Medical Malpractice News
When Waiting Wreaks Havoc
How Delayed C-Sections Can Cause Serious Injury
When Victoria Upsey arrived at Pottstown Memorial Medical Center on a Sunday afternoon in August of 2008, the 34-year-old expectant mother knew something wasn’t right. Her baby wasn’t due for another month, but she was experiencing “constant cramps,” according to court documents, and her abdomen was tender to the touch.
Upsey was showing signs of a placental abruption, a serious pregnancy complication in which the placenta detaches from the uterine lining, interrupting the flow of blood and oxygen to the baby. The situation went from bad to worse when nurses were unable to detect a fetal heartbeat. Minutes later, an obstetrician performed a bedside ultrasound and confirmed the nurses’ findings: The fetal heartbeat was still. Upsey’s baby was dead.
The distraught mother was given a shot of Demerol for pain and cried with her family as she waited for an ultrasound technician to arrive to confirm the findings—but when that technician finally showed up more than an hour later, Upsey received some shocking news. Her baby was actually alive, with a heart rate in the 80s.
Eighty-one minutes after first exhibiting signs of fetal distress, Upsey’s daughter, Parrys, was finally delivered by emergency cesarean section. The floppy and lethargic infant had to be revived and transported to another hospital to receive head cooling treatment, a therapy that sometimes improves the outcome for infants who are deprived of oxygen at birth.
It did little to help. Because of the lack of oxygen during birth, Parrys suffered a devastating brain injury resulting in a severe form of cerebral palsy known as spastic quadriplegia. She will never speak or walk and will require 24-hour care for the rest of her life.
Saving Lives Through Surgical Delivery
Nearly one-third of the 4 million babies born in the United States each year are delivered by cesarean section, a surgical procedure that requires an incision through the skin and abdomen and through the wall of the uterus.
Like any surgery, a C-section comes with certain risks and the dramatic rise in C-sections over the past several decades has raised concerns that cesarean deliveries are overused in the United States. As such, unnecessary, or “on-demand” C-sections—such as those scheduled for convenience sake, or simply to avoid the pain of a vaginal delivery—are controversial. But when they’re medically indicated, C-sections can be lifesaving for mom and baby.
Often, the procedure is planned in advance when a physician identifies a potential risk associated with vaginal birth. For instance, women who’ve previously delivered by C-section or have had other previous uterine surgery may be advised to have a C-section. Expectant mothers with infectious diseases like HIV or genital herpes that they could pass on to their babies are also appropriate candidates for a cesarean delivery, as are some women with certain health risks, such as high blood pressure or diabetes.
Other situations that can warrant a C-section include: placenta previa, a condition in which the placenta blocks the cervix; cephalopelvic disproportion (CPD), which occurs when the unborn baby’s head is too large to pass through the mother’s pelvis; and abnormal fetal positioning, such as a feet or bottom-first breech presentation or a sideways position known as “transverse lie.” Though twins can often be delivered vaginally, the majority of triplets, quads and other multiples typically require a C-section.
Not all C-sections can be planned ahead. Some are performed on an emergency basis when unexpected problems occur. These unanticipated problems can include everything from a prolapsed umbilical cord, where the cord drops through the open cervix into the vagina ahead of the baby, to a placental abruption like Upsey experienced. A prolonged labor, in which the cervix does not dilate enough or the baby does not descend, is another frequent cause for an unexpected C-section. Suspected fetal distress, as evidenced by non-assuring heart rate changes, is one of the most common reasons a C-section is performed. Another common emergency is shoulder dystocia, where an infant’s shoulder becomes lodged against a mother’s pubic bone, squeezing the baby’s chest and umbilical cord and causing the infant’s oxygen levels to plummet.
Whatever the reason, when an emergency situation calls for a C-section, time is of the essence. The American College of Obstetricians and Gynecologists and the American Academy of Pediatrics recommend that any hospital responding to “an obstetric emergency” should “have the capability of beginning a cesarean delivery within 30 minutes of the decision to operate.” Some situations—especially those involving life-threatening fetal distress—may require an even more rapid delivery to prevent hypoxia, an inadequate supply of oxygen to the brain.
Unfortunately, when emergent C-sections are delayed, injuries can occur. Delaying the procedure, even by just a few minutes, can result in Hypoxic-ischemic encephalopathy (HIE), a brain injury that can range from mild to severe, and is sometimes fatal. In fact, birth asphyxia accounts for 23% of neonatal deaths worldwide. While some injuries are evident immediately, others may not be apparent for years.
