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New York Appellate Court Finds for Plaintiff in Birth Injury Case

When plaintiff-mother was pregnant, with her fourth pregnancy, she was referred to the State University of New York Health Science Center (hereinafter University Hospital), Perinatal Center of the Department of Obstetrics and Gynecology, as a result of three prior habitual abortions and a suspected bicornuate uterus based upon an ultrasound performed at eight weeks. The expected due date for this pregnancy, based upon plaintiff-mother’s last menstrual cycle, was 18 January 1993. Mary DuPont was 21 years old at the time, weighed 117 pounds, and was 5 feet, 1 inch tall. On 23 July 1992, she began to treat with a doctor, professor and director of obstetrics at the Perinatal Center. The plaintiff-child was born weighing 2,485 grams, below the 10th percentile in weight for her gestational age on 14 January 1993.

Hence, an action for medical malpracticewas brought by the plaintiff-child’s parents, on her behalf. It was alleged that the medical malpractice of the defendant in treating plaintiff-mother, during the course of her pregnancy from 23 July 1992 until plaintiff-child’s delivery on 14 January 1993 by caesarean section where it was noted that a full placental abruption had occurred, had resulted in her suffering intrapartum asphyxia and later being diagnosed with cerebral palsy, mental retardation and a seizure disorder.

A New York Injury Lawyer said four doctors or medical/professional experts testified in this case, and each had a slightly different assessment of the risks associated with plaintiff-mother’s pregnancy, a different understanding of the standard of care and evaluation of the facts.

However, it is fairly undisputed among the experts that the bradycardia and hypoxia in the infant claimant, to the extent presented at birth, resulted in her spastic quadriplegic cerebral palsy, a brain injury (birth injury or birth injury accident).

Was there a medical malpractice?

In a medical malpractice case, it is the claimant’s burden to show that the medical professionals involved either did not possess the requisite knowledge and skill ordinarily possessed by practitioners in the field, or neglected to use reasonable care in the application of the requisite knowledge and skill, or failed to exercise their best judgment. A Westchester County Personal Injury Lawyer said that for liability to be imposed there must be a showing that the medical provider’s treatment decision was “something less than a professional medical determination.” A physician’s duty is to provide the level of care acceptable in the professional community, he is not required to “achieve success in every case and cannot be held liable for mere errors of professional judgment” where a choice is made between medically acceptable alternatives or diagnoses.

The Court has struggled with the issue of liability, as it is clear that the practice of medicine involves ongoing decision making which factors in the patient’s historical circumstances, test results, changes in condition, and the experience of the doctor involved. It is not an exact science, and there is, in any circumstance, a range of acceptable practice.

It must be noted that plaintiff-mother came under the doctor’s (also referred herein as “attending doctor”) care which he termed a very high risk pregnancy because of plaintiff-mother’s prior pregnancy and miscarriage history and her physical anomaly of a bicornuate uterus. Unfortunately for plaintiff-mother, her complications furthered as the pregnancy developed, including two unexplained elevated MSAFP test results, an increasing lag in fetal growth, and ultimately a diagnosis of IUGR on December 21. The attending doctor was an experienced, knowledgeable doctor having cared for many pregnancies complicated by a bicornuate uterus, and there is no established issue with the medical care he provided to plaintiff-mother until she reached 38 weeks gestation. At that point, the issue turns critically to whether the standard of care required the delivery of plaintiff-mother’s fetus at that time, or in any event, before 14 January 1993. Yet, the Court has focused on those critical days before that date, as the doctor had only the facts known at that time and was left, without the ability of prescience, to evaluate the condition of plaintiff-mother and plaintiff-child with his expertise within the accepted level of care.

When focusing on those last days, certain factors are clear and undisputed. This woman had a bicornuate uterus. With any pregnancy with a bicornuate uterus, even one not attached to the septum, there is an increased risk of a placental abruption. Plaintiff-mother had unexplained, significantly elevated MSAFP test results twice. An unexplained elevated MSAFP test result increases the risk for a placental abruption. Placental abruption places both the fetus and the mother at risk of death. Yet it is clear from his deposition testimony that it never occurred to the attending doctor that plaintiff-mother’s bicornuate uterus placed her and her pregnancy at risk of placental abruption and the risk of placental abruption played no involvement in the attending doctor’s decision making regarding the care of plaintiff-mother. Yet, placental abruption and the risk of fetal death are factors the attending doctor acknowledged and the standard of care required be considered.

The fetus was diagnosed with IUGR, having a significant growth lag measuring below the 10th percentile for her gestational age. A diagnosis of IUGR increases the risk of fetal demise. The attending doctor attributed the IUGR to the uterine anomaly which, by all accounts, is then usually the result of placental insufficiency. The doctor never ruled out placental insufficiency. Although he discounted placental insufficiency as the cause of the IUGR, he still attributed the cause to a uterine blood flow issue, which, as another doctor testified, would equate to placental insufficiency.

