Date of Incident: January 6, 2003
Economic Damages: $229,005 (past medical bills; remarkably small due to home-care by the parents).
Injuries: Anoxic injury at birth causing cerebral palsy.
Settlement: $2,500,000.00 (total)
$1,000,000 (policy limits) Dr. X, OB/GYN
$1,500,000 Hospital Y
The net settlement proceeds were divided between Baby Joe Doe and his parents, with a special needs trust set up for the child.
Report Submitted By: Ron Perey
Facts:
Plaintiff Baby Joe Doe suffered catastrophic injuries due to the delayed delivery and inadequate resuscitation which caused birth asphyxia, hypoxic-ischemic encephalopathy (brain injury due to lack of oxygenated blood) and spastic quadriparesis with athetoid features, cerebral palsy (weakness and incoordination of the limbs). Defendant Dr. X was the mother's physician throughout the pregnancy. She went into labor and presented to defendant Hospital Y at 1:15 a.m. on January 6, 2003. Fetal monitoring initially showed a very reassuring fetal heart rate pattern. When the amniotic membrane’s ruptured at 9:00 a.m., moderate meconium (baby’s first bowel movement) with particulate was noted, and there were very frequent uterine contractions and periods of diminished fetal heart rate variability. Dr. X inserted an intra-uterine pressure catheter and began amnio-infusions (pushing saline into the uterus in attempts to dilute the particulate meconium which places the baby at risk for aspiration). The Hospital Y nurses did not monitor the amnio-infusions nor make attempts to improve the fetal heart rate by changing maternal position, providing oxygen, or giving IV fluids.
The plaintiff mother Jane Doe developed a fever (38.2o C or 100.8o F) in the early afternoon on January 6, 2003, and the fetal heart rate became tachycardic (elevated) with little variability and repetitive decelerations, including shallow late decelerations which are an ominous sign of placental insufficiency. The nursing staff never recognized that there were late decelerations, nor did they appreciate their significance. In the mid-afternoon, plaintiff mother, Jane Doe, expressed that she had an “impending feeling of doom; that something was wrong and the baby needed to be delivered”. The nurse notified the physician, who believed the mother was just anxious due to her fever and gave her a Tylenol suppository and then returned to his clinic off-site, never informing the parents of the non-reassuring fetal heart rate pattern on the monitor strip. The nurses changed shift around 3:30 p.m. and the new staff nurse and charge nurse thought all was well. In fact, the charge nurse never reviewed the fetal monitor strip until after the baby’s delivery.
Labor progressed slowly. Jane Doe became completely dilated at 4:50 p.m. With her first two pushes, deep late decelerations were observed, which prompted the nurse to stop pushing efforts, provide supplemental oxygen, change maternal position, and notify the physician, but she did not notify any other nursing or hospital personnel. Dr. X arrived at 5:10 p.m. and had the mother resume pushing. Worsening deep decelerations persisted through the second (pushing) stage of labor and variability was lost, but the parents were never informed of the non-reassuring fetal information, nor did Dr. X make any efforts to expedite delivery or convert to a C-section. The labor and delivery nurse also failed to inform the parents of the problems and never invoked the chain of command to expedite delivery despite continued evidence, as she described in her deposition, of “horrendous” decelerations, though she didn’t understand what kind of deceleration they were. A fetal scalp electrode was placed at 5:27 p.m. which confirmed deep late decelerations with each push, fetal tachycardia, loss of baseline and minimal, if any, variability -- all very non-reassuring signs. Jane Doe was told to continue pushing, but try to refrain every third contraction. The staff nurse told the charge nurse to have a Special Care Nursery (SCN) nurse at the delivery, but failed to inform this person that there had been moderate meconium with particulate earlier in labor. The SCN nurse could not read fetal monitor strips and was not informed of what they revealed. She was also not trained or authorized to intubate neonates, if needed, at delivery. The neonatologist on call for the hospital should have been notified to be present at delivery, but she was not.
After the mother had been pushing for nearly 90 minutes, the fetal heart rate was lost at 6:37 p.m. and the vacuum extractor was applied at 6:39 p.m., with two pulls to deliver Baby Joe Doe at 6:41 p.m. At delivery, the baby was limp and blue with no respiratory effort. He was a large baby, weighing 9 pounds 13 ounces. No cord blood was obtained, so the level of his acidosis can only be calculated in retrospect. He had a heart rate over 100, and his one-minute Apgar score was 2 out of a possible score of 10. He was bagged for ventilation by the SCN nurse who received him, and she provided 10 minutes of positive pressure ventilation before any suctioning below the cords was considered. Baby Joe Doe did not improve. Since the nurses at Hospital Y do not intubate babies and they had failed to have a neonatologist present at delivery, with Baby Joe Doe, obviously critically, neurologically depressed, the anesthesiologist was called, who arrived and intubated the baby at 10 minutes of life to provide endotracheal suctioning. When suctioned, 1-2 cc of greenish meconium was aspirated and the baby was reintubated. The neonatologist was called by the anesthesiologist at 7:00 p.m. (19 minutes of life), and did not arrive for another 35 minutes.