What is HIE?
Hypoxic-ischemic encephalopathy (HIE), sometimes called birth asphyxia, refers to a brain dysfunction caused by a lack of blood flow and oxygen to the brain. Simply put, when the brain is deprived of oxygen, brain cells are injured. But an HIE injury doesn’t occur all at once like the impact from a car crash. Rather, it happens in stages.
First, there is the initial insult of oxygen and glucose deprivation to the brain when blood flow is interrupted for some reason. This “initiates a cascade of biochemical events leading to cell dysfunction and ultimately to cell death,” according to experts. The second injury stage occurs once the cerebral blood flow is restored, setting off inflammatory changes that further damage the brain cells. This second stage, known as reperfusion injury, lasts from 6 to 48 hours after the initial injury.
The number of children affected by this serious and often disabling condition is staggering. HIE affects between 3 and 20 in every 1,000 live births, according to the University of Florida Health, and occurs in up to 60% of live pre-term births.
Fifty to 60% of newborns suffering from severe HIE will die within the first month, making it the third leading cause of neonatal death after infection and pre-term birth. Approximately 75% percent of babies who survive a severe HIE injury develop significant brain damage and lifelong disability marked by mental retardation, cerebral palsy and seizures. Between 25% and 75% of infants with moderate HIE will have a severe handicap or shortened lifespan. Most babies with mild HIE injuries will recover with no disability.
Unfortunately, there is no definitive treatment for babies suffering from HIE and management usually consists of prompt resuscitation and supportive care—such as controlling seizures, providing mechanical ventilation for babies unable to breathe on their own, sustaining kidney and liver function, and supporting the heart and blood pressure.
The only brain-specific therapy that has been shown to improve HIE outcomes in some cases is therapeutic hypothermia—which involves cooling the baby’s brain or entire body a few degrees below normal body temperature for several days. Brain cooling therapy should be initiated within 6 hours of birth and can be accomplished by using a cooling cap or helmet that’s placed on the infant’s head or by placing the baby on a special cooling blanket. After the 72-hour cooling period, infants are slowly rewarmed over a 4-hour period to prevent complications that can occur with rapid rewarming.
The promising therapy is far from a complete cure-all. Only one in eight babies with moderate to severe HIE will respond to cooling therapy, according to the University of Florida’s Florida Neonatal Neurologic Network. That’s why the best approach to HIE is prevention—namely avoiding the errors that can lead to neonatal asphyxia.
Missteps and Failures
In many cases, C-section delays leading to birth injuries like HIE can be attributed to negligence or medical malpractice. These medical errors can have a variety of causes, ranging from missing important prenatal indicators to improper monitoring of mother and child to understaffing at the hospital. There have even been instances in which C-sections have been delayed because of concerns over cost and whether insurance will cover the procedure.
In the Upsey case, a confluence of failures allegedly contributed to the delay in her C-section and the brain injury her baby sustained. For one, the ultrasound machine used at Upsey’s bedside that failed to detect her baby’s heartbeat was allegedly outdated and improperly maintained. At trial, the hospital’s risk manager reportedly testified that the ultrasound machine in question had not been serviced for more than a decade, despite recommendations by the manufacturer that the equipment be serviced annually.
Upsey also alleged that the hospital was negligent for not having an ultrasound technician present in the hospital on a Sunday—and that if one had caught the doctor’s misdiagnosis more quickly, the outcome might have been very different for her daughter Parrys.
The Philadelphia jury that heard the malpractice case apparently agreed and awarded the Upsey family $78.5 million in damages.
Sadly, there are many cases where mistakes are made and C-section deliveries are delayed, or are not performed, with devastating results.
Nineteen-year-old Marla Dixon, a first-time expectant mother from Miami Gardens, never dreamed of the disaster that would unfold when she arrived at the North Shore Medical Center in Miami in labor in the early morning hours of December 2, 2013.
In fact, Dixon had not been diagnosed as “high risk” and by all accounts had been experiencing a normal pregnancy—but within hours of arriving at the hospital, Dixon’s baby was showing signs of distress.
The first inkling of trouble, according to court records, was at around 1:25 p.m. when the baby’s heart rate dropped to 80 beats per minute. A normal fetal heart rate ranges from 120 to 160 beats per minute, and decelerations in the heart rate can signal that the baby is not getting enough blood and oxygen.
