Brain Damage at Birth: A Malpractice Case Study
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Brain Damage at Birth: A Malpractice Case Study

INTRODUCTION

David Smith, age two, is severely brain damaged and lives in a near vegetative state as a result of a cascading torrent of malpractice set off by Defendant Michael Thomas, an obstetrician, who failed to properly test his mother for gestational diabetes. That malpractice was aggravated and accelerated into an avalanche by labor and delivery nurses, who failed to take appropriate action in caring for a baby in a breech presentation, a staff anesthesiologist, who ordered a respiratory therapist not to follow the national guidelines to resuscitate David when he was born with no heart beat and was not breathing and a staff neonatologist who administered an overdose of sodium bicarbonate and failed to provide necessary glucose to a newborn.

The names reported here are fictitious. The facts reported in this case study are contained in court documents in a medical malpractice case filed in California.

FACTS

On January 22, 2000, during her seventh month of pregnancy, plaintiff Mary Smith had an abnormal response to a diabetes screening test which meant she was at risk for gestational diabetes and that her baby was at risk for brain damage caused by gestational diabetes.

As a result, her obstetrician, Defendant Thomas, ordered a follow up three hour glucose tolerance test that was administered on January 29, 2000.

Mrs. Smith was given the wrong test.

Men and non-pregnant women are given 75 grams of glucose. Pregnant women always are tested with 100 grams of glucose.

Mary was given only 75 grams of glucose, which is confirmed on the face of the test report results provided to Dr. Thomas by the laboratory and reviewed by the physician. Even though given a low dose, Mary registered three (3) abnormally high scores: three red flags that she was at high risk for gestational diabetes.

Dr. Thomas admitted in his deposition testimony that 2 abnormal values required that the patient be referred to a specialist, which has been his practice in all other cases.

Mary was never referred to a specialist by Dr. Thomas to treat her gestational diabetes, never re-tested by Dr. Thomas and never told her diabetes test scores were high.

No one will ever know with exactness what Mrs. Smith would have scored had she been given 100 grams of glucose, but her scores would have had to have been even higher with 100 grams of sugar than they were with 75 grams of sugar.

No one will ever know because Dr. Thomas was too busy to order that the test be done properly.

Nonetheless, Dr. Thomas now claims to have diagnosed Mary's gestational diabetes, even though his chart is void of any such diagnosis or related entries. Dr. Thomas has no record of having recommended to this pregnant mother that she take any action for gestational diabetes. Mary Smith was not placed on oral medication or diet control and had no additional blood glucose monitoring during the rest of her pregnancy.

Mothers with gestational diabetes develop water-logged or diabetic placentas which do not function normally, do not deliver necessary oxygen to the baby's blood supply and do not allow the baby's waste products to be discharged and excreted by the mother. Low oxygen and highly acidic blood in these babies places them at high risk for stillbirth and in the event of survival at a high risk for brain damage, such as suffered by David.

At 9: 30 a.m. on April 15, 2000, Mary had spontaneous rupture of her membranes, called Dr. Thomas's office and was admitted to Seaside Hospital at 10:30 a.m.

By 10:45 a.m. Mrs. Smith was placed on a fetal heart monitor and at 11:15 a.m. the nurses performed an ultrasound, which confirmed Dr. Thomas's earlier reports over the previous six weeks that David was a breech presentation.

Breech babies are at high risk for brain damage as a result of cord compression.

At 11:30 a.m. the labor and delivery charge nurse called Dr. Thomas and reported Mary had rupture of membranes, meconium [fetal feces] on vaginal exam [a common sign of distress expected in breech babies], a breech baby on ultrasound, and a fetal heart pattern that did not show normal variability.

Dr. Thomas admitted in his deposition testimony that the presence of meconium means a baby should be delivered "sooner" as opposed to later, despite the fact that he dallied and delayed in getting to the hospital.

"Normal variability" or "non-reassuring variability" is significant. David's fetal heart monitor tracings are flat. There is none of the ebb and flow seen with healthy babies. No ups. No downs. That is not what one expects or wants to see.

David's heart rate was static because he was

1. in a weakened state as a result of gestational diabetes which results in oxygen depleted blood contaminated with the infant's waste products;

2. suffering oxygen deprivation secondary to cord compression and breech presentation, or

3. all of the above.

At 11:30 a.m. because of his schedule of office patients, Dr. Thomas told the Seaside nurse that he had "45 minutes more" in his office and would be at Seaside Hospital to perform Mary's Cesarean Section at 12:15 p.m.

