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A 41-year-old physician and mother of one went into labor


A 41-year-old physician and mother of one went into labor after an uncomplicated pregnancy. When notified at the onset of labor, a specialist in obstetrics and gynecology who had delivered the woman’s first child directed the expectant parents to the Physicians’ Hospital.

After admission to the hospital at 1:30 A.M., the patient was brought to the labor room area. Although no house physician performed an examination of the patient, a Nurse monitored the progress of labor, noting the frequency of contractions and the fetal heart rate, and performed a vaginal or rectal examination. At 1:35 A.M. the nurse telephoned the attending obstetric gynecologist to notify him of the patient’s admission and progress in labor. The hospital chart indicates that the mother’s contractions were every three minutes and moderate; and the fetal heart rate was regular. Over the telephone, the attending physician prescribed several drugs, including a pain killer, which the woman’s expert witnesses at trial conceded did not contribute in any way to the infant’s injuries.

The attending Nassau physician arrived at the hospital and performed a vaginal examination of the patient. He found that the cervix was fully effaced and dilated, meaning that the patient had progressed to the second stage of labor. He also determined that contractions were four minutes apart (this just after administration of the pain killer) and that the station was minus two (meaning that the fetal head was two centimeters above the pelvic spines which form the entrance to the birth canal). Immediately after completing the examination and without directing an X-ray pelvimetry (to rule out the possibility of cephalopelvic disproportion, i.e., disproportion between the size of the presenting part of the fetus, usually the head, and that of the mother’s pelvis), he ordered the administration of an oxytocin, to speed labor, because, as he testified at trial, contractions had begun to slow down and he was dealing with a desultory labor (dystocia). The hospital records, however, took no note of uterine dysfunction and indeed noted that labor was good and active. In any event, within five minutes of the examination, the oxytocin, which experts at trial universally agreed can cause compression of the umbilical cord by virtue of the uterine compressions it induces, and can impede the flow of blood and oxygen to the fetus, was hanging over the bed being infused intravenously to the expectant mother.

During the steady drip of eight to 10 drops per minute that continued up to delivery more than one hour later, three notations were recorded in the hospital record relating to the patient’s contractions and the fetal heart rate. According to the record, just after administration of the oxytocin, contractions were two to three minutes apart and moderate, and the fetal heart rate was 132; at 2:30 A.M., contractions were still moderate and coming every two to three minutes, and the fetal heart rate was 136; and at 2:45 A.M. the patient had contractions and was and the fetal heart rate was 136. Apparently these were the only recorded entries, all made by the Nurse who, while she claimed that she monitored the patient every 10 minutes, nevertheless admitted at trial that she was in and out of the delivery room as she prepared the patient for delivery.

As for the attending physician, he maintained that up until 2:45 A.M. he monitored the patient many times (notwithstanding the fact that the Suffolk Code required a physician to maintain continuous observation when a potentially dangerous drug like oxytocin was administered). Indeed, upon further examination, the doctor admitted that at this time he went to the cafeteria on another floor, where he talked with the attending anesthesiologist, and the patient’s husband, a second-year resident physician. The attending physician stated that he was in the cafeteria for five minutes, which estimate later became five to 10 minutes, and he eventually conceded that it could well have been 20 minutes. When he left the cafeteria, he did not go back to the labor room but instead monitored the patient from the hall across from the labor room.

At approximately 3:00 A.M., the woman was wheeled to the delivery room with oxytocin still being administered to her. The anesthesiologist gave her general anesthesia. During the 15 minutes or so in the delivery room prior to birth, the Nurse did not monitor the fetal heart rate. The anesthesiologist who admitted that it was his responsibility to monitor the fetal heart rate while the mother was in the delivery room so as to be able to correct any condition of hypoxia, the deprivation of oxygen to the brain, admitted on cross-examination that he did not listen to the baby’s heart rate during the time it was in the mother’s womb.

The infant was born by normal spontaneous delivery but in obvious respiratory distress. The hospital record noted that at one minute after birth the baby had absolutely no muscle tone, no reflexes, no respiration, slight cyanosis (bluishness) and a heart rate of 160, resulting in an Apgar score of roughly 3 (optimal 2 for each component, maximum score of 10). The attending physician who testified that resuscitation was beyond his field of expertise, cut the umbilical cord and directed his attention to delivering the placenta (found to be normal), as well as repairing the episiotomy. He turned the care of the child over to the anesthesiologist and the Nurse.