According to court records, the nurse caring for Dixon stopped the patient’s Pitocin drip—an appropriate response because the drug, which hastens contractions, can also cause fetal distress—and summoned Dr. Ata Atogho, the obstetrician on call. Atogho testified that upon arriving at Dixon’s bedside some 16 minutes later, he shifted the patient to her left side and administered IV fluids—again, appropriate actions, which are intended to increase the flow of blood and oxygen to the fetus.
But in what other medical expert witnesses claim was the beginning of a string of mistakes, Atogho subsequently restarted the Pitocin and continued to try and deliver the baby vaginally, allegedly in spite of “ominous” fetal heart tracings and Dixon screaming to “cut me, cut me.”
Restarting the Pitocin was just about the last thing you want to do in that situation, testified Dr. Martin Gubernick, an OB/GYN and clinical instructor at the medical college of Cornell University and an expert witness for the plaintiffs. Doing so was “absolutely below the standard of care” and subjected the baby to consistent hypoxia, he told the court.
Atogho also erred, Gubernick said, by attempting to deliver the baby three times with a vacuum device known as a “Kiwi.” That's because Dixon’s baby was in an occiput posterior position, a position where the baby is backwards and looking up at the sky, and it is difficult to place a Kiwi when a baby is in that position, according to Gubernick. Atogho would have been better served by using forceps, Gubernick testified.
The doctor’s other alleged missteps included repeatedly leaving Dixon’s room to treat another laboring patient, and, at one point taking an eight-minute phone call from his stockbroker. In fact, Atogho wasn’t even present when the infant finally emerged, face down, blue and limp.
At first, Dixon thought her baby boy was dead. But with aggressive resuscitation, the baby was revived and transferred to Miami Children’s Hospital, where he would stay for nearly two months. Doctors there told Dixon and the baby’s father that Earl Jr. had suffered severe brain damage from a lack of oxygen at birth. But Dixon blamed herself. Dr. Atogho, she testified, had admonished her the day after she gave birth, telling her she “should have pushed harder.”
In court, Atogho attempted to lay all the blame on his patient, alleging that he had told Dixon that she needed a C-section or her baby would suffer brain damage, but that Dixon had refused. Multiple other witnesses, however, contradicted Atogho’s account, and said the doctor never offered the young woman a C-section. The labor and delivery nurse who took care of Dixon further testified that Atogho had falsified Dixon’s medical chart, writing in it that she had “declined” a C-section when in fact he’d never offered one. When the nurse confronted Atogho about it, he allegedly replied “it’s her first baby and it was right there.”
After a four-day bench trial in April of 2017, a federal judge found that Atogho had negligently refused to perform a C-section when it was required—an error that “caused Earl Jr. to suffer from excessive blood/oxygen deprivation leading to hypoxic ischemic encephalopathy.” The judge further wrote in his 52-page ruling that Atogho “tried to cover his tracks” by inserting a false note in Dixon’s chart—an act that “reflects consciousness of guilt.”
It’s taxpayers, meanwhile, who will foot the bill for the $33.9 million malpractice judgment in the case because Atogho was employed at the time by a federally funded clinic that services many of Miami’s low-income and uninsured residents.
Delays in the treatment of fetal distress are the most common allegations in obstetric malpractice claims—but there is a useful warning system that can alert clinicians when a baby may be in trouble. That tool is electronic fetal monitoring (EFM) and it allows for a visual interpretation of the fetal heart rate (FHR) in response to uterine contractions. By analyzing patterns in EFM tracings, the healthcare team can better assess how well the fetus is handling the stresses of labor and whether the baby is getting enough oxygen.
To help clinicians assess these patterns and know when to intervene, a three-tier interpretation system was developed. Under this system, Category I tracings are considered normal. The baby’s baseline heart rate is between 110 and 160 beats per minute, and exhibits moderate variability from that baseline of between 6 and 25 beats per minute. This could effectively be considered a “good” tracing, and no action is required.
At the other end of the spectrum, are Category III tracings, which are markedly abnormal, or “bad.” Ominous patterns in Category III tracings include sinusoidal waves, which appear when the fetus is hypoxic, metabolically acidotic or asphyxiated, or flat tracings with no variability, which can also indicate neurologic damage. These tracings require immediate action.
Category II tracings are a bit trickier. They are atypical, but they don’t neatly fit into either Category I or Category III so they are considered “indeterminate.” Patients with these tracings require frequent evaluation and surveillance.
As some experts note, electronic fetal monitoring is “not a crystal ball” and one of its drawbacks is the high rate of false positives. In fact, some studies have shown that most irregularities detected by continuous fetal heart monitoring, particularly those in the last hour of labor before delivery, are “false alarms.” As a result, some physicians and nurses may become complacent and ignore non-reassuring FHR patterns.