Baby Joe Doe was hand carried to the Special Care Nursery at 7:15 p.m. No one had obtained a blood gas to determine the baby’s acid-base balance, and therefore, no one provided sodium bicarbonate to the infant. A peripheral IV was started at 7:40 p.m. He was placed on the ventilator to assist in breathing at 7:50 p.m. Umbilical lines (arterial and venous catheters) were placed at 8:00 p.m., when the neonatologist finally arrived. The first obtained blood gas at 8:10 p.m. (89 minutes of life) indicated a pH of 7.08 [normal is 7.35 -7.45], pCO2 of 16 [normal 35 – 45], pO2 of 69 [normal 75-100] and bicarbonate of 5 [normal 21-25], with oxygen saturation of 84% [normal 92-99%]. His blood was still very acidotic with low oxygenation, very low bicarbonate level, and low pCO2 due to hyperventilation on the ventilator. Baby Joe Doe’s hypoxemia and brain injury had continued well after his birth due to poor resuscitative efforts by Hospital Y. Sodium bicarbonate was finally administered at 8:42 p.m., two hours after Sam was first delivered. A transport team was assembled and Baby Joe Doe was rushed to the tertiary care center.
After his birth, Baby Joe Doe was critically ill with severe diffuse hypoxic-ischemic encephalopathy (HIE). He continued on the ventilator and remained unstable with seizures and a markedly abnormal EEG. Early CT scans showed diffuse edema. A brain MRI/MRA on January 9, 2003 revealed diffuse areas of ischemia, small subdural and subarachnoid hemorrhages, and bilateral cerebral swelling. It was initially felt there might be a sinovenous thrombosis and the infarcts were venous (not arterial), but through discovery, parties learned that the radiologist's 1/9/03 MRI report was mistaken. Plaintiffs argued that Baby Joe Doe did not have a sinovenous thrombosis or venous infarct, but had diffuse hypoxic-ischemic encephalopathy. Laboratory studies revealed no congenital coagulopathy. He also had evidence of liver and renal dysfunction from the HIE. The parents were told that the prognosis from his massive brain injury was dismal and he would soon die. They agreed to withdraw life support.
Baby Joe Doe was removed from the ventilator on January 10, 2003, four days after his birth, and all medications were stopped. It was anticipated that he would die shortly thereafter. Miraculously, he began to breathe spontaneously. The hospital provided hydration by giving Pedialyte through a nasogastric tube. His prognosis was still extremely grim, but he was discharged home on January 13, 2003 in order to spend his final days peacefully with his family. Funeral arrangements were made and the medical examiner was notified of the impending death. The parents took Baby Joe Doe to their home in Grayland, Washington, holding him and caressing him for what they had been told would be the end of his life.
However, Baby Joe Doe did not die. His will to live and his strength amazed everyone. He stopped having seizures and became more responsive to his surroundings, turning toward his parents' voices and reaching to them. He demonstrated a will to survive, so the parents began to feed him through the nasogastric tube, then with a bottle. He gained weight and in three weeks they began arrangements to get him involved with therapists and developmental specialists.
Baby Joe Doe defied the early predictions, but is now severely developmentally delayed with spastic quadriplegia with athetoid features. He has cerebral palsy. He has low trunk tone such that he cannot even sit up unassisted, but he also has excessive extremity tone, right worse than left, making his arms and legs rigid and unable to coordinate movements. At two-and-three-quarter years old, he could scoot himself forward on his belly, but he could not crawl on his hands and knees, nor walk. He is microcephalic (small head size) because his injured brain has not grown normally. Though visually impaired, he recognizes his parents. He can follow some simple commands, but can say no words. He can eat soft foods orally and drink from a bottle, but cannot eat regular textured foods, nor feed himself. He requires no ventilatory support and breathes unassisted.
