Perceptions about cause of dystocia lead to litigation

THE FACTS

At 3:00 PM, the patient was 8 cm dilated, and by 3:15, her cervix was fully dilated. The fetus was noted to be crowning at 3:20 PM, and 3 minutes later, the head delivered. The delivery note indicated a shoulder dystocia. The infant was subsequently delivered with Apgars of 8 and 9, with 1 point deducted for skin color at 5 minutes. According to Dr A's labor-and-delivery note, the infant was left occipitoanterior. McRobert's position was used and suprapubic pressure applied, without success. The shoulders were then rotated, and the posterior shoulder (the left shoulder after rotation) delivered from the anterior position without difficulty.

In the well-baby nursery, pediatrician Dr "B" noted that the infant had transient respiratory difficulty, which had already improved in the labor-and-delivery suite. All findings were normal, except for weakness in the left upper extremity, which was described as limp with good finger movement and soft grasp. Gestational age by physical exam was at least 42 weeks. Dr B requested a neurologic evaluation of the infant for Erb's palsy. A neurology consult was unavailable for a reason not stated, and the infant was discharged with instructions to the mother to take the child for an ambulatory neurologic assessment "ASAP."

At follow-up, Dr "C," the infant's pediatrician, reported that the infant had attained all developmental milestones and showed no neurologic problems other than the residual Erb's palsy. Dr C noted decreased range of motion in the infant's left arm and referred her for neurologic evaluation.

Neurosurgic evaluation by Dr "D" was completed on May 6. The exam was normal except for the left upper extremity, which revealed mild atrophy at the left deltoid prominence. The infant could raise the upper extremity to at least horizontal. She held objects with 2 hands but clearly exhibited right-hand preference. Surgical intervention was deemed unwarranted. A 2007 occupational therapy assessment indicated the child's ability to perform all age-appropriate self-care skills, but protrusion and winging of the left scapula with shoulder flexion and shoulder elevation on the left side were noted.

ALLEGATIONS

Plaintiff alleged failure to perform cesarean delivery, negligent use of oxytocin, use of fundal rather than suprapubic pressure by the assisting physicians, and that excessive traction had been employed in delivering the shoulder. As a result, the infant sustained mild to moderate residual motor and functional deficit secondary to left brachial plexus palsy; very mild atrophy of the left deltoid, with the left shoulder sloped downward; and limitation of passive range of motion.

During her deposition, the plaintiff described the pressure used to deliver the infant as having been applied to her stomach, consistent with fundal pressure. Given that the anterior shoulder was the right shoulder, after rotation, the left shoulder was delivered anteriorly. Dr A's note and the nursing note indicated that suprapubic pressure had been applied while the patient was in McRobert's position. When this was not successful, Dr A then performed Wood's maneuver, which he described as rotating the posterior shoulder to the anterior position, which then delivered the baby. According to expert testimony, once the fetus had been rotated, traction would no longer present an issue; thus, it was difficult to correlate the brachial plexus injury with any of the maneuvers applied.

The child was evaluated at 3 years, 2.5 months by our pediatric neurology expert, who noted decreased length of the left upper extremity (33.5 cm) compared with the right (36 cm) and decreased circumference of the left upper extremity (15.5 cm) compared with the right (16 cm). Circumference of forearms was equal (14.5 cm), as was hand width. There was very mild atrophy of the left deltoid compared to the right, and the left shoulder sloped downward. Passive range of motion was equal bilaterally except for decreased shoulder extension, shoulder external rotation, and shoulder internal rotation. The pediatric neurologist's findings were consistent with a mild to moderate residual motor and functional deficit secondary to the brachial plexus palsy. Our maternal-fetal medicine expert opined that the fetal tracings revealed only a reassuring fetal heart rate pattern. Arrest of labor, arrest of descent, or arrest of dilation was not confirmed by the record. Oxytocin was always administered at low doses and was never raised to any level of concern. Cord blood gases reflected an absence of difficulty with the delivery.

Plaintiff demanded $950,000 to settle before trial. Given the difficult venue and the inherent credibility battle between the mother and the assisting hospital staff as to the nature and the propriety of the maneuvers used, $250,000 was extended to encourage settlement with the defendant hospital only. After further negotiations, given the mild to moderate Erb's palsy with cosmetic deformity, the case ultimately settled before trial for $300,000 with the hospital only; Dr A was released before resolution.

ANALYSIS

Cases such as these are difficult to take to verdict under any circumstances, particularly given the documented presence of injury to a sympathetic child and the availability of any one of a number of obstetric experts willing to testify for the plaintiff that such a lesion could not occur "but for" the application of excessive traction or force in the delivery process. Here, faced with the logical conundrum of injury to the nonobstructed shoulder, plaintiff negotiated a reasonable settlement.

MR KAPLAN is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.