In the latest in a long series of unfortunate birth injury cases litigated by our firm, Vic Bergman and Matt Birch represented the family of a boy born after a family practitioner’s arduous and mismanaged attempt to induce labor. The case resulted in a $4.1 million settlement in Shawnee County, Kan., shortly before trial.
Luke Hamilton’s ordeal began midmorning when a drug called Cytotec was used to ripen Jill Hamilton's cervix. Cytotec has been directly implicated in causing hyperstimulation (too many contractions) of the uterus. No progress had been made by late that evening, so the doctor told the nurse to give Jill a sleeping pill and start again the following morning. Unfortunately, at 11:20 p.m., the nurse turned off the fetal heart monitor and did not turn it back on until about 6:00 a.m., when it showed that Luke's heart rate was abnormal. His heart rate continued to worsen to the point where the nurses administered intravenous fluids and oxygen. As early as 7:00 a.m., uterine hyperstimulation became an ongoing problem. (Please see sidebar)
The family practitioner saw Jill at 7:30 a.m. and ruptured her membrane, producing a large amount of thick particulate meconium that should have been a red flag. In association with his examination, Luke’s heart rate decreased to 70 bpm—the third time his heart rate had decelerated in association with vaginal exams that morning, another red flag.
At 9:00 a.m., while at his office, the doctor was notified that Jill was having late decelerations and hyperstimulation, a combination associated with fetal intolerance of labor. The fetal monitoring also revealed numerous other abnormalities. The doctor was not concerned, however, and neither were the nurses. The doctor chose not to go to the hospital. As a family practitioner, he did not have hospital privileges to do a cesarean section, so intervention, if necessary, would require calling an obstetrician. No obstetrician was called. Before 11:00 a.m. the nurse finally recognized the baby was in trouble. She called the doctor at 11:20 a.m. with her concerns, but he still did not consider it an emergency and did not request an obstetrician.
Upon arrival at the hospital, the family practitioner recognized that intervention was necessary, but he could not do a cesarean delivery. He unsuccessfully tried to deliver using a vacuum extractor. He then delivered with forceps, inflicting a fourth degree laceration on Jill.
At birth, and still at 20 minutes of age, Luke had respiratory distress and a very floppy tone. Suspiciously, no cord blood gases were obtained to see if there was metabolic acidosis at the time of birth.
Luke was transferred to the neonatal intensive care unit. There, he developed severe and frequent seizures. Unfortunately, the seizures were not treated appropriately, and Luke continued to have prolonged seizures without breathing – a total of 50 seizures in less than 19 hours. Plaintiffs' evidence showed that these seizures contributed to Luke's hypoxic ischemic encephalopathy, the damage to his brain that caused Luke’s cerebral palsy.
Plaintiffs claimed negligence in the management of the labor and delivery by the family practitioner and the obstetrical nurses, and negligence in the NICU by the neonatologist and the NICU nurses.
Experts were prepared to testify on behalf of the plaintiffs in the specialties of obstetrical nursing, neonatal nursing, obstetrics, neonatology, neuroradiology, placental pathology, life care planning and economics.
The case settled shortly before trial, including $1.3 million paid on behalf of the hospital, $2.7 million paid on behalf of the family practitioner, and $100,000 paid on behalf of the neonatologist. We believe this is the largest personal injury settlement in Shawnee County.
