On May 31, 2011, plaintiff came under the care of the defendants for her pregnancy and began her prenatal care. During the course of her prenatal care, the history, physical examinations and tests showed the plaintiff had an increased risk for encountering shoulder dystocia during a vaginal delivery, including but not limited to maternal obesity, abnormal glucola test for gestational diabetes, fundal heights greater than gestational age, large-for-gestational-age estimated fetal weight and increased abdominal circumference on an ultrasound done at 36 weeks.
On Dec. 28, 2011, plaintiff was admitted to the labor and delivery unit of the hospital for induction of labor due to complications with the pregnancy including increased glucola and a large-for-gestational-aged fetus. During labor, there was a prolonged second stage and the defendant determined that pushing was not helping with fetal descent. Defendant obstetrician decided to use a vacuum to bring the baby down the birth canal for delivery of the head. After delivery of the head, a shoulder dystocia was noted by the defendant and the defendant utilized several different obstetrical maneuvers to attempt to relieve the shoulder dystocia to deliver the body of the baby. Maneuvers included at least three attempts at downward traction on the fetal head away from the impacted shoulder, one of which was described as being moderate traction during the initial attempt to deliver with McRoberts and suprapubic pressure, upward traction, and turning the baby. The baby suffered a severe permanent complete brachial plexus nerve injury resulting in a permanently paralyzed right arm.
The case settled prior to plaintiffs’ designating their experts’ opinions. However, plaintiffs’ experts opined that the defendant (1) failed to obtain informed consent to proceed with a vaginal delivery; (2) failed to obtain informed consent to proceed with a vacuum assisted vaginal delivery; and (3) failed to use no more than gentle traction during delivery once the shoulder dystocia was encountered. It was plaintiffs’ experts’ opinion that a reasonably prudent obstetrician should have suspected a macrosomic baby could have been encountered at delivery due to the risk factors of maternal obesity (plaintiff was maternally obese at 5’ 7.5” with a pre-pregnancy weight of 220 lbs), large for gestational age (LGA) baby based on 36 week ultrasound (baby’s weight was greater than the 97th percentile), abnormal maternal glucose tolerance and the fact that gestational diabetes could not be ruled out.
Plaintiffs’ experts further opined that the physician must discuss the increased risk of the shoulder dystocia and the potential risk to the baby, i.e., a brachial plexus injury, with the mother so the mother can choose which route of delivery she believes would be safest for her baby. Plaintiffs’ experts opined that the defendant deviated from the standard of care by failing to discuss with plaintiff these risks and the option of a C-section as an alternative route of delivery, which would avoid the impaction of the shoulders and avoid the injury to the brachial plexus of the child. The defendant had a duty to obtain informed consent prior to proceeding with a vaginal delivery, which was a continuing duty beginning at the time of the 36-week ultrasound and continuing through induction.
Plaintiffs’ experts also opined that the defendant failed fully to obtain a proper informed consent to proceed with a vaginal operative delivery, i.e. use of a vacuum under the circumstances. It was their opinion that when the patient’s pushing was no longer causing the baby to descend during the second stage of labor, to comply with the standard of care, the defendant was required to recognize that the lack of descent was due to a macrosomic baby that was too big to fit through the pelvis and the defendant was required under the standard of care to discuss the risks/benefits of a vacuum delivery, particularly the increased risk with a suspected large baby of encountering shoulder dystocia and the potential for a brachial plexus injury.
Finally, plaintiffs’ experts opined that the standard of care required a physician delivering a baby to use no more than gentle traction in the face of a shoulder dystocia once the obstetrician believes that a maneuver has released the shoulder. If any resistance during the use of gentle traction is encountered, this would indicate to the obstetrician that the shoulder dystocia still exists, so the traction must cease immediately and new maneuvers need to be instituted to free the shoulder. Plaintiffs’ experts opined that the defendant deviated from the standard of care in the delivery by applying more than gentle traction to the fetal head when the shoulder was still impacted. Plaintiffs’ experts claimed that the severe permanent injury to the baby’s right brachial plexus was caused by the excessive lateral traction utilized by the defendant at delivery and that the injury would have been avoided had a cesarean section been performed.
It was anticipated that the defense would claim that the injury occurred due to the maternal forces of labor before the defendant touched the baby. However, plaintiffs’ experts were prepared to opine that this mechanism of maternal forces injuring a brachial plexus nerve has never been visualized by any physician and, “was an unproven hypotheses based on unreliable statistical studies and unreliable mathematical models having no application.” In addition, the basis of the defense’s theory had no connection to the particularities of this baby in this delivery with this injury.
Plaintiffs’ damage expert opined that the baby suffered from a severe global right brachial plexopathy, which involved C5, C6, C7, C8 and T1 nerve roots and muscles. The injuries were evident from an MRI done and by direct visualization by the surgeon who performed an extensive nerve graft to try to restore some function to the baby’s right arm. Unfortunately, even after the surgical repair, the baby’s right arm had very little movement. Plaintiffs’ expert opined that the injury was permanent regardless of intervention and therapy and that it would affect all activities of daily living, his ability to participate in activities such as leisurely and competitive sports and his employment opportunities; it would have a psychological impact as the child got older.[15-T-069]
Type of action: Medical malpractice
Injuries alleged: Brachial plexus injury
Verdict or settlement: Settlement
Attorneys for plaintiffs: Charles J. Zauzig and Melissa G. Ray, Woodbridge