Dr. Swift, Seaside's on-call anesthesiologist, and Dr. Gordon, Seaside's on-call neonatologist,were also notified at 11:30 a.m. of the Caesarean Section planned for 12:15 p.m.

At 11:53 a.m. Mary's fetal heart monitor displayed a severe slowing of David's heart rate. The Seaside nurses called Dr.Swift to labor and delivery for an immediate C-Section.

When he arrived at the nurses' station, Dr. Swift was told the baby's heart pattern had "normalized," i.e. returned to its static, non-variable level, and so Dr. Swift was dismissed by the nurses in charge of David's and Mary's care. He returned to the anesthesia on-call room.

The labor and delivery nurses did not call Dr. Thomas to report the severe slowing of David's heart rate, did not make a chart entry regarding this event as they were required to do and did not consult the hospital's on-call obstetrician.

The nurses now claim that the severe slowing of David's heart rate was due to moving the dopplerprobe for the fetal heart monitor during Mary's "shave and prep." But, progress records show that the "shave and prep" was performed at 12:05 p.m., not 11:53 a.m.

Despite their claims to the contrary, there is no reasonable explanation why the 11:53 a.m. rapid deceleration of David's heart [a heart attack for our purposes], which was sufficiently severe to call Dr.Swift for an emergency C-Section, was not entered in the chart, why there are two entries at different times for "shave and prep" in these records and why Dr. Thomas was not called instanter.

At 12:15 p.m. a Seaside nurse called Dr. Thomas to find out why he was not at the hospital for the Caesarean Section.

Dr. Thomas reported he was busy seeing patients in his office and at first thought he would perform the Caesarian Section "later" at 1:30 p.m. But after speaking to the nurse decided he would do the Caesarian Section at 1:00 p.m.

At 12:21 p.m. David's heart crashed to a halt. In the trade this catastrophic event has been given a sanitized term which obscures the truth that it is a severe heart attack and it is referred to as a "severe deceleration."

A "severe deceleration" at 12:21 p.m. makes it all the more likely that the 11:52 a.m. "slowing" of David's heart rate was in fact evidence of severe distress and the first sputtering of his tiny heart before it finally gave out.

As of 12:21 p.m. David's blood, as incapable as it was of delivering oxygen through a diabetic placenta, was no longer circulating at all. The pump stopped working because it was out of gas, in this case oxygen gas.

At 12:21 p.m. Mary was rushed to the operating room and all doctors were called for an emergency Caesarean Section.

From 10:45 a.m. until David's heart stopped at 12: 21 p.m., the labor and delivery nurses made no attempt to determine whether Mary's the "non-reassuring" fetal heart pattern was a normal fetal sleep pattern or was due to oxygen starvation and hypoxia.

Seaside nurses easily could have made this determination: by changing the position of the mother, by giving Mary oxygen by mask, or by using acoustic stimulation to wake a sleeping baby. None of these things were done.

Dr. Thomas responded to the emergency call at 12:44 p.m. and David was delivered by Cesarean Section at 12:45 p.m.

At 12:45 p.m. David's Apgar score was zero on a scale of ten.

David was born with no heartbeat and was not breathing.

From 12:45 p.m. until 12:56 p.m. Dr. Swift, the on-call anesthesiologist, was unable to resuscitate David, largely because he refused to follow standard procedures well known by the Neonatal Intensive Care Unit nurses and staff in attendance in the operating room.

Even though it is beyond belief, Dr. Swift ordered the respiratory therapist not to suction the meconium from David's airway, even though that is the standard procedure required by the Neonatal Resuscitation Program guidelines [the recognized Bible on infant resuscitation] before an endotracheal tube is insert. He inserted the endotracheal tube nonetheless, pushing the fecal matter deeper and deeper into David's lungs.

As a result of Dr. Swift's gross violation of a widely recognized standard of care, David developed meconium aspiration syndrome which required placing him on a ventilator and resulted in compromise of his pulmonary function.

In a further demonstration of his incompetence in a crisis, Dr. Swift would not allow the respiratory therapist and the neonatal intensive care unit nurse to synchronize their chest compressions and ventilations in a three to one pattern, as required by their training and by the Neonatal Resuscitation Program guidelines.

Instead, Dr. Swift demanded the respiratory therapist "bag" David, i.e. squeeze the oxygen bag, between continuously administered chest compressions, thereby minimizing the effectiveness of both the chest compressions and the ventilations. This was also another direct violation of the standard of care for resuscitating newborns set forth in the NRP guidelines.

