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    Were these infant’s delays secondary to fetal distress and hypoxia?

     

    The “official” BPP performed at 9 AM scored 4/8. MFM Dr. C was consulted and advised delivery. At 9:30 AM RN noted that Dr. S. (PGY3) was made aware and at 10 AM RN noted that Dr. I discussed the non-reassuring status with the patient, who gave consent for cesarean delivery. At 11:01 AM the patient had received two doses of dexamethasone; the FHR remained at 155 bpm with minimal variability, no accelerations and spontaneous variable decelerations. A low-lying placenta and estimated fetal weight of 1816 g were also noted.  

    At 11:48 AM on 2/26/13, at 32w6d, the patient underwent an emergency cesarean, performed by attending Dr. J and a resident, with spinal anesthesia. At 11:56 AM maternal placental cord pH was 7.37. The baby girl weighed 3.5 lb and had Apgars of 1, 2, 4, 4 and 4. Dr. J stated the baby was pink at delivery then decompensated. She was limp with very minimal respiratory effort, was resuscitated and then intubated and taken to the neonatal intensive care unit. Bilateral pneumothoraces were noted and a right chest tube was placed. The infant also had a seizure shortly after birth and was started on anti-seizure medications. She was treated for sepsis with antibiotics, although cultures were subsequently negative. She had no reflexes or spontaneous movements, fixed and dilated pupils, and occasional twitching. Diagnostic testing revealed severe hypoxic-ischemic encephalopathy2 and severe cerebral dysfunction. The infant had respiratory distress syndrome and was unable to tolerate weaning from the vent as she was unable to maintain her airway. She continued to have multiple episodes of bradycardia and desaturations and was diagnosed with aspiration pneumonia and feeding intolerance. 

    On 3/26/13 the infant was transferred from Defendant Hospital to Nonparty Hospital Center for possible lactobezoar. There, the medical staff had a conference with the family to discuss the infant’s neurological impairment and the proposed care plan. After a tracheostomy was performed and milk was found in it, a gastrostomy tube was placed. The infant remained at the Nonparty Hospital until May 25, 2013 but her neurological condition did not improve.

    The child was then transferred to a Children’s Hospital for long-term care and constant stimulation, where she receives occupational, physical, massage, respiratory and musical therapy. The infant now weighs 28 lb. The mother and the staff discussed trying to wean the child off oxygen and getting her to move more, but to date, that has not been successful. The child continues to have multiple episodes of serious aspiration. Her prognosis for long-term survival is very poor.

    Allegations:

    The plaintiff alleged that the child was in distress, became hypoxic and that the cesarean should have been performed much earlier. They claimed that the first BPP should, at the least, have been reviewed by a more senior resident and/or attending. They also alleged an ongoing lack of significant variability in the FHR monitoring strips. The sole neonatal theory was that “brain cooling” or hypothermic therapy was indicated but not performed.

    NEXT: Discovery and  Resolution

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

    1 Comment

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    • UBM User
      No hypoxia at birth as documented by a cord gas and immediate neonatal examination essentially nullifies any theory of intrapartum asphyxia. Also, by deduction, and as commented by an expert, the neonatal behavior after cord clamping also suggests a preexisting metabolic or end-organ neurologic etiology. So, was the neurologic impairment CAUSED by the obstetrical team's failure to deliver the patient sooner? At what precise moment did this baby's intrauterine environment become hostile to sustain intrauterine hypoxic encephalopathy? Because this last question cannot be precisely answered, the case was understandably settled. The uncertainty principle favors the plaintiff's theory of causation rather than to provide for a defense. Most importantly is the theorem that our current tort law system fails miserably at any attempt to be reliable, therefore, it would be folly to present this case to a lay jury who, despite instructions to the contrary, would be totally overwhelmed with sympathy for this family. As a result, obstetricians are the default go-to payment mechanism for attempting to right the wrongs of nature.

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