Early delivery to blame for child’s disability?

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Facts

Then age 29, the plaintiff mother was treated prenatally at the co-defendant ob/gyn office from May 16, 2008 to October 1, 2008. During that time she was treated there by several defendants, including Drs. A and B, who were employed by that office, and by Dr. C, the co-defendant who owned the office.

During her initial visit the patient gave her last menstrual period as March 1 and, as a result, her estimated date of delivery was determined to be December 23, 2008 (later adjusted by ultrasound to be December 19). The woman gave a history of being seen in the emergency department (ED) on May 10 for bleeding. The evaluation done in the ED was within normal limits but, because of the bleeding, an ultrasound was performed at the codefendant ob/gyn office on May 20, which revealed a bicornuate uterus and a 2.2 x 1.3 cm subchorionic bleed in the left horn of the uterus.

On June 20, upon the referral of Dr. A, the plaintiff had an another ultrasound, a nuchal translucency study, and fetal anatomic scan. Results were normal and the placenta was noted to be anterior. On June 27, when the patient returned to the codefendant ob/gyn office for her scheduled visit and was seen by Dr. C, her physical examination was within normal limits and the ob/gyn noted “stain improved.”

On August 4 when the patient was seen by Dr. B for heavy vaginal bleeding, an ultrasound was interpreted as showing “echogenic area seen at the cervical os. No color flow seen within, probably blood clot measured 6.9 x 6.7 cm.” A handwritten notation in the sonogram report indicated that the cervix was closed, positive fetal heart movement was noted, and that the report was discussed with the patient. The patient was advised to have “bed rest for now” and have a repeat ultrasound in 2 days to reassess the situation, and return to the office in 1 week.

Pursuant to this recommendation, a transvaginal ultrasound (TVUS) was performed on August 6. It revealed no issues with the infant and showed a closed cervix that measured 4 cm. It also confirmed that the placenta was anterior but showed an anterior accessory lobe that was in complete previa (correlated to the “clot” seen on the transabdominal sonogram).

At 1:30 pm on September 14, the plaintiff was admitted to Labor and Delivery (L&D) for 31 hours for complaints of vaginal bleeding, which started that morning at 10:30 am and filled 1 pad, and for low back pain for the past 2 days, with no contractions. She was seen by Dr. A and minimal bleeding was noted. A history of low-grade placenta with an accessory placental lobe in complete previa was noted, but Dr. A amended this report based on an ultrasound performed during the admission, which revealed that a small clot was identified in the canal and that only fluid was below the head, not placenta. The study also revealed a long (4.9 cm) and closed cervix. Dr. D, the ob covering L&D, recommended nifedipine 2 mg every 6 hours and betamethasone for fetal lung maturity. The patient was given nifedipine 4 times and betamethasone twice. Dr. D also commented that there may be a minor placental abruption. Fetal monitoring was continued throughout the admission. Fetal movement and a reassuring heart rate were noted.

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At 6:20 am on September 15, 2 decelerations into the 70s, each lasting 1 minute, were noted, with spontaneous return each time and no further late decelerations. The patient was seen by Anesthesia in case cesarean delivery was needed, and monitoring and steroids were continued. Dr. A saw the patient again prior to discharge, noted that there was “? chronic abruption” and recommended that she follow up in 2 days and call if there was any bleeding, pain, or decreased fetal movement. Per a nurse’s note, there was no active bleeding, so the patient was discharged home at 8:30 pm The discharge note directs “complete bed rest with bathroom privileges.”

A TVUS done during the woman’s hospitalization showed a cervical length of 3.2 cm with no funneling and no sonographic evidence of subchorionic hematoma or separation. The placenta was anterior with no previa. No mention was made of a clot. The measurements were consistent with a gestational age of 24 weeks/3 days. The scan also showed that most of the amniotic fluid was in the left horn of the uterus and that the fetus, with a small amount of amniotic fluid, was in the right horn of the uterus. The estimated fetal weight was in the 29th percentile and a follow-up scan was recommended in 3 weeks to check fetal growth.

The plaintiff was next seen on September 17, by Dr. A at the codefendant ob/gyn office. Dr. A noted the fetal heart rate (FHR) to be in the 140s, positive fetal movement, and “no bleeding or cramping.” It was noted that the plaintiff was counselled on the signs of preterm labor. On that date, the patient was also referred to a maternal-fetal medicine specialist (MFM). The “Impression/Plan” from her first visit to the MFM, Dr. E, on September 25 states that an ultrasound performed did not show any subchorionic hematoma and the cervix measured 4 cm. Dr. E recommended continued modified bedrest and complete pelvic rest and wanted to see the woman again in 2 weeks.

The patient’s last prenatal visit at the codefendant ob/gyn office was on October 1, at which time she was again seen by Dr. C. All appeared to be within normal limits and Dr. C noted that the patient was “seeing MFM weekly.” The plaintiff was seen again by Dr. E the next day and no bleeding was reported since her last visit. A TVUS was performed and the cervix was measured as 3.78 cm but it also showed a subchorionic hematoma in front of the internal os, which measured 2.1 x .9 cm. Dr. E noted that this was different from the scan done on September 15, which showed no hematoma. His impression was “chorionic abruption” and he instructed the patient to return in 2 weeks and to call if she had bleeding, contractions, or loss of fluid.

