C-Section was ordered an hour too late, birth injury plaintiff claims – Defense Verdict

Plaintiff contended that the defendant OB/GYN failed to appropriately monitor her mother’s labor, recognize and respond to fetal distress, and timely order a C-section, which resulted in anoxic encephalopathy with severe and permanent neurological injury and cerebral palsy. The primary focus was on the fetal heart tracings between 10:30 p.m. on Sept. 8, 2003, until the baby was delivered at 12:37 a.m. on Sept. 9.

Plaintiffs only expert on standard of care, Dr. Bottiglieri of Baltimore, testified that there were cumulative periods of time when the fetal heart tracings were non-reassuring with variable decelerations and fetal tachycardia, with some severe variables and that the baby suffered “numerous hypoxic insults.” He testified that at 10:30 p.m. the baby was in trouble, and that at 10:40 p.m. it was obvious that a C-section was needed and was required by the standard of care. An emergent C-section was ordered at 11:55 p.m.

Dr. Bottiglieri testified that if the baby had been delivered by 11:00 p.m. she would have sustained no permanent injury and that the fetal heart tracings required an immediate STAT C-section and not an emergent 30-minute C-section. Dr. Edward Koch, an OB/GYN from Arlington, testified on causation, to the same conclusion that the baby would have sustained no permanent injury had she been delivered by 11:00 p.m. Neither expert had any objective evidence to counter the normal blood cord gas of 7.2 pH, or the APGAR scores of 9 at five and 10 minutes, under the well-accepted ACOG monograph on Neonatal Encephalopathy and Cerebral Palsy, which currently serves as the consensus basis for the determination of causation of hypoxic ischemic encephalopathy and cerebral palsy.

Dr. Zimmerman, plaintiff’s expert in neuroradiology, testified that the plaintiff suffered a hypoxic ischemic brain injury as a result of oxygen deprivation in utero leading to reduced blood flow to the brain at some point between 10:23 a.m. on Sept. 8, and 1:20 p.m. on Sept. 10. He arrived at this time interval by working backwards 24 hours from the time of the CT scan, which was done on Sept. 9, as well as working backwards 24 hours from the MRI, which was done on Sept. 11.

The defense countered Dr. Zimmerman’s testimony and the causation testimony of Drs. Bottiglieri and Koch through their neonatology experts Dr. Robert Dillard from Winston Salem, N.C., and Dr. Jay Goldsmith from New Orleans. Both testified that the plaintiff did not suffer an anoxic event leading to brain injury. Her condition at birth including, but not limited to, her arterial blood gas of 7.2 and APGAR scores of 1, 9, and 9 were not consistent with hypoxic ischemic encephalopathy and/or an anoxic event during labor. They further testified that the fetal heart tracings did not show evidence of fetal hypoxia and were not consistent with hypoxic ischemic encephalopathy or partial prolonged asphyxia during labor. Rather, her brain injury more likely than not occurred prior to the onset of labor and was likely caused by a fetal and/or maternal condition including, but not limited to, a viral encephalopathy.

Dr. Dillard further testified that plaintiffs brain injury more likely than not occurred prior to the onset of labor and was caused by a maternal enterovirus infection that caused an injury to the brain, which became a seizure focus after delivery. The post-delivery seizures, which were not due to any hypoxic event, resulted in additional manifestations of the prior brain injury. This explained Dr. Zimmerman’s neuroradiology findings from the CT scan and MRI.

The defense called two standard of care experts, Dr. David Merrill, an OB/GYN and maternal fetal medicine specialist from Madison, Wis., and Dr. Eric Swisher, an OB/GYN from Roanoke. They both testified that the defendant properly managed the mother’s labor and delivery throughout the day and night the emergent C-section was ordered. They further testified that the defendant called for and performed a C-section on the mother in a timely, safe and appropriate manner. There was no indication, based on the fetal heart tracings, for the defendant to call for a C-section any earlier than she did. Further, there was no need for a STAT C-section inasmuch as there was no evidence of ongoing or impending metabolic acidosis.

Both experts also refuted testimony from plaintiff’s experts that the fetal heart tracings were non-reassuring with late and variable decelerations, signs of fetal distress and fetal tachycardia. In the defense case, the defendant OB/GYN did an excellent job in explaining her actions and thought process.

The defense also called Dr. Richard Depp, an OB/GYN and maternal fetal medicine specialist, one of the pioneers in the development and interpretation of fetal heart monitors and tracings, to testify about his interpretation of the fetal heart tracings. He completely refuted the plaintiff experts’ interpretation of the strips. After an eight-day trial and deliberating for several hours, the jury returned a defense verdict. No post-trial motions were made and no appeal was filed.

[13-T-006]

Type of action: Medical malpractice
Injuries alleged: Failure to perform timely C-section, resulting in a profound anoxic brain injury and cerebral palsy
Court: Washington County Circuit Court
Tried before: Jury
Judge: Sage Johnson
Date: Oct. 10-19, 2012
Demand: $1,700,000
Offer: None
Verdict or settlement: Defense verdict
Attorneys for defendants: Walter H. Peake III, Roanoke; Scott M. Stevenson and Stacy H. Stevenson, Charlotte, N.C.
Insurer: Medical Protective Company