Rebecca Fielding went into labor on March, 25th, 2010 in her home. Fielding was 10 days past her due date and was in labor for 14.5 hours during the first stage of labor, and at least 5 hours during the second stage. She had decided to have a natural birth with a woman who was registered as a nurse / midwife. During labor, the midwife discovered that the baby was not in the proper position, which was making it difficult for the baby to progress through the birth canal. The baby was in the occiput posterior (OP) position, which means his head was down, but unlike a normal position, the baby was facing forward, with his back to his mother’s spine. This position makes it very difficult to progress through the birth canal because it prevents the baby from tucking in his chin. At 12:30 a.m., in an attempt to speed up delivery, the midwife injected Fielding with Pitocin multiple times. Pitocin (oxytocin) is a drug used to expedite delivery by increasing the strength and frequency of contractions. Misjudging the stage of labor, the midwife performed an episiotomy, which is a procedure performed upon immediate delivery in which the perineum is cut in order to enlarge the vaginal opening. Finally, the midwife directed Fielding to cleanse herself with a probiotic treatment, as an alternative to taking antibiotics, in order to prevent the potentially fatal transmission of Group B Strep (for which Fielding had tested positive) to the baby during delivery. None of these interventions worked, and the midwife “decided it was time to go to the hospital.” The midwife sutured the episiotomy and called an ambulance, which took Fielding to Johns Hopkins Hospital.
Fielding arrived at the hospital at 3:30 a.m. on March 26th. The hospital team evaluated Fielding and applied a fetal heart monitor. The medical records indicate that the baby was at a +1 station, which means that the baby’s head was engaged (at a 0 station, the baby’s head is even with a certain part of the mother’s pelvic bone, and at +5 station, the baby’s head crowns and emerges from the vagina). The baby remained at a +1 after the physicians gave Fielding a chance to push a few times. At 3:45 a.m., the physicians decided that she would not be able to deliver vaginally and that an “urgent” rather than an “emergency” C-section was required. One reason for this decision, the physicians stated, was because the fetal heart rate monitor indicated that the baby was adequately oxygenated. An urgent C-section is one that must be performed as soon as possible, but there is time to have the mother’s blood tested, etc. An emergency C-section is one that must be completed immediately; no blood or other tests are performed.
The physicians received all the test results they wanted at 4:57 a.m. One of the drugs they wanted to administer to Fielding was penicillin to reduce the risk transmitting GBS to her baby. The medical team made other pre-delivery preparations, and baby Enzo Martinez was delivered at 5:40 a.m. (almost 2 hours after an urgent C-section was ordered) in very poor condition. He was later diagnosed with cerebral palsy, intellectual disabilities and other disorders.
A lawsuit was filed against Johns Hopkins Hospital alleging that the hospital negligently failed to perform a timely C-section. Baby Enzo’s lawyer argued that, had the baby been delivered earlier, as the standard of care required, Enzo would not have suffered injury. In addition, Enzo’s lawyers argued that Johns Hopkins failed to recognize the signs of fetal distress.
Prior to the case going to trial, Enzo’s attorneys filed a motion seeking to exclude testimony regarding the standard of care applicable to the midwife and her alleged breach of that standard while treating Fielding. In response to this, Johns Hopkins argued that the presentation of both were relevant to the hospital’s defense that it was not negligent and that the hospital was not the cause of baby Enzo’s injuries. In support of these assertions, Johns Hopkins attached an order from the Maryland Board of Nursing, which had suspended the midwife’s certification and license to practice as a nurse / midwife. The order stated that the Board had never authorized the midwife to perform deliveries in the home and concluded that she had violated the Nurse Practice Act based upon the care she provided to Fielding and other patients. In fact, the midwife was linked to five other cases, including one that resulted in the death of a newborn. Johns Hopkins attached deposition testimony from physicians indicating that actions taken by the midwife were no longer used during labor and deliveries and that the actions may have contributed to the baby Enzo’s injuries.
The trial court granted the motion to exclude the testimony.
The trial lasted two weeks and the jury awarded baby Enzo and her family $4 million for lost wages, $25 million for future medical expenses and $26 million for non-economic damages.
Johns Hopkins and baby Enzo both appealed.
On appeal, Johns Hopkins argued that the evidence regarding the standard of care for a midwife and the midwife’s alleged breach of this standard were relevant to its defense that the midwife’s negligence was the sole cause of baby Enzo’s brain damage prior to Fielding arriving at the hospital. Johns Hopkins also argued that the evidence was relevant to explaining why the C-section took place when it did. Johns Hopkins stated that it had to perform additional evaluations to determine the effect the midwife’s negligence had on the baby and mother before performing the C-section.
