This case presents a unique dynamic involving certified nurse midwives; following protocols enhanced defensibility.
A 19-year-old G1P0 was seen for her initial obstetrical visit by a certified nurse-midwife (CNM) at 9 weeks, 2 days by dates. Her exam revealed a height of 5’1”, weight of 141 lb, with a body mass index of 26.6 kg/m². Her exam revealed a gynaecoid pelvis, with a diagonal conjugate >11.5 cm, which was felt to be “adequate.”
Shwayder is Professor of Obstetrics and Gynecology and former Chair at the University of Mississippi Medical Center.
He is a graduate of the University of Denver College of Law and is a nationally and internationally recognized expert in gynecology ultrasound and minimally invasive surgery.
He actively consults on legal matters in medicine, including liability in ultrasound and gynecologic surgery, as well as issues surrounding privileging and insurance fraud.
The patient underwent an ultrasound at 13 weeks, 2 days, which confirmed her dates, with a subsequent ultrasound at 22 weeks, 1 day, consistent with the previous study and with appropriate interval fetal growth. The patient had an uncomplicated pregnancy.
The patient presented to the hospital at 39 weeks, 2 days with irregular contractions. She was evaluated by the CNM at 3 a.m. with her cervix being 1.5-cm dilated, 50% effaced, with a vertex at a -2 station. She was felt to be in early labor, with the fetal heart rate (FHR) in the 140s, with good variability (a Category 1).
For context, the hospital is a private academic hospital with an ob/gyn residency, and a full-time CNM service, which works collaboratively with the residents and the attending physicians. The CNMs are hospital employees who deliver patients in a birthing unit located in Labor and Delivery.
Despite being in very early labor, the patient did not feel comfortable going home. Thus, she was allowed to rest throughout the night.
A re-examination at 7:45 a.m. revealed a cervix being 2.5 cm dilated, 100% effaced, a vertex at a -2 station, with a bulging bag of water (BBOW). The estimated fetal weight (EFW) was 7 lb 2 oz. There was a Category 1 FHR tracing. The patient was allowed to ambulate throughout the morning, with periodic FHR monitoring confirming a continued Category 1 tracing. At 11:30 a.m., her cervix was 3-cm dilated, 100% effaced, a vertex at a -1 station, with a BBOW.
A Category 1 tracing documented contractions every 5 to 7 minutes of mild to moderate strength. At 3 p.m., there was no change in the patient’s examination.
Thus, membranes were ruptured, noting clear fluid. At 5 p.m., the cervix was 4- to 5-cm dilated, 100% effaced, with a vertex at a -2 station. Contractions were every 2 to 5 minutes of moderate strength.
At 6 p.m., the cervix was 5-cm dilated, 100% effaced, with the vertex at a -1 station, in a left occiput posterior (LOP) position. Contractions were every 2 to 6 minutes of moderate strength, lasting 60 seconds. There was a Category 1 tracing. At 7:15 p.m., her exam remained unchanged. A continuous lumbar epidural was placed.
At 8 p.m., her cervix was 5- to 6-cm dilated, 100% effaced, the vertex was at a -1 station, with caput at a 0 station. It was elected to augment labor with oxytocin. An intrauterine pressure catheter was placed.
At 9:15 p.m., the cervix was 6-cm dilated, 100% effaced, with the vertex at a -1 station, in a LOP position. There were occasional mild variable decelerations, with the baseline FHR in the 140s. The oxytocin was increased to 8 mU/minute, with occasional coupling and tripling.
At 11 p.m., the cervix was 6 to 7 cm, with the vertex at a -1 station, 100% effaced, in a persistent LOP position. The FHR was in the 170s. The patient’s temperature was 101.4º F. The CNM consulted with the chief resident (R4), who consulted with the attending physician. It was elected to begin antibiotics and acetaminophen, with a diagnosis of chorioamnionitis. At 1:20 a.m., the cervix was 7-cm dilated, 100% effaced, with the vertex at a 0 station. The contractions were irregular with occasional variables.
The attending physician’s note at 1:30 a.m. indicated that they would proceed with a cesarean delivery if there were repetitive late decelerations or there was no progress in the next 2 hours. At 3:45 a.m., the R4 examined the patient with the CNM. The patient’s cervix was 7-cm dilated, 80% effaced, at a 0 station. It was elected to recheck the patient in 2 hours, at which time the cervix was 8-cm dilated, 100% effaced, at a 0 station.
At 7:15 a.m., a new CNM assumed care of the patient. Her exam revealed the cervix being 8- to 9-cm dilated, 100% effaced, with molding to a +1 station. The EFW was 8.5 lb. The oxytocin was at 30 mU/min. The documented diagnosis was “Protracted active phase. Consult MD at 9 a.m.”
From 7:49 a.m. to 7:51 a.m., there were two episodes of prolonged decelerations, the lowest being to the 60s for 4 minutes, returning to the 120s and upward to the 140s. A fetal scalp electrode was placed.
At 7:57 a.m., the previous R4 and a new attending physician evaluated the patient. Oxygen was placed via nasal cannula at 10 L/minute. At 8 a.m., the R4 and attending physician were called to the room when the FHR had spontaneous decelerations to the 70s and 80s for 4 to 5 minutes. The oxytocin was turned off. The attending physician discussed a cesarean delivery with the patient. There was good documentation of the risks of surgery and options in management.
