An unnecessary and ill-advised induction of labor resulted in cerebral palsy. The ensuing litigation, handled by Vic Bergman and David DeGreeff, resulted in the adoption of new hospital policies and procedures, and a large Missouri settlement.
Pregnant for the first time, Kelsey and Jeff Bair were surprised when their obstetrician, Cheryl Fogarty, M.D., suggested that they come into the hospital for induction of labor at 39 weeks. There was no medical reason. Dr. Fogarty told the Bairs she was going to be out of town on vacation and probably would not be there to deliver the baby when Kelsey went into natural labor. But if the Bairs wanted her to be there, she could induce labor that evening and the Bairs could have their baby that night or the next morning.
Dr. Fogarty reassured the Bairs that their baby, Brock, was healthy and ready to be delivered, that the procedure was safe two weeks before term — even safer than spontaneous labor, because Kelsey would be in the hospital on a monitor and any problems could be taken care of. Dr. Fogarty said the induction would eliminate the possibility of the Bairs having to come to the hospital in the middle of the night.
Jeff Bair asked but was misinformed that there were no significant risks. The idea excited the Bairs, who checked into Freeman Hospital in Joplin, Mo., that afternoon. Little did they know that Dr. Fogarty had admitted numerous other patients to the hospital for delivery that same day, her "on call" day, to the point that she delivered five babies in 19 hours, including three by "unscheduled" caesarean sections. This patient load directly interfered with Dr. Fogarty's ability to act on the Bair pregnancy when needed.
Discovery of the electronic medical record, specifically the "audit trail," revealed that the nurses in attendance returned the next morning and worked for hours changing many of the key entries.
The induction was hyperaggressive, with very high doses of misoprostol (Cytotec) followed by high-dose oxytocin (Pitocin), which was increased despite hyperstimulation (too many uterine contractions). When the fetal heart pattern became abnormal, the Pitocin was increased even more instead of being turned off as it should have been.
Brock was not tolerating labor. He was in trouble. Delivery by caesarean section was urgently needed, but Dr. Fogarty was busy with other patients. The hyperstimulation and the abnormalities continued for several hours, until baby Brock was permanently and severely injured by lack of oxygenated blood to his brain.
As a consequence, Brock has hypoxic-ischemic encephalopathy (HIE), cerebral palsy, and spastic quadriparesis. He will always have severe limitations in movement, intake of food, and vision. He will always need multiple therapies, close medical attention, and 24-hour care. Cognitively, Brock is very much with it. He has had excellent care from his parents, including some alternative therapies that have proven to be successful.
The case was settled with Freeman Hospital and Dr. Fogarty for a total of $5,000,000. In addition, Freeman Hospital agreed to make changes in its policies, procedures and standing orders pertaining to induction and augmentation of labor. Please visit http://www.sjblaw.com/CM/ Custom/TOCBriefs.asp to view the new policies.
The plaintiffs named experts in obstetrics, pediatric neurology, neonatology, neuroradiology, labor and delivery nursing, physical medicine, life care planning, and economics. This was another tragic, completely unnecessary injury as a result of inappropriate and overly aggressive induction of labor. Our firm has seen a trail of similar catastrophes over the past several years as the result of elective inductions of labor.
