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Plaintiffs claim earlier C-section would have prevented brain injury – Defense Verdict

Virginia Lawyers Weekly//October 19, 2015

Plaintiffs claim earlier C-section would have prevented brain injury – Defense Verdict

Virginia Lawyers Weekly//October 19, 2015

The plaintiff mother, 39 weeks pregnant, presented to the hospital for an elective induction of labor on the evening of Aug. 9, 2011. Electronic fetal monitoring was initiated upon admission and continued throughout labor. The defendant OB/GYN treated the mother. Cervidil was placed and the patient was monitored throughout the night. Her membranes ruptured spontaneously at approximately 6:10 a.m. on Aug 10. Pitocin was initiated and her labor progressed throughout the day. She requested an epidural, which was placed at approximately 12:15 p.m.

The defendant OB/GYN treated the mother again beginning the evening of Aug. 10. Shortly before 11:00 p.m., the defendant physician was notified that the mother had an elevated temperature and the fetus was experiencing tachycardia. The defendant ordered antibiotics. At 12:09 a.m. on Aug. 11, the defendant was notified by the nurse that the mother’s temperature had decreased and she was “anterior lip.” The patient became fully dilated at approximately 1:40 and began pushing with her nurse. The defendant physician was notified at approximately 2:00 a.m. that the fetus was experiencing continuous variable decelerations, more pronounced with pushing, with decreased variability. The defendant physician advised the nurse that the patient should continue to push while he viewed the tracing from the call room. At approximately 2:26 a.m., the defendant arrived at the mother’s bedside to assess the patient. He noted that the fetus was experiencing deep and prolonged variable decelerations with pushing that did not improve with position change or administration of oxygen. Due to the estimated size of the fetus, he was concerned there would be a shoulder dystocia if he attempted an operative vaginal delivery. He recommended a Cesarean section and the mother agreed. The defendant called a C-section at 2:28 a.m. and the plaintiff infant was delivered at 2:52 a.m.

The infant was initially described as floppy and cyanotic with irregular respirations. His APGARS were 5 and 7. His cord blood pH was 7.08, his base deficit was -15, he had a temperature and his white blood cell count was elevated. He was treated with facial CPAP and given antibiotics. At approximately 10 hours of life, he experienced seizures. He underwent a CT scan and was transferred to another hospital. He was treated in the NICU for 15 days and then discharged home. He was later diagnosed with cerebral palsy. At the time of trial, the infant plaintiff was 3 years old. He was reportedly able to walk and run, but had some right sided weakness, especially in his hand, severe expressive language delay, microcephaly and global developmental delays.

Plaintiffs’ experts claimed the infant suffered an acute hypoxic ischemic injury and delivery by C-section by approximately 1:30 a.m. or 1:45 a.m. on Aug. 11 would have avoided the infant’s brain injury. Plaintiffs presented a life care plan for the infant totaling between $6.6 and $7.1 million. The plaintiffs also attempted to call Robert Jackson, LMFT, a vocational rehabilitation expert, to testify as to the infant’s future loss of earning capacity. However, the court sustained the defendants’ objection to the testimony, finding Jackson’s testimony would have been too speculative.

Defendants’ two standard of care experts testified that the defendant physician fully complied with the standard of care in treating the mother and infant. Defendants’ causation experts disputed plaintiffs’ causation theory and opined that the infant plaintiff did not meet all the ACOG criteria for an acute hypoxic ischemic injury. Further, defendants’ neuroradiology expert testified that, based on findings on the CT scan taken at 10 hours of life, the infant’s brain injury most likely occurred at the latest at approximately 6:40 p.m. on Aug. 10, seven hours before plaintiffs’ experts had opined that the defendant had breached the standard of care and caused injury to the mother and infant. After seven days of trial, the jury returned a verdict in favor of the defendant doctor and his practice.



Type of action: Medical malpractice – birth injury
Injuries alleged: Serious physical and neurological injuries including brain damage (infant); serious physical injuries, emotional and mental anguish (mother)
Court: Hanover County Circuit Court
Case no.: CL12000981
Tried before: Jury
Judge: J. Overton Harris
Date resolved: April 14, 2015
Special damages: Life care plan – $6,600,000 to $7,100,000; prior medical bills
Demand: $13,000,000 ($10,000,000 for infant; $3,000,000 for mother)
Offer: None
Verdict or settlement: Defense verdict
Attorneys for defendant: Kimberly A. Satterwhite and Ashley Dobbin Calkins, Richmond
Insurance carrier: Doctors Company


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