Growing Up in a World of Hurt

Fearing fetal cardiac distress, a young resident initiates a risky procedure.

By David S. Starr, M.D., J.D

From the January 2003 issue of Cortlandt Forum

Dr. Z is a 28-year-old resident at a small community hospital. She had received exceptional progress reports throughout the first year of her residency and had reached the stage of her training where she presided over difficult deliveries and handled them with the backup of her attending.

One evening at around 9 p.m., a 24-year-old woman was brought in. The patient was a para 0, gravida 1, and she had been in labor since 2 a.m. Dr. Z noted that the rather large baby was still at -3 and recommended to her attending that the baby be delivered by cesarean section because of a lack of progress in labor. After reviewing the case, the attending agreed. However, she was already using the hospital’s lone operating room for another C-section.

Approximately 40 minutes later, Dr. Z went to check on how her patient was doing. On vaginal examination, she found that the baby had descended from -3 to +2. Using an ultrasound heart monitor, she also detected what she believed were four instances of late deceleration of the fetal heart rate, with bradycardia lasting about 30 seconds after each contraction. Dr. Z felt that the baby required immediate vaginal delivery and called the attending to confirm her decision before proceeding. The attending later denied that she had agreed to this course of action. In any case, Dr. Z applied suprapubic pressure and performed the McRoberts’ maneuver (pushing the mother’s legs toward her head to open the pelvis) to accelerate the delivery. Subsequent testimony from plaintiff experts stated that although these actions were acceptable, forcing vaginal delivery of a large infant increased the risk of shoulder dystocia in this case because the head had already passed through the mother’s pelvis but the shoulders had not. 

The baby girl was delivered alive but suffered an avulsion injury to the brachial plexus on her right side. This caused a profound case of Erb’s palsy with severe lack of growth in her right arm and hand. On the advice of a plaintiff lawyer, the mother sued Dr. Z and the hospital, claiming that the delivery was negligent insofar as the progress of labor had shown that the baby was too large to be delivered vaginally. 

The lawsuit began slowly, with multiple interruptions to allow the growing little girl to be examined numerous times by the plaintiff experts. Each examination contributed to the image of a child who was not only physically handicapped, but mentally as well, due to secondary psychological problems.

By the time the trial finally got under way, the girl was nearly five years old. The plaintiff lawyer called on numerous experts who had observed her for most of her childhood and testified that she had received a severe injury with complete avulsion of her right brachial plexus with no signs of recovery. The expert testified that Dr. Z should have delivered the baby via C-section and should never have assumed that the baby was experiencing episodes of fetal distress with only 30-second intervals of late decelerations. He also testified that since the baby was still at +2 and the head had not yet presented, C-section would still have been possible. Finally, he added that the shoulders had not yet negotiated the narrowest part of the birth canal through the bony pelvis. Vaginal delivery, especially if rushed, posed a hazard of shoulder dystocia. As the second blow of a devastating one-two punch, the plaintiff lawyer called on the child’s neurologist, who testified that the right arm showed significant length discrepancy and extensive growth retardation. In his opinion, it was unlikely to grow any further and would remain the size of an infant’s arm for the girl’s entire life. 

Next, the mother testified as to how this complication had affected her daughter. While showing a videotape of the five-year-old girl playing with her younger sister, she drew special attention to the fact that the baby could grasp objects and play with toys but the older girl could not. The lawyer added that the child’s present difficulties and the social stigma of an underdeveloped limb would cause her to be the center of unwanted attention. As an adult, he speculated, she would be physically unable to care for her own children. Finally, a vocational expert testified that she would be excluded from 90 percent of available employment and would suffer job discrimination because of her appearance.

In defense of his client, Dr. Z’s lawyer told the jury that the resident had believed the child was in danger of hypoxia. Dr. Z testified that she had checked with her attending before proceeding with an emergency vaginal delivery and had not received any message telling her not to proceed. Using his own experts, the defense lawyer argued that although the child’s injuries were severe, her life held far more promise than the plaintiff lawyer had allowed.

As a final crushing blow to the defense, the plaintiff lawyer called the attending physician to the stand. She denied that she had ever received a message from Dr. Z regarding this patient. There was no documentation of this message in the chart either. 

The jury returned with an $18-million verdict for the plaintiff. Considering the awards in similar cases, as well as the facts, the judge reduced the verdict to $5.25 million. 

Legal Theory

Judges should only allow evidence that will help the jury decide the case fairly and must exclude evidence that is emotional and prejudicial. The videotape of the young child with her baby sister packed quite a wallop and moved some of the jurors to tears. The plaintiff lawyer used other similar tactics to generate strong feelings. The key elements of his case were sympathy for the child (generated by the videotape and the emotional testimony of the mother) and anger against Dr. Z (elicited through her attending’s denial of authorizing a vaginal delivery).

Trial judges have the power to reduce a verdict that is clearly disproportionate to the facts of the case. Unfortunately, those who are not appointed are often forced to rely on contributions from the plaintiff bar and a populist image to get reelected. Consequently, they tend to take a hands-off approach to even the most extreme jury verdicts. If jury awards continue to increase, the hidden costs of litigation (mainly paid through insurance premiums) will force judges and legislatures to reassert control over the litigation machine. In this case, the unusually large $18-million verdict led the judge to dramatically reduce the jury award. 

Risk-Management Principles

Breakdowns in communication and inadequate supervision were the primary pitfalls in this case. The attending had consulted with the resident in the decision to wait for a C-section, but when the situation apparently deteriorated with the onset of fetal bradycardia, the resident allegedly deviated from this plan without her supervisor’s approval. The resident’s claim that she had checked with the attending was denied and resulted in considerable damage to the defense of the case. Chart documentation would have been helpful in establishing that the communication had taken place. 

Responding to plaintiff lawyers’ appeals, jury awards continue to climb. According to Jury Verdict Research, the median medical malpractice award hit $1 million in 2000. Plaintiff lawyers first appeal to the jury’s emotions and later to their intellect. This patient’s tragic outcome made the plaintiff’s case strong to begin with, but the plaintiff lawyer’s preparation also played a role. His cast of witnesses and carefully crafted testimony helped create the perfect admixture of emotion and cognitive material needed for the jury to produce a mega verdict.

Cases presented are composites of actual occurrences. The names of participants and details have been changed. Cases are informational only; no legal advice is intended. Persons pictured are not the actual individuals mentioned in the article.

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