At 9:15 a.m., a male infant was delivered, weighing 7 lb 9 oz, with Apgar scores of 9 and 9, at 1 and 5 minutes, respectively.
Umbilical cord gases were obtained with the following results:
The placenta was delivered manually at 9:21 a.m., with oxytocin administered shortly thereafter.
Methylergonovine, 0.2 mg IM, was administered at 9:23 a.m. due to excessive bleeding. With continued bleeding, misoprostol, 800 mcg, was placed rectally at 9:34 a.m. At 9:40 a.m., carboprost, 0.25 mg, was administered, as the patient’s bleeding was not responsive to the prior medications.
At 9:50 a.m., a “Code White” was called as a general alert for excessive bleeding, which brought additional resources and personnel to the operating suite. Surgical maneuvers performed included a B-Lynch suture and O’Leary stitches. They considered and rejected uterine artery embolization. An attempt was made to place an intrauterine compression balloon, which was unsuccessful.
At 10:27 a.m., the attending decided to perform a hysterectomy. A second opinion was provided by the department chair. A supracervical hysterectomy was performed without complication. The procedure, which was completed at 11:49 a.m., had an estimated blood loss of 3000 mL, and 4200 mL of crystalloid fluids was administered intraoperatively.
Blood product replacement included 6 units of packed red blood cells, 4 units of fresh frozen plasma, with 1 unit of apheresis platelets. It was noted that labs sent at 11:04 a.m. revealed early disseminated intravascular coagulation (DIC).
Pertinent labs included a hemoglobin and hematocrit with the following levels:
The baby had a normal hospital and neonatal course. The patient had an uncomplicated postoperative and postpartum course.
Of note, the anesthesiologist, while evaluating the patient on the day following surgery, documented the following, “She expressed confidence that proper decisions were made, and she is grateful for her life and her baby.”
Two years later, the patient filed a suit against the physicians and the hospital for an unnecessary hysterectomy following her cesarean delivery. As a result, the patient and her husband have suffered significant pain and suffering.
After discovery, the case proceeded to trial. The plaintiff’s maternal-fetal medicine (MFM) expert opined that there were remarkable changes in the FHR, with fetal tachycardia, decreased beat-to-beat variability, and intermittent decelerations. Further, there was abnormal progress in labor, with a failure to descend. As such, the patient should have been delivered by a cesarean at 3:30 a.m.
In addition, due to poor communication, there was a lack of personal involvement of the attending physician in managing the patient, which led to a delay in performing the cesarean delivery.
The delay, with the resultant uterine atony, resulted in the need for a hysterectomy. Uterine atony was predictable, as the patient had been on oxytocin for more than 12 hours and she had chorioamnionitis. The expert quoted literature stating that 71% of such patients experience atony.
Thus, the patient should have been appropriately counseled preoperatively about the need for a hysterectomy. As a result of the unnecessary hysterectomy, the patient will not be able to have further children.
The defense’s MFM expert testified that the record reflected ongoing, timely, and appropriate evaluation and communication regarding the patient’s status by the CNMs, the chief resident, and the attending physicians.
He further testified that the collaboration among these care providers was well within the standard of care required in the setting of a delivery primarily managed by a CNM and met all applicable hospital protocols. Oxytocin was appropriately and timely initiated and was appropriately monitored and adjusted throughout the labor. He testified that the signs and symptoms of chorioamnionitis were timely and appropriately recognized and treated.
Chorioamnionitis can lead to a protracted labor, which, with generally reassuring maternal and fetal status, does not compel an earlier cesarean delivery. In addition, an occiput posterior position can lead to a desultory labor. However, with no evidence of fetal macrosomia, pursuing a vaginal delivery was appropriate.
In addition, despite being desultory, the patient did not meet the American College of Obstetricians and Gynecologists’ definition for an arrest of labor in the first stage, which requires either 4 or more hours of adequate contractions, or at least 6 hours of inadequate contractions, and no cervical change. He further testified that there is no literature to support the contention that an earlier cesarean would have prevented the ultimate need for hysterectomy.
After 4 hours of deliberation, the jury returned a defense verdict.
This case presented a unique dynamic, with CNMs providing the primary management of the patient. In contrast to a separate birthing center, this hospital had established a birthing unit in Labor and Delivery, allowing CNMs to manage patients with immediate physician consultation if needed.
The hospital had established protocols with guidelines for CNM consultation with a senior resident or the attending physician. This patient’s management complied with these protocols. Of note, some departments are reluctant to have such protocols, fearful that they will be used against physicians in the event of a malpractice suit.
Although deviations from protocols, without appropriate documentation, can place providers at risk, deviations with documented reasoning are quite defensible. However, as in this case, following protocols enhances the defense of a case.
Documentation of the rationale for various interventions, e.g. oxytocin augmentation and antibiotic treatment, resident and attending involvement, and surgical counseling, was excellent. Such documentation enhances case defensibility. Oxytocin use is often present in obstetrical malpractice actions.
Thus, clear documentation regarding the decision to use oxytocin, as well as carefully documented monitoring is critical. Although the patient initially expressed that she was satisfied with her care, the realization that she could have no further children naturally resulted in her questioning her prior care. Being sensitive to such concerns and addressing them during future appointments can often allay a patient’s misgivings. Studies support that good communication with the patient is one of the best ways to avert litigation.
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