The doctor’s own plan of care, as of December 21, reflected a consideration to induce labor at 38 weeks, which was established as a term pregnancy. Plaintiff-mother’s condition, as of December 21, showed, according to the doctor, “some indicators of some concern” which led him to the plan for twice weekly nonstress tests and the thought process to induce labor. Those indicators of concern were the diagnosis of IUGR, the need to watch for hypoxic effects on the fetus, and concern about placental insufficiency. According to a Bronx Personal Injury Lawyer, as of December 21, the doctor had two nonstress tests, the four sonogram reports, and three Doppler studies. When the doctor changed his plan of care for plaintiff-mother on December 28, the only additional information he had, at that time, were the reactive nonstress tests from December 24 and December 28. In explaining his change of plan, the doctor expressed his reliance on the reactive nonstress tests and good flow studies to support his position that the risks associated with this pregnancy were the same or less than on December 21. It is clear from the doctor’s testimony that he did not factor in the increased risk for a placental abruption because of the bicornuate uterus or the elevated MSAFP test results. Nor was there any evidence of fetal growth during this period.

The doctor, who clearly beholds himself an exceptional practitioner, stated twice, unequivocally, that with documented fetal lung maturity and a diagnosis of IUGR, the standard of care requires delivery at 38 weeks. He then held up the risks of testing for lung maturity as a shield to any negligent decision of when to deliver plaintiff-mother’s baby. Yet, looking behind the shield, it was undisputed that the risks of amniocentesis to test for lung maturity were less than one percent, and the test was described, by all who testified, as a very “low risk procedure” at that point in the pregnancy. In fact, the risks for the amniocentesis were less than the risk for a placental abruption in a woman with a bicornuate uterus with a pregnancy not attached to the septum, even before including the increased risk for a placental abruption related to the unexplained MSAFP test results. Another doctor testified that there is no contraindication to delivery at 38 weeks given the circumstances presented here. Even defendant’s expert testified that at 39 weeks fetal lung maturity could be presumed, and no testing was even required. All the medical providers agreed that if the testing had been done at 38 or 39 weeks, it would have more likely than not shown fetal lung maturity.

Clearly, the cervix was not ripe for delivery but, by all accounts, ripening agents and methods were available, and the risks of inducing delivery, which undoubtedly exist, would have evolved in the hospital, where emergency care, as evidenced by the exceptional treatment provided to plaintiff-mother on the morning of January 14, could have been provided. Moreover, the Court was moved by the attending doctor’s testimony, that within a couple days of plaintiff-mother’s next scheduled visit (January 14) he would “almost certainly be inducing her within days,” despite those same risks of induction he touted as precluding an earlier induction. The difference in waiting that additional week, given his intent to thereafter induce, was not compelling for the Court in light of the other circumstances with this pregnancy. Moreover, the standard of care, to which the attending doctor testified, required delivery of an IUGR fetus at 38 weeks with documented lung maturity. He did not condition his testimony upon a ripe cervix. It is because of these factors that the Court finds the attending doctor’s decision to continue the pregnancy of plaintiff-mother beyond 38 weeks, and in any event beyond 39 weeks, was outside of the standard of care for a diagnosed IUGR fetus as he described. His failure to factor in the increased risks of a placental abruption for plaintiff-mother’s pregnancy despite as he acknowledged that the standard of care required this consideration, reflects a failure to exercise reasonable care in the application of his expertise, and not just a mere error in judgment. It appears that the attending doctor failed to heed all of the risks apparent for this pregnancy. He readily acknowledged that most maternal fetal medicine doctors dealing with an IUGR fetus, choose to deliver their patients as soon as pulmonary maturity is assured by testing, and it would have been within the standard of care to deliver this pregnancy even as early as December 21, 1992. He indicated, however, that he didn’t feel that delivery would have been best. Unfortunately, his judgment was based upon his failure to heed all of the risks known for plaintiff-mother’s complicated pregnancy; and more importantly, for purposes of this case, below what the standard of care required based upon all of the information available to him.

Accordingly, the Court finds the defendant, based upon the attending doctor’s breach of the standard of care, 100% liable for the injury/ injuries suffered by the plaintiff-child.

For the amount of damages, several factors have been considered by the court including loss of earning capacity and economic analysis of costs for medical care and other needs. The amount of damages determined exceeds $250,000; therefore, a structured judgment is required under the rules. The Court encourages the parties to agree upon an attorney fee calculation and the discount rate to be applied to formulate a structured settlement of their own but in the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, conforming to the requirements of the rules. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court with regard to the collateral source issues and the structured judgment.

For inquiries on legal matters involving personal injury cases, like the medical malpractice action above-stated, consult with Stephen Bilkis & Associates.

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