The plaintiff presented to the defendant hospital’s L&D ward on October 13 at 7:21 am. At that time, she was 29 6/7 weeks pregnant and complained of intermittent lower abdominal pain for 3 days, which worsened today, and brownish/pink discharge. FHR monitoring was begun and was reassuring in the 150s without contractions. The patient reported fetal movement. An ultrasound performed by Dr. E at approximately 8:00 am showed a cervical length of 1.4 to 1.8 cm without funneling and a subchorionic hematoma. A sterile vagina exam performed at that time by the resident was positive for nitrazine (without pooling) and revealed brown staining and a closed, soft, and posterior cervix. Dr. E recommended that the woman be admitted to L&D for observation and “monitor for contractions, would tocolyze with Nifedipine.” His note also said that the plan was discussed with Dr. C.

Dr. A saw the patient at 11:15 am and noted a reassuring FHR and no contractions. The plan was to monitor the patient. The neonatal intensive care unit (NICU) consultant saw the patient at 12:05 pm and noted that she was “on tocolytics” (incorrect), and he discussed the risks associated with delivery of a 29-week fetus.

At 5:48 pm, the nurse described the patient’s complaints of cramping and tightening as “contractions/labor pain.” But at 6:08 pm, the woman had no pain and no contractions other than 2 noted at 5 minutes apart for 60 seconds. At 7 pm, 3 contractions were noted and they were coming closer together but less painful. From 8 pm on, the patient was noted to be complaining of painful contractions. At 10:52 pm she had spontaneous rupture of membranes (clear and normal odor) and some bloody show. At 11:04 pm she was 5 cm dilated. At 11:35 pm she was transferred to the delivery room. A delivery note said that at 11:40 pm on October 13 the patient was fully dilated and that a viable female infant was delivered from the occiput anterior position at 11:46 pm, with Apgars of 8/9 and a birth weight of 1260 g. Following delivery, the infant was given to the “waiting pediatrician.”

The infant was admitted to the NICU for premature birth, respiratory distress syndrome (RDS), and presumed sepsis. Head ultrasounds taken on October 23 and November 13 were interpreted as normal. The infant did develop retinopathy of prematurity stage 0-1, zone II during the admission. The infant was discharged home on November 26, at Day 44 of life, weighing 4 lb and measuring 16.9 inches long. The discharge summary noted that she had been treated for prematurity, RDS, feeding intolerance, and retinopathy of prematurity. At the time of her discharge, the infant was thriving on room air, feeding at liberty, and doing well. She had a normal sleep study but she was discharged home with an apnea monitor due to her gestational age. It was documented that her RDS, apnea of prematurity, and hyperbilirubinemia had all resolved at the time of her discharge.

Allegations

The plaintiffs alleged that a failure to properly monitor the patient and administer steroids for lung maturity; to place her on bed rest; or administer tocolytics to prolong pregnancy resulted in premature delivery, brain injury and neurologic developmental delays.

Discovery

Trough testimony from the plaintiff and her husband, we were able to establish that indeed all modalities of treatment claimed to have been omitted were in fact attempted or provided. In addition, the infant’s mother confirmed that her child was diagnosed by specialists on the autism spectrum in the years after discharge from defendant Hospital. The delivering attending testified that the plaintiff received appropriate prenatal care, including investigations of intermittent bleeding; that it was appropriate to administer tocolytics and corresponding betamethasone lung maturity medication during the admission of September 15, for reasons including a presentation of back pain; and most significantly that it was appropriate not to administer tocolytics or betamethasone during the plaintiff’s presentation on October 13, insofar as during that presentation she was not complaining of pain and there was no active vaginal bleeding. In her judgment, betamethasone would not be re-administered, insofar as the evolving body of obstetrical knowledge at that time indicated to her that there was no efficacy in repeating a cycle of the previously administered betamethasone, and that indeed there were certain risk factors in repeating the cycle. The defendant MFM testified about his plan for tocolysis, specifically that the tocolytics he “recommended” in his note of October 13 were a recommendation only, and even more importantly, would only be applicable if the patient demonstrated a contraction pattern, specifically a “persistent contraction pattern.”

Our MFM expert could defend the decision to not give tocolytics and betamethasone when the plaintiff presented on October 13. Because the plaintiff received betamethasone 1 month earlier, during her admission on September 14 the standard of care only required 1 such administration. The American College of Obstetricians and Gynecologists did allow for a second administration but it was only a recommendation, not a requirement. Betamethasone would only help prevent RDS and possibly intraventricular hemorrhage. The infant-plaintiff here did not suffer either.

In addition, tocolytics are only given when there are consistent contractions and changes to the cervix. In our case, the fetal monitoring strips do not demonstrate any consistent contractions until around 11 pm, which was after the plaintiff had SROM (10:52 pm). The MFM expert also mentioned that there are risks to tocolytics, primarily when giving them to a patient with low blood pressure (BP), because nifedipine will lower BP even more and can endanger the health of the mother and decrease blood perfusion to the uterus.

The placental pathology also showed acute chorioamnionitis, thus the risk of harm to the fetus in being delivered prematurely was exceeded by the risk of infection. The MFM expert also believed that the pathology supported the clinical diagnosis of partial placental abruption because of the finding of iron depositions consistent with a prior bleed. The MFM noted that the iron deposits were the reason the patient went into preterm labor (as well as having a bi-cornuate uterus).

Our pediatric neurology expert agreed with the subsequent treating physicians that the infant had a mild form of autism (Pervasive Developmental Disorder) which she believed was either caused by genetics or her prematurity. She opined that the infant did not have cerebral palsy or any evidence of hypoxia based on findings from examination of the child, her current condition and the head scans performed.

Resolution

Armed with supportive testimony and the strong medical opinions of our experts, we moved for dismissal as against the defendants at the close of discovery. Plaintiff’s counsel was apparently unable to retain experts willing or able to refute our positions and as such, the motions were submitted to the court unopposed and were ultimately granted. the case was dismissed.