Minor plantiff's mother was expecting the birth of her first child and was sent to the hospital for Pregnancy Induced Hypertension evaluation. On June 6, 1998, after a reactive Non-Stress Test the plaintiff's mother was sent home to resume normal activity.
On July 13, 1998, the mother was again seen for a prenatal visit and sent to the hospital for evaluation of decreased fetal movement. During this visit the mother had another reactive NST and PIH labs that returned normal results.
The exam notes positive fetal movement and the mother was sent home on PIH precautions with instructions to come back the next day for a blood pressure check.
On July 14, the mother returned for a scheduled blood pressure check. During this visit, the mother was having irregular contractions, which was noted, and again she was sent home with PIH precautions. On this date, there was no mention whatsoever of any decreased fetal movement .
The following day, July 15, the mother called her doctor to report decreased fetal movement. She was told to drink something sweet and if there was no improvement in an hour, then she should go to the hospital.
When things didn't improve the mother went to the hospital where she was sent to the triage area of Labor and Delivery for an NST, which was Non-Reactive. The doctors then ordered a Biophysical Profile which was noted to be 2/8 (2 for fluid). That score would have been 8/8 for a normal and healthy child.
The NST and BPP were both clearly abnormal and indicated an urgent need to immediately have the child delivered.
The defendant obstetricians were aware, as early as 6 p.m. on July 15, of the non-reassuring fetal testing. However, instead of moving for immediate cesarean section operation, the defendants doctors performed an oxytocin challenge test (OCT). The minor plaintiff's mother was put on the fetal monitor at 6:35 p.m. and the OCT was started at 7:10 p.m.
Record indicates strong, regular contractions at 7:15 p.m. Later on the defendant nurse testified that she was listening to the baby’s heart rate and after the contraction ended she was hearing the heart rate go down.
The nurse said that the strip for the first 20 to 25 minutes of the test was not reactive, with minimal variability. The medical record did not show any indication that the attending doctor performed an exam to ensure fetal well being. Despite the strips, the Pitocin was increased and the challenge test continued.
Medical record reveals that at 8:00 p.m. the attending obstetrician studied the fetal monitor tapes. In spite of what he saw on the strips he failed to order an immediate c-section.
It was only after 9:00 p.m. when the plaintiff's mother ruptured her membranes that revealed meconium stained fluid when the decision for a c-section was made.
The baby was delivered at 10:04 p.m., with apgar scores of 1/4/7/8 at 1, 5, 10 and 15 minutes, respectively.
Soon after delivery, the minor plaintiff developed multiple medical problems indicating severe hypoxic ischemic encephalopathy also known as brain damage.
After discharge, the baby was diagnosed with cerebral palsy, acquired microcephaly and spastic quadriparesis.
Today the child continues to have seizures, feeds by G-tube, cannot speak, cannot sit unsupported and is confined to a wheelchair.
During the course of litigation, the defendants said that the standard of care allowed for a “Trial of Labor” or oxytocin challenge test (OCT) in the setting of a non-reactive non-stress test and abnormal BPP.
The defense also alleged that the child's injuries occurred within 12 to 24 hours before the mother’s arrival to the hospital on July 15, and that earlier delivery would not have improved the baby's condition at birth.
Trial was schedule to begin on June 2, 2008, but was settled for $4.85 million before that time.
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