The anesthesiologist maintained that after taking the Apgar score one minute after birth, he suctioned the baby’s airway with a laryngoscope to clear it of obstructions. Although qualified to insert an endotracheal tube, he began, anywhere from one to two minutes after birth, resuscitation by means of an ambubag, comprised of a mask that fits over the infant’s mouth and a tube connected to the oxygen supply. According to him, he placed the baby on the mother’s chest, stood at the head of the delivery table, reached over the mother and with one hand holding the child, used the other hand to hold the mask on the child’s face, to squeeze oxygen into the child’s mouth, and to monitor the resuscitative efforts. The doctor’s notations in the hospital record indicate that the child, suffering from protracted apnea (absence of respiration), began crying four minutes after birth, at 3:20 A.M. He testified that the infant breathed two to three minutes before that. He allegedly cared for the infant between two and 10 minutes, after which the baby was placed in an incubator. On cross-examination, however, the doctor claimed that the infant was in the incubator during all his resuscitation efforts. He denied ordering the drug nalline for the child (although his counsel conceded as much on summation), and could not remember giving the nurse any instructions as to the resuscitation of the child.

On the other hand, according to the Nurse who had no special training in resuscitation, it was she who did the initial suctioning with a mucous trap, then placed the child in a crib, and within a minute and a half, administered oxygen under pressure to him. The oxygenation, which she claims to have done, not with an ambubag, but with a completely different device, produced no initial response but was continued until the infant started shallow irregular respiration.

The nurse testified that she handled the device to administer the oxygen except for the time she left the delivery room, at the attending physician’s direction, to telephone the pediatrician; only then did the anesthesiologist do anything with respect to the resuscitation of the baby. She also testified that the anesthesiologist ordered her to administer the nalline.

At approximately 4:00 A.M., the pediatrician who had been previously summoned by the Nurse arrived at the delivery room. After eliciting a history, he conducted a complete physical examination of the newborn. According to the hospital record, the examination revealed that the infant’s cry was weak to absent even after stimuli, the muscle tone was poor, the heart was regular, the reflexes were poor, and the color was fair. The pediatrician noted that the child was suffering from tremors of the lower and left upper extremities. The doctor also noted that there was nasal flaring, indicating to him that the baby was trying to get more oxygen. At three places in the hospital chart, he noted that he suspected the child’s problems may have been caused by hypoxia, or lack of oxygen to the brain. The contemporaneous tests he performed, however, revealed nothing wrong with the placenta, no abnormalities in the umbilical cord, no infectious process, and no metabolic imbalance which would account for the child’s birth injury.

At 7:30 A.M., the infant was transferred to New York Hospital. The infant was still receiving oxygen when he was transferred, and the final diagnosis recorded was Generalized Tremors, R/O Hypoxia. The diagnosis upon admission at New York Hospital was perinatal hypoxia.

The complainants instituted the birth injury action contending that the infant’s condition, diagnosed as athetoid cerebral palsy, resulted from medical malpractice by the opponent doctors and the opponent hospital.

The jury subsequently returned verdicts against the attending physician, the anesthesiologist and the hospital and a verdict in favor of the pediatrician. The anesthesiologist was found most culpable (53%), followed by the attending physician (40%) and the hospital (7%). The jury’s assessment of the personal injuries was in the sum of $7,500,000. The opponents’ motions to set aside the verdict on various grounds were denied.

The three opponents inculpated by the jury appeal principally on the ground that the claims of medical malpractice were not supported by the evidence. They also contend that certain errors by the trial court require reversal.

Although a jury verdict is to be accorded great weight, it is well settled that a general verdict in favor of a complainant cannot stand unless all the theories of liability submitted to the jury are sustained by the evidence. If evidence is wanting on one or more of the theories submitted to the jury, the verdict must be set aside for, as the Court of Appeals explained, it is impossible from the general verdict returned by the jury in accordance with the trial court’s instructions to determine that the verdict was not predicated on a finding in complainants’ favor on one of the claims which, for lack of supporting proof, should not have been submitted to it.

There was no medical testimony offered to demonstrate that any alleged negligence on the hospital employee’s part in failing to examine the patient when her own physician was on the way amounted to a departure from the standard of medical care extant in the community.

Even assuming a departure from accepted standards of good practice, mere evidence of negligence would not be sufficient by itself to establish liability. A causal connection between the alleged negligence and the event that produced the harm would also have to be proved. No medical testimony was elicited to suggest that the hospital employee’s failure to perform an internal examination of the woman was a proximate or contributing cause of the infant’s birth injuries.

The appealing opponents contest the sufficiency of the evidence not just as to some of the theories submitted to the jury but as to all the theories submitted to the jury.

Birth complications are painful not only to the parents during the early age of their child, some conditions last a lifetime. When your family is a victim of medical malpractice resulting from negligence of a healthcare provider, consult a Kings County Medical Malpractice Lawyer together with a Kings County Birth Injury Attorney. Stephen Bilkis and Associates can also provide you with Kings County Personal Injury Attorneys and Kings County Injury Lawyers.

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