Guidelines issued by the ACOG recommend that FHR tracings be reviewed “frequently” when used in labor and delivery. In patients without complications, the tracings should be reviewed every 30 minutes during the first stage of labor and every 15 minutes during the second stage. In patients with complications, such as preeclampsia, tracings should be reviewed every 15 minutes during the first stage of labor and every 5 minutes during the second stage.
Despite these guidelines, some medical doctors and nurses still fail to carefully monitor their patients or improperly interpret the readouts. As a result, they miss early signs that the baby is in crisis and miss the opportunity to quickly deliver the baby by an emergency C-section.
That’s allegedly what happened to Lisa Ewing in 2004, when she arrived at the University of Chicago Medical Center at two in the morning, 40 weeks pregnant and worried because her baby wasn’t moving as much as he had earlier in her pregnancy. As Ewing was evaluated in the hospital’s triage unit, test after test indicated fetal distress—but medical staff at the hospital waited approximately 12 hours to perform a C-section, Ewing alleged.
When Ewing’s son, Isaiah, was finally delivered, he wasn’t breathing and had to be revived and placed on life support. He had suffered a catastrophic hypoxic brain injury resulting in cerebral palsy. He needs round-the-clock care and assistance with basic tasks, such as bathing, dressing and eating.
While the University of Chicago Medical Center contends that Isaiah’s injuries were the result of an infection in utero, and denies any wrongdoing, a jury agreed with Ewing that the hospital was negligent in failing to recognize signs of distress and order an emergency C-section, and found in favor of the son and mother for $53 million. It was the largest ever birth injury verdict in Cook County, Illinois, but was later reduced by about 2% to correct a technical error.
Nothing, unfortunately, can undo the damage, pain and suffering of children and families grappling with HIE or other injuries caused by a delayed C-section. Obtaining financial compensation from those at fault can go a long way in relieving some of the burdens associated with life-long care of a disabled child, which can easily cost into the millions.
In 2015, a federal judge awarded a California family $9.6 million in damages after deciding that Micaela Palacio’s doctor “took an unreasonable risk” and waited too long to call for a C-section during an arrested labor. As a result, Palacio’s daughter suffered a hypoxic brain injury and will never speak or walk. She is also blind, suffers from seizures and is fed through a tube in her stomach. Like many children with severe cerebral palsy, she will require 24-hour daily care from a licensed vocational nurse for as long as she lives. Tragically, she has a significantly diminished life expectancy, and is not likely to live past her early 20s.
While some malpractice suits go to trial, many are settled out of court. In 2013, a military hospital at Ft. Hood in Texas settled a birth injury lawsuit for $6.5 million. Kassie Rivera, the mother who filed the lawsuit, alleged that her son sustained permanent brain damage from HIE in 2008 after the hospital failed to adequately interpret his fetal heart rate and continued to administer Pitocin “in the face of fetal heart rate abnormalities.”
Had the doctors intervened with a timely C-section, Rivera alleged, her son, Haiden, would not have been injured. Because of his HIE, Haiden can’t speak or walk and is fed through a tube.
While the court route provides potential legal recourse to those who’ve been injured by a delayed C-section, it should be noted that bringing a suit can be difficult in some states depending on the circumstances. In Florida, for instance, certain types of birth injury claims must be addressed under the Florida Birth-Related Neurological Injury Compensation Act (NICA), a no-fault compensation program created by the Florida Legislature in 1988 to cut down on medical malpractice lawsuits.
The plan provides a “wide range of benefits to a child who has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury during labor, delivery, or in the immediate post-delivery period,” according to NICA’s website. Those benefits include a one-time $100,000 cash award to the injured infant’s parents—or a $10,000 benefit if the infant is deceased. The plan also provides necessary and reasonable medical expenses that aren’t already covered by the state or federal government or private insurers.
Unlike the courts, NICA does not compensate victims for non-economic losses like pain and suffering and there are no punitive damages. Moreover, some critics believe compensation provided by NICA is not enough and have alleged that the organization can be difficult to work with. Florida is one of only two states in the nation, along with Virginia, that has created an alternative to the traditional tort system to deal with certain birth injury claims.
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Florida's unique NICA process is just one of many potential legal hurdles which a family coping with a C-section related injury may encounter. Successful navigation of these kinds of obstacles often requires sophisticated legal maneuvering. The Newsome Melton team and its experienced litigators are always happy to consult, for free, with any family reeling from a birth injury to help them assess their options for moving forward.