Baby Enzo’s attorneys argued, among other things, that the trial court acted properly in excluding the evidence, and that Johns Hopkins defense was not contingent upon a finding that the midwife violated the standard of care.
The Court of Special Appeals reversed, holding that the trial court made a mistake when it forbade evidence of the nurse / midwife standard of care and when it forbade evidence of a breach of that standard by a nurse / midwife while treating Fielding. The appellate court also ordered a new trial.
The trial judge had reasoned that the standard of care pertaining to the midwife was irrelevant. “While the trial judge’s inferences are reasonable, his rationale does not recognize the other obvious possibility; namely, that Midwife Muhlhan breached her standard of care, and that the breach was the sole cause of Martinez’s injuries. This was precisely the defense advanced by the Hospital at trial. Thus, the relevant inquiry on appeal is whether evidence of a non-party’s negligence is relevant to a defendant’s complete denial of liability,” the appeals court said.
The appeals court further stated that Johns Hopkins was entitled to try to convince the jury that, not only was it not negligent and not the cause of baby Enzo’s injuries, but that the midwife was negligent and caused the injuries. By precluding such evidence, the jury was given a materially incomplete picture of the facts, which denied the hospital a fair trial.
BIRTH INJURY CASES CAN BE VERY COMPLEX
Another reason it is important for a birth injury attorney to be experienced is due to the fact that oftentimes, birth injury cases involve numerous complex medical issues. Medical records can be extremely lengthy and difficult to read; they contain formats, abbreviations and symbols that are usually understood only by medical personnel. An experienced birth injury attorney is familiar with these records and knows how to find evidence of negligence. A skilled and experienced attorney is also familiar with standards of care applicable to the wide array of disorders and complications that can cause birth injuries.
COMPLICATIONS IN BABY ENZO’S BIRTH
Failure to appropriately manage a baby who is malpositioned
When a baby is not in the normal, head first position, and is malpositioned, as in breech or face presentation, delivery can difficult. OP is another position that can make delivery very difficult. Expectant management (allowing labor to progress naturally) of a baby in OP position is only appropriate when there is a reassuring fetal heart rate, favorable clinical pelvimetry (the mother’s pelvis is large enough to allow the baby to progress through the birth canal), and continued progress in the second stage of labor. OP position is associated with labor abnormalities and a variety of neonatal complications, such as a low Apgar score, acidic blood in the baby (which means the baby is not oxygenating well), meconium stained amniotic fluid (the baby is likely to have inhaled stool into his lungs), birth trauma (head injury and brain bleeds), and the need to be in an intensive care unit after birth. Thus, delivery should occur in a timely fashion, especially if the fetal heart rate is not known or is nonreassuring.
Manual rotation (internal rotation of the baby by the physician’s hand) of a baby in the first stage of labor is not recommended because it could lead to disengagement of the head or umbilical cord prolapse. Sometimes forceps are used for rotation, but experts state that this intervention, which involves insertion of a delivery instrument that looks like salad tongs, should be reserved only to those experienced and skilled in forceps use due to the high risk of complications.
Use of forceps and another delivery device, called a vacuum extractor, to assist with vaginal delivery can be used if the baby is in direct OP position. But again, the physician must have skill and experience in using the delivery device chosen, and the mother must meet certain criteria before delivery instrument use can occur.
In baby Enzo’s case there was no fetal heart monitor used when the midwife first discovered him to be in OP position. Furthermore, there was dispute about whether Enzo’s heart rate was reassuring at the hospital; experts presented by Enzo’s attorneys contended that the baby’s heartbeat had become nonreassuring by 4:00 a.m., just 30 minutes after arriving at the hospital. Since no fetal heart monitoring was done from the time the midwife discovered that Enzo was in OP position (sometime before 12:30 a.m.) until sometime around 3:30 a.m., baby Enzo could have had numerous episodes of non-reassuring heart tracings before arriving at the hospital.
Indeed, a non-reassuring heart rate means that the baby must be delivered immediately. Another indication that baby Enzo should have been delivered emergently by C-section is the fact that the second stage of labor was not progressing.
Failure to properly monitor a baby during labor and quickly perform an emergency C-section
An electronic fetal monitor records the mother’s contractions and the baby’s heart beat in response to contractions. When a fetal heart monitor is nonreassuring, it means that the baby is in distress and is not getting enough oxygen (called hypoxia), and prompt and appropriate actions must be taken. In fact, a nonreassuring fetal heart tracing is often the only indication that a baby is in distress. In many cases, an emergency C-section is indicated when this occurs. An emergency C-section is required when a baby has a nonreassuring heart tracing and is in OP position. The baby must be removed from the conditions causing the hypoxia.