Liability was hotly contested. The placenta was examined in the Hospital Pathology Department and the report indicated the presence of chorioamnionitis (inflammation/infection of the chorion and amnion membranes that surround the fetus in utero), funisitis (inflammation/infection of the umbilical cord) and vasculitis (inflammation/infection of the vasculature), as well as focal thrombus formation. Plaintiffs argued that Dr. X and the nurses at Hospital Y should have been suspicious of possible chorioamnionitis by 1:00 p.m. on January 6, 2003, when Jane Doe exhibited a fever and there was fetal tachycardia and diminished variability, indicating loss of fetal reserve. Every effort should have been made to improve the intra-uterine environment for baby Sam and delivery should have been expedited and completed long before 6:41 p.m. Defendants argued that Dr. X and the nurses at Hospital Y adequately managed that labor; that the injuries suffered by Baby Joe Doe were a result of the chorioamnionitis, funisitis, and vasculitis, and stroke; and that his injuries were not a proximate cause of any of the actions or inactions of the defendants.
Plaintiffs’ counsel were successful in neutralizing or destroying most of the defendants’ experts such that they could not be used at trial. Unfortunately, the trial judge, after the close of discovery, permitted the defendants to name and call a complete slate of new experts; continued the trial date for 60 days; permitted defendants to continue to take depositions up to the day before trial; and ordered, over plaintiffs’ objection, a forensic brain MRI of the child one day before trial. These ruling made trial preparation extremely difficult and complex, and introduced new medical opinions and experts into its case in the weeks before trial. The hospital was represented by two experienced trial lawyers and outside counsel from Virginia. The case was settled on the 8th day of a very slow trial for $2,500,000.
County: King County, Washington
Trial Judge: Richard Jones
Plaintiffs: Baby Joe Doe, Minor, John Doe and Jane Doe, parents.
(Confidential Settlement)
Defendants: Dr. X, OB/GYN; Hospital Y (Confidential Settlement).
Trial date: October 24, 2005
Date of Settlement: November 3, 2005 (8th day of trial) - $2,500,000
Plaintiffs’ Attorneys: Ron Perey, Thomas V. Harris, and Doug Weinmaster
Perey~Harris, Seattle, Washington
Defendants’ Attorneys: Confidential.
Plaintiffs’ Experts: Stephen Glass, M.D., Woodinville, WA (Pediatric neurology); Harlan Giles, M.D., Sewicky, PA, (OB/GYN); Lynn Montgomery, M.D., Missoula, MT (OB/GYN); Theonia Boyd, M.D., Needham, MA (Placental pathology); Lynne Brengman, R.N., Bellingham, WA (OB Nursing); Karen Pleva, R.N., Willimington, NC (Labor and delivery nursing); Gayle Huelsmann, R.N., Albuquerque, NM, (Labor and delivery nursing); Camile Di Costanzo, R.N., Highland Park, IL (Nursing neonatal resuscitation); Robert McDowell, M.D., Bethesda, MD (Neonatology); Barry Pressman, M.D., Los Angeles, CA (Neuroradiology); Gary Stimac, M.D., Bellevue, WA (Neuroradiology); Anthony J. Choppa, M.Ed., Bothell, WA (Life care planner); Lowell Bassett, Ph.D., Seattle, WA (Economist).
Defendants’ Experts:
Thomas Garite, M.D., Orange, CA, (Maternal-fetal, OB/GYN); Patrick Barnes, M.D., Palo Alto, CA, (Neuroradiology); Barbara Ringhouse, R.N., Sedro Woolley, WA, (Labor and delivery nursing); David Luthy, M.D., Seattle, WA, (Obstetrics/perinatology); Frank Boehm, M.D., Nashville, TN, (Obstetrics/nursing); Audrius Plioplys, M.D., Chicago, IL, (Pediatric neurology); Mark Scher, M.D., Cleveland, OH, (Pediatric neurology); Jean Steichen, M.D., Cincinnati, OH, (Pediatrics); Edwin Trevathan, M.D., Webster Groves, MO (Pediatric neurology); Perry Lubens, M.D., Long Beach, CA, (Pediatric neurology); David Schwartz, M.D., Atlanta, GA, (Placental pathology); Michael Painter, M.D., Pittsburg, PA, (Pediatric neurology); Richard Depp, M.D., Gladwynne, PA, (Obstetrics/perinatology); Harold Zimmer, M.D., Bellevue, WA, (Obstetrics/perinatology). Thomas Collins, M.D., Bellevue, WA, (Pediatric neurology); Clifford Sells, M.D., Bow, WA, (Developmental pediatrics); David Eshenbach, M.D., Seattle, WA, (Obstetrics / infectious disease), Terrence Sweeney, M.D., Seattle, WA, (Neonatology); Jane Vaccaro, RN, Gig Harbor, WA (Life care planner); David Knowles, Ph.D, Seattle, WA, (Economist); and many, many more.
Mediators: Judge Charles Burdell (Ret.), (failed mediation 6/14/05).
Date of Incident: January 6, 2003.
Admitted Liability: No. Liability contested.
Summary Judgment: N/A
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