Expert Witness Case #36
This case concerns a 29-year-old woman who was G2P1 and induced at 41 weeks gestation.
She was induced with oxytocin and progressed to 9cm dilation but did not reach full dilatation. During labor she also developed a fever.
The baby was in an occiput posterior position. The OB resident and attending made multiple attempts with forceps to rotate the baby that were unsuccessful.
A C-section was eventually performed, and the child was noted to be critically ill. He was immediately intubated.
The child suffered from severe hypoxic ischemic encephalopathy, seizures, among numerous other issues.
Unfortunately the child died about 3 weeks later.
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The parents contacted a law firm, and a lawsuit was filed against the attending OBGYN, his medical group, and the hospital.
The resident was not named in the lawsuit.
An expert witness was hired and wrote the following opinion:
The plaintiff’s attorney also disclosed a NICU physician:
A forensic economist was hired to assess the baby’s lost earnings:
The case was ultimately settled for a confidential amount.
MedMalReviewer Analysis:
This lawsuit is unique because it alleges harm to 2 patients; both the newborn and the mother. The plaintiffs state that the mother now suffers permanent foot drop from a lumbosacral plexopathy that was caused during the delivery.
The resident was not specifically named as a defendant in the lawsuit. However, the hospital itself was named in the lawsuit because the resident (acting as an agent of the hospital) allegedly did not notify the attending of multiple problems with the mother’s labor.
The resident’s documentation makes me suspicious that she did not think the attending’s plan was wise. She uses quotes in her note to indicate that he would “consider” forceps rotation once the patient is fully dilated. It’s difficult to know what actually happened without seeing the full records, but it’s not hard to read between the lines on the brief excerpt from her documentation.
Reviewing malpractice cases from multiple specialties is a valuable exercise. It provide an opportunity for medical education for generalists, and also provides a strong foundation for understanding the breadth of medicolegal issues in America.
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I understand an economist opining on economic loss for an adult, like someone's wife who is working and dies from negligence and has 20 years until retirement at 65. The assumption is the wife has a husband and children to support, and therefore the loss of income is a hardship for the family and to be made whole, that loss should be paid. But for a fetal/neonatal death there is no family to support, there are only hypothetical future relationships and obligations that will never come into being. Parents do not rely on a child for support, the child relies on the parents. So I don't understand how the economist input has any relevance. Paying for the emotional loss makes sense to me, but not future earnings of a deceased baby. Sorry to sound cold, just not understanding the perspective.
The fetus is not a legal person until birth, and has no inherent rights until born. This makes responsibilities clear. The biologic parents are, and have prescribed (existing before the action) legal rights, and by laws applied also obligation for care is the duty of the legal parents or gardian. WIth rights comes duties, and since a fetus cannot fullfil any of the required duties of a person, cannot be granted sanction.
I woud critique the decisions described; that media-star-presidents sending persons to war and injury have protection from personal responsibility with no personal burden of training, yet physicians with tremendous burden (including emotional trauna) without thought of remedy is indefensible.
Liability under the law can be legally defined, but in this case the child is treated only as a commodity, with economic potential for the impled previous "owner" who may not even have legal right to the child after birth.
How pathetic and sophist a rationalization.