When required, an emergency C-section should be performed as quickly as possible, and many times it should be performed within 10 – 18 minutes or less.
Tragically, Enzo was left in stressful, oxygen-depriving conditions and he was born in poor condition and suffered permanent brain damage. When a baby is oxygen-deprived, the hypoxia can get progressively worse. Mere minutes can make a difference in how much damage hypoxia inflicts on the brain. When distress occurs, there is no room for physicians to gamble that a baby will be okay inside the womb.
Indeed, small amounts of time can make a difference during birth when fetal distress and other complications are occurring, which is why it is imperative that hospitals with be fully prepared to timely deliver a baby by C-section. This means that the facility must have proper anesthesia and surgical personnel to permit the start of C-section delivery within 30 minutes of the decision to perform the procedure, according to guidelines set forth by the American Congress of Obstetrics and Gynecology (ACOG) and the American Society of Anesthesiologists (ASA). Furthermore, experts state that in certain cases, a C-section must be performed in a matter of minutes, and in more serious conditions, such as when a baby is OP position and has a nonreassuring heart rate, delivery must occur as soon as possible.
Use of Pitocin
Pitocin causes frequent and strong contractions and because of this, a condition called hyperstimulation can occur. Hyperstimulation means that the contractions are so fast and strong that it is essentially as if the uterus is in a constant state of contraction. When the uterus (womb) contracts, blood vessels are impinged upon and this impingement hinders that ability of oxygen-rich blood to be transported to the baby. In a state of contraction with almost no breaks, a baby could be receiving very little oxygen or almost no oxygen at all. In fact, Pitocin has been labeled a high risk drug by the Food and Drug Administration (FDA). Due to this, it is critical that a baby’s heart rate be continuously monitored and closely watched when Pitocin is administered.
Baby Enzo had no fetal monitoring for at least 3 hours after Pitocin was administered. This violates standards of care and is considered negligence.
Group B Strep (GBS)
GBS is a bacterium that is part of the normal flora of the gut and genital tract. When a GBS infection occurs, it means there is too much GBS present, and this infection can cause servere illness and death in newborns who are exposed to it. Babies can be exposed to the bacteria during delivery if they come into contact with it in the birth canal. When a mother has a GBS infection, the rate of transmission to the baby is approximately 50% during vaginal delivery. It therefore is crucial that a mother be given appropriate antibiotics to prevent the baby from GBS infection. Antibiotics such as penicillin are typically given during labor to prevent transmission of the infection.
Generally, the type of birth (C-section versus vaginal delivery) does not affect how a physician will proceed with regards to GBS prophylactic treatment. What is most important is whether the baby is exposed to the bacteria and how best to protect him or her from possible infection. If the water remains intact, the baby is not exposed to the bacteria. And if it is broken, the baby is exposed. The antibiotics will wipe out the bacteria in the vagina, and they will transfer to the baby to help him or her fight a possible infection.
The midwife treated the GBS by using a probiotic, which is not the standard of care for treatment. Fielding was in labor for at least 3 hours (probably a lot more, given the timeline of events) before the proper treatment, penicillin, was administered. This constitutes negligence. In addition, it appears as though the hospital may have waited for test results before administering the penicillin. The physicians were aware that Fielding had GBS. If a baby is about to be born, treatment of GBS should be administered immediately. In fact, even if a mother is suspected of having GBS, the standard of care is to quickly administer an appropriate antibiotic. GBS is very serious, and a medical team should not risk exposure to the baby.
HELP FOR FAMILIES WHOSE BABIES HAVE CEREBRAL PALSY AND INTELLECTUAL DISABILITIES
When a baby suffers from permanent brain damage as is the case with baby Enzo, it is devastating. When negligence on the part of trusted medical personnel causes the damage, it is especially tragic.
Failure to properly monitor a baby who is in a high risk situation is considered negligence. In addition, failure to properly interpret the fetal heart tracings and recognize distress also constitutes negligence. Failure to properly treat a maternal infection and failure to quickly deliver a baby by ermegency C-section when indicated is negligent behavior. When this negligence causes injury in the baby, it is medical malpractice.
Due to the complex nature of birth injury cases, it is imperative to have skilled and experienced attorneys. At Reiter & Walsh ABC Law Centers, our attorneys will research your case, find the cause of injury and determine if negligence occurred. For decades, we have been helping families in Michigan and throughout the nation, and we have numerous multi-million dollar verdicts that attest to our success. We will fight to obtain the compensation you and your family deserve for lifelong care, treatment and therapy of your child, and you never pay any money until we win your case. Call us at 888-419-2229.