was lagging gestational age of the fetus greater than 2 cm. At 39 ½ weeks she called the office to report decreased fetal movement. Because her treating physician was on vacation, the woman was evaluated by another physician in the group. A fetal heart rate (FHR) monitor showed a non-reactive tracing and the doctor advised her to drive herself to the hospital for evaluation. At the hospital the lack of variability in the FHR was confirmed and an emergency cesarean delivery was performed. The infant had no respirations initially and was treated by the pediatric team before transfer to the transitional care unit, subsequent intubation, and transfer to the neonatal intensive care unit (NICU). Cord blood gases confirmed metabolic acidosis. The child was ultimately diagnosed with dystonic cerebral palsy. He is unable to speak, walk, eat, or care for himself in any way.

    In the lawsuit that followed, the patient alleged negligence in the failure to order any fetal testing after the fundal height discrepancy was found, claiming that testing at that time would have led to an earlier delivery and avoided the profound brain damage. She also alleged negligence by the pediatrician in failing to ensure adequate oxygenation after delivery by promptly transferring him to the NICU and immediately intubating him.

    The physicians claimed that the fundal height discrepancy was explained by the position of the fetus in utero and that the pediatrician had acted heroically in saving the baby’s life after delivery.

    The verdict

    A $3.5 million settlement was reached.


    Dawn Collins, JD
    MS COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via ...


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