The concept "first, do no harm" was ignored by Dr. Swift and in all that he did Seaside Hospital's Dr. Swift was deplorably incompetent and in outrageous violation of the standard of care. As a result Dr. Swift obliterated any chance for the immediate resuscitation of David and thereby prolonged his asphyxia and increased his brain damage. Under Dr. Swift's control, David's Apgar score of zero remained the same at 3 minutes, 5 minutes and at 10 minutes was still "zero."

At 12:56 p.m. Dr. Gordon, the on-call neonatologist, arrived at the operating room 41 minutes after he was supposed to be there for the planned C-Section at 12:15 p.m. and 35 minutes after the 12:21 p.m. call for the emergency Cesarean Section, despite Seaside Hospital's 30 minute on-call rule. Dr. Gordon had an obligation to be present at David's birth to avoid the tragic debacle created by Dr. Swift.

Because David did not have good breath sounds with Dr. Swift's placement of the endotracheal tube, Dr. Gordon removed the endotracheal tube and then re-intubated David .

At approximately 12:57 p.m. Dr. Gordon punctured David's heart with a needle to administer epinephrine.

David's heart responded at 12:57 p.m. He had been officially without a heart beat since 12:21 p.m., a total of 36 minutes.

Using the same needle, after injecting David's heart with epinephrine, Dr. Gordon next injected 10 cc of sodium bicarbonate directly into the heart. Sodium bicarbonate is administered to severely hypoxic infants to neutralize blood acids. David's blood was severely acidic, he was in acidosis and he sorely needed the neutralizing effect of sodium bicarbonate, but the manner in which the sodium bicarbonate was administered by Dr. Gordon made a tragically bad situation worse.

Dr. Gordon knows that is the case and now claims he injected the sodium bicarbonate to David's heart slowly over five minutes.

Dr. Gordon takes that position today because what he actually did is deplorably wrong. It is universally recognized that a large dose of sodium bicarbonate quickly administered into the heart can cause brain damage. The Neonatal Resuscitation Program guidelines warn against direct injection of sodium bicarbonate into the heart because it causes brain damage. Everyone has known that for a long time.

The respiratory therapist reports that it only took Dr. Gordon about 15 seconds to squirt the sodium bicarbonate into David's heart and that is confirmed by the nurse's notes which show that the heart needle was withdrawn from the baby at 12:58 p.m.

This blast of sodium bicarbonate directly into David's heart caused further brain damage.

Despite the need to neutralize his acidosis, David did not receive any additional sodium bicarbonate until 3:30 p.m. when 20 cc was administered by slow IV, as required by the Neonatal Resuscitation Program guidelines.

The defendant's expert neonatologist has testified that a newborn's blood glucose should be measured "as soon as possible" following a resuscitation in order to avoid seizures and lethargy.

David had the first of a series of seizures at approximately 1:15 p.m. and was profoundly lethargic following his resuscitation.

Dr. Gordon never measured David's blood glucose until 2:20 p.m. At that time it was only 28 mg/dl, when it should have been 100.

David did not receive additional glucose until 3:00 pm.

Even though Dr. Gordon remained at Seaside Hospital until 9:00 p.m. on April 15, 2000, when David was transferred to Children's Hospital, David was starved and without nutrition until 3: 00 p.m. and never properly given appropriate sodium bicarbonate by slow IV to further neutralize his acidosis until 3:30 p.m. There is no explanation for these delays and they are inexcusable.

There is no doubt that a Caesarian Section before 11:52 a.m. would have avoided David's severest injuries and that proper testing for gestational diabetes would have avoided weakening David and undermining his ability to cope with the challenges of a compressed cord in a breech birth.

Mary Smith has given birth to a second child. Mrs. Smith's new OB/GYN diagnosed and treated gestational diabetes in the family's second pregnancy and on June 1, 2001 Kathryn was born healthy with an Apgar score of 8-9 and free from the brain damage that plagues David and his parents every moment of their lives.

DAMAGES

Although David has a feeding tube in his stomach, and has been left severely hard of hearing and virtually deaf, cortically blind and requires 24-hour around-the-clock care, his life expectancy, with continued good medical care, is 20 years of age.

The present cash value of maintaining David with attendant care and medical services over the next 18 years is $6,445,382.00; this is a fully amortized sum necessary to pay for all David's care over his life expectancy. After accumulations of interest and deductions for expenditures, the fund balance will be zero at the end of David's 20th year.

David's medical expenses to date are $444,027.61.

David's total economic damages are $6,889,409.61.

General damages for David's parents, Mary and John Smith, are $100,000,000.00.

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