Excerpt from, “Patients’ Rights and Doctors’ Wrongs® – Secrets to a Safer Pregnancy and Childbirth”
Howard A. Janet, Esquire – CPFN Legal Advisor
and Giles H. Manley, MD, JD – CPFN Medical Advisor

Samantha is beginning to worry. She’s been awake for well over an hour, but hasn’t felt her baby move. Ordinarily, she feels him move four to five times an hour in the mornings. Samantha is glad she is to see her obstetrician (OB) today for a regularly scheduled appointment. It’s probably nothing, she thinks. The baby’s just sleeping. I’m getting all worked up over nothing. But she continues to have doubts, as any expectant mother would. She craves her doctor’s assurance that her baby is well.

Samantha is thirty-eight weeks pregnant. She has diabetes, so her pregnancy is considered high- risk. Taking appropriate precautions, Samantha decided to entrust her care and that of her baby, whom she has already named Robert, to an obstetrical group that includes a specialist in high-risk pregnancy known as a maternal fetal specialist. The specialist managing her care recommended that Samantha undergo an elective C-section when it’s time for delivery. She agreed and is scheduled for surgery in two weeks.

The reason for Samantha’s appointment this morning is to perform a non-stress test (NST), a simple, non-invasive test performed in pregnancies after the twenty-eighth week to assess the baby’s well-being. The test is so-named because it puts no stress on the fetus. The test involves attaching one belt to the mother’s abdomen to measure fetal heart rate and another belt to measure contractions. Movement, heart rate and reactivity of heart rate to movement are measured for twenty to thirty minutes.

Samantha’s doctor has instructed her to eat regularly, so before heading out the door, she takes time to eat a light breakfast of toast with sugar-free strawberry jelly, followed by a glass of skim milk. With a little food in her tummy, she feels better physically and mentally. Her mood improves. Everything has been going just as it should, she thinks. My baby has been right on track every time I’ve seen the doctor. There’s no reason to think that’s changed.

But she’s still not able to shake those nagging worries. The baby is still. No little elbows nudging her. No kicks, rolls or wiggles. Samantha rushes to her appointment and tells her doctor about the baby’s lack of movement as soon as she arrives.

At this stage of pregnancy, establishing the presence of fetal movement is essential. A baby that exhibits adequate fetal movement and a normal heart rate is classified as reactive, with adequate blood flow (and oxygen) to the fetus. That is what everyone wants. A non-reactive result requires additional testing to determine whether the result is due to poor oxygenation or there are other reasons for fetal non- reactivity.

Samantha’s high-risk obstetrician conducts electronic fetal heart monitoring (EFM), which can detect fetal movement that is imperceptible to the mother. A reactive baby’s heart rate should speed up or accelerate when fetal movement occurs. In Samantha’s case, no accelerations are detected during twenty minutes of EFM. The OB is concerned, but it is possible the baby is just sleeping. He maintains a poker face, tells Samantha there is no reason for alarm, and suggests performing a biophysical profile (BPP).

Using ultrasound equipment, the OB begins the BPP procedure, which uses sound to stimulate fetal movement. When he presses a buzzer, the noise travels through the amniotic fluid, but produces no fetal movement. That’s not good news. The OB stops the biophysical profile in its tracks.

He tells Samantha it’s time for her baby to be delivered, and immediately sends her to the hospital, which is just a short wheelchair ride away. A nurse alerts the hospital that the patient is on her way over for a C-section. The referring OB writes a note explaining why Samantha is being sent for delivery at this time, and sends it with her to the hospital. He expects the C-section to be performed without delay unless further testing upon arrival at the hospital demonstrates the baby’s condition has significantly improved.

By the time she reaches the hospital, Samantha is extremely alarmed. I thought the doctor would say everything was fine. Something must be terribly wrong. Oh, God, please let my baby be all right!

A nurse in the labor-and-delivery suite evaluates Samantha and her baby upon admission. Despite the phone call from the high-risk OB’s nurse and the explanatory entry in Samantha’s chart, the nurse writes in the hospital chart that Samantha has presented for an elective C-section.

A resident physician in his early years of training to become a specialist in obstetrics and gynecology interviews and examines Samantha. He learns she ate breakfast before arriving at the hospital. He also learns she has given birth previously while under regional epidural anesthesia without any complications. The resident then reviews the results of electronic fetal monitoring performed after Samantha arrived at the hospital. The EFM tracings continue to be non-reassuring of fetal well-being. No accelerations appear on the EFM, and no fetal movement is otherwise detected.

But the resident mistakenly accepts the labor-and-delivery nurse’s chart notation that Samantha came to the hospital for an elective C-section. In addition, he fails to appreciate the urgency of the latest EFM tracings, particularly in light of the results of the non-stress test and truncated biophysical profile performed by her high-risk OB.

