OTHER USEFUL INFORMATION:
The plaintiff, a 37 year-old woman, became pregnant with her second child. During her pregnancy, she presented to the defendant OB/GYN for periodic, routine evaluations. By the 37th week, the “fundal height” was not tracking consistent with the gestational age of the fetus. According to the defendant’s own deposition testimony, when a discrepancy exits between the fundal height and the gestational age that is two centimeters or greater in the absence of any other known explanation for the discrepancy, the requisite standard of care required that further evaluation and testing be performed. In this case, the discrepancy was greater than two centimeters after 37 weeks, but the defendant testified that despite the lack of any notes in the record explaining her investigation, the discrepancy must have been explained because she did not order any further testing. The mother’s medical chart, however, provided no description by the defendant as to her explanation for the discrepancy that would have warranted foregoing further testing.
Weeks later, when the mother was 39.5 weeks, she reported decreased fetal movement to her doctor. Her treating doctor was on vacation and another doctor in the practice group evaluated her. A Fetal Heart Rate Monitor was attached to the mother, which the fetus was non-reactive with poor variability. After being on the monitor for more than 50 minutes, the covering doctor advised the mother to drive herself to a nearby Boston emergency department for evaluation.
Upon the mother’s arrival to the emergency department, she was sent to Labor and Delivery where she underwent further fetal heart rate monitoring, which confirmed the hostile uterine environment for the fetus and an emergency cesarean delivery was performed.
The fetus was delivered in serious condition and was not breathing. Pediatricians took over the care of the newborn and the baby began shallow breathing. He was transferred to the Transitional Care Unit within the hospital, but when his respiratory status did not improve, he was transferred to the NICU and intubated. Blood work from the umbilical cord confirmed metabolic acidosis, a potential life threatening condition wherein high levels of acid are found in the blood, often caused by decreased oxygen over an extended period of time.
The baby was ultimately diagnosed with dystonic cerebral palsy and he is unable to speak, walk, care for him self in any way, or eat. He is and will remain totally dependent on his parents for his basic needs. In addition to claims brought on the minor’s behalf, claims for loss of consortium were also alleged on behalf of the parents.
At trial, the plaintiff’s experts were prepared to testify that the treating OB/GYN deviated from the standard of care when she failed to conduct any further testing when there was a 2-3 cm. discrepancy between the fundal height and gestational age of the fetus. Plaintiffs’ experts were prepared to testify that had she performed further testing, placental dysfunction would have been revealed and early delivery would have been ordered which would likely have spared the baby his life altering conditions. The plaintiff’s experts were also prepared to testify that the covering doctor created an unnecessary delay in referring the mother for further testing and prompt delivery. The plaintiffs’ experts were also prepared to testify that the pediatricians following delivery, contributed to the baby’s brain damage by failing to ensure adequate oxygenation post-delivery by prompt transfer to the NICU and intubation.
The defendants’ experts were prepared to testify that the defendant doctor adhered to the standard of care because further testing was not necessary because the treating OB/GYN satisfied herself that the discrepancy was explained by the position of the baby. The defendants’ experts were also prepared to testify that the covering doctor did not deviate from the standard of care, but rather acted appropriately given the facts she was presented with during her visit with the mother. Finally, the defendants’ experts were prepared to testify that the pediatrician was heroic in saving the baby’s life following delivery, and that her actions were appropriate given the baby’s response to treatment. Also, the defendants’ experts would have argued that the effects of the lack of oxygen to the fetus were established before the baby was born and nothing that the pediatricians did or failed to do caused or contributed to his permanent brain damage.
The case settled after one full day of mediation and one month prior to trial.
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