Erroneous presumption of fetal death stymies possible defense

THE FACTS

Nonparty hospital records show that the patient was a late prenatal registrant who first presented on June 25 and again on June 28 with blood pressure of 150/78 mm Hg. A sonogram performed on July 2 indicated a single gestation at 31.5 weeks and an estimated date of delivery of August 29. Follow-up examination was suggested as a result of the sonogram. Urinalysis on that date revealed Trichomonas, for which she was treated with metronidazole. She had another prenatal visit on July 6, with blood pressure of 146/70 mm Hg and trace albumin on urinalysis. Fundal height was slightly greater than her gestational age of 32.5 weeks, and fetal heart rate and fetal movement were present.

The patient was diagnosed with intrauterine pregnancy at 33 weeks, intrauterine fetal demise, placental abruption, and severe preeclampsia. The treatment plan was for intravenous magnesium sulfate and oxytocin induction.

At approximately 9:30 AM, the patient's membranes ruptured spontaneously, releasing a moderate amount of clear fluid, bright red blood, and moderate-sized clots from the vagina. Her cervix was 6 cm dilated, 100% effaced, with fetal presenting part at –3 station. The baby boy was born at 10:23 weighing 4 lbs, 2 oz. He was limp with no tonus, no reflexes, cyanosis, and occasional gasping. Apgar scores were 1, 3, and 4 at 1, 3, and 10 minutes of life, respectively. No cord gas was taken. The infant was suctioned, the umbilical cord cut, and he was handed to the pediatrician. In the discharge summary, the pediatric attending documents that at 3 minutes of life, the infant was placed on positive pressure ventilation and intubated 7 minutes later. However, a nursery note made at noon indicates that pediatricians were called immediately after delivery and arrived at about 3 minutes of life, but the pediatric attending's note reports that they were called for delivery at 8 minutes of life and arrived 2 minutes later.

The infant experienced apnea throughout his first day (July 9). He was extubated the next day; however, continuous positive airway pressure was necessary until the following morning (July 11), when it was discontinued. A head ultrasound was negative for intraventricular hemorrhage and other abnormalities.

On July 16, the boy was examined by a neurologist who concluded that the results were normal and recommended outpatient magnetic resonance imaging.

The infant was discharged on July 23 after a physical exam that was unremarkable except for oral thrush, which had been improving. Follow-up for newborn care was advised.

At 2 years, 3 months, the child was walking but falling frequently and bumping into objects. He has had gross motor delays and evidence of progressive tightness of his legs and trunk. The boy was evaluated as having speech and language delays. He had a 4-word vocabulary and could follow only basic directions with visual prompting. He requires speech, physical, and occupational therapy.