Instead, the resident focuses on the fact that Samantha ate breakfast and his belief that she is there on an elective basis. For these reasons, he proposes waiting to perform the C-section – assuming the baby’s condition doesn’t deteriorate – until six hours after Samantha last ate. He wants to delay delivery to give Samantha time to digest her food before subjecting her to any form of anesthesia. He is particularly concerned that if she is given general anesthesia, it may cause her to vomit into her mask, blocking her airway.

Samantha’s panic subsides when she learns her C-section is being postponed for several hours. She assumes her baby must be safe and healthy if the delivery team has decided to wait this long. She assumes wrong. Because she hasn’t educated herself about complications that can occur in delivery, she doesn’t understand the terminology being used or recognize her baby is at risk. She doesn’t know the right questions to ask or the actions to demand. She doesn’t even know to insist the hospital’s resident consult with her high-risk OB.

Within an hour after Samantha’s arrival at the hospital, the resident discusses his proposed delivery plan with the hospital’s attending OB, an experienced obstetrician who is in the same obstetrical practice as the high-risk OB who sent Samantha to the hospital for delivery. He must approve the delivery plan before it can be finalized. The attending OB chooses not to come to the patient’s bedside to personally assess Samantha’s condition and that of her baby. He does not read her medical record or call his partner who sent her for delivery. Without the benefit of any first-hand knowledge of the two patients’ conditions, he approves the resident’s proposed delivery plan.

Six hours pass since Samantha last ate, but the delivery still is not performed. Approximately a half-hour after the six-hour deadline expires, the hospital staff finally begins to prep her for a C-section. But the six-and-a-half-hour wait proves too stressful for Samantha’s baby, whose heart rate plummets to a dangerous level.

An alarm goes out for the attending OB to perform an emergency C-section. He arrives and performs the procedure, but not before Samantha’s baby suffers irreversible brain damage as a result of oxygen deprivation. Baby Robert’s clinical condition and head imaging studies reveal this sad reality. His brain injury ultimately leads to cerebral palsy and cognitive impairment.

It takes more than three years, but suspicions start to creep into Samantha’s mind that Robert’s brain damage and cerebral palsy could have been avoided. She consults a medical malpractice attorney, who tells her she has no case and politely sends her on her way. But Samantha refuses to give up and finds her way to CP Family Lawyers. They conduct a thorough investigation and identify gross errors in the obstetrical care Samantha received after arriving at the hospital for delivery.

First, nurses and doctors at the hospital never fully appreciated the true purpose of the admission. They ignored the phone call from the high-risk OB’s nurse about why Samantha was being sent to the hospital, as well as the note he sent with her. Inexplicably, they proceeded as if Samantha was admitted for the elective C-section she scheduled before that fateful day when her baby stopped moving. The resident told the attending OB the admission was for an elective procedure when he requested approval to wait up to six hours since the mother’s last meal before performing surgery.

It was the attending OB’s duty to see Samantha, examine her, and personally review her records. It was his duty to ask the resident probing questions about the patient, and review all the information he had about her and her baby. The attending OB took none of these steps. Essentially, he rubber-stamped the resident’s plan. In fact, he didn’t see Samantha at any time prior to the call for an emergency C- section.

Had the attending met his obligations, he would have recognized waiting for Samantha’s breakfast to digest further was unnecessary and dangerous. He would have known baby Robert urgently needed to be delivered when she was sent to the hospital. The reassessment performed at the hospital did not reveal any signs of improvement. The baby’s condition continued to demand urgent delivery. During the six-hour-plus wait that followed admission to the hospital, the baby’s condition deteriorated even further. The obstetrical team failed to appreciate that fact, so they waited the full six hours and then some.

No one took into account that the C-section would have been performed under regional, not general, anesthesia. No one took into account that Samantha had previously undergone a C-section using regional anesthesia without any complications arising and without the need to convert to general anesthesia.

Given the lack of fetal movement and the non-reassuring fetal monitor tracings, the risk of severe, irreversible injury to Samantha’s baby from delayed delivery far outweighed the comparatively negligible risks associated with any form of anesthesia, despite Samantha’s recent food intake.

The final blow was this: If the doctors had followed their own misguided delivery plan and met their self-imposed six-hour deadline, baby Robert still would have avoided permanent injury. The doctors would have gotten away with their mistakes. Ultimately, it was undisputed that Samantha’s baby’s irreversible brain damage occurred during the twenty-minute period before his delivery – after the six-hour deadline had expired.

CP Family Lawyers filed suit on behalf of Samantha’s child. They could not make a claim on her behalf because the statute of limitations that imposes a time limit on filing such a lawsuit had expired. But they still had ample time to file a lawsuit on behalf of her child. The defendants fought like their lives depended on the outcome of the case. In the end, they won a record-breaking verdict for baby Robert – one that will provide the compensation he truly deserves and ensure he will be taken care of for the rest of his life.