By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
David Vassalli
2016 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2010, an infant was born prematurely and with a severe white matter brain injury known as severe cystic periventricular leukomalacia, which is a brain issue that will lead to a lifetime of complications. Earlier that same year, the mother of the child went to her obstetrician for routine tests, which revealed she had high blood pressure and protein in her urine. These results are indicative of preeclampsia, a common but risky situation requiring the preterm birth of the baby. Given that the baby was to be delivered at about 26 weeks of gestation, her obstetrician, upon learning this information, should have referred her to a hospital equipped to deliver a baby at that stage of the pregnancy. However, the obstetrician referred her to a hospital qualified to deliver only infants that are more than 33 weeks gestation. This hospital lacked certain and necessary equipment and expertise for delivering infants that have yet to reach that level of maturity. Nevertheless, the mother had the baby delivered in the unqualified hospital, where there were complications that led to the infant’s injuries.
The mother and child sued the physician and unqualified facility for failing to transfer her to a qualified medical facility and for negligent care. The infant’s condition, white matter brain injury, could have been prevented or better treated by a qualified facility, the plaintiff said.
The jury awarded the mother and child $23 million in damages. The physician who failed to refer the mother to a qualified hospital was held 70% liable, and the unqualified hospital where the child was delivered was found 30% liable.
Background: After receiving a routine checkup at her obstetrician’s office, tests revealed that a pregnant woman carrying a 24-week-old fetus had protein in her urine and high blood pressure. These symptoms presenting themselves in the pregnant woman are clear signs of pre-eclampsia, a condition that typically presents itself after the first 20 weeks of pregnancy. Physicians suggest that even a slight elevation of blood pressure is a sign of preeclampsia.
The best cure is to deliver the baby prematurely, as this condition leads to serious complications for the fetus. Blood pressure is considered “high” when it is higher than 140 mmHg systolic or 90 mmHg diastolic two times after the 20th week of pregnancy. Given the severity of the situation, the obstetrician referred the female patient to a hospital for 24-hour monitoring of her urine and blood pressure.
The hospital to which the pregnant woman was referred is a Level 1 community hospital that does not deliver babies less than 33 weeks of maturity and is not a “high level care hospital.” Without ever having been transferred to a high level care hospital, the mother gave birth to the infant at 26 weeks gestation in the unqualified hospital. The infant was born with a white matter brain injury that led to severe cerebral palsy and the need for a lifetime of around-the-clock nursing care.
The mother contends that she never should have been transferred to anything but a high level care hospital that would have administered antenatal corticosteroids. That medication is required for women in a high-risk birthing condition between weeks 24 to 34 of pregnancy, and would have mitigated the damages to the infant’s brain. As such, the mother and child sued the obstetrician for failing to refer her to a qualified medical center, as well as the hospital where the baby was delivered for failing to administer the proper medication and for negligently attending to her pregnancy in an unqualified facility.
Alleging that the child would need around-the-clock medical care for her entire lifetime and the clear fault of the obstetrician and attending hospital, the mother and child requested $54 million in damages. After a three-week trial, the jury awarded them $23 million in damages. The obstetrician who failed to refer the mother was held 70% liable for the damages, and the unqualified hospital where the child was delivered was found 30% liable.
What this means to you: This case highlights the need to be cognizant of and adhere to guidelines set forth in existing systems, such as the different levels of care hospitals can provide.
The “levels” refer to the standard of care and resources available at a given hospital. They are applied throughout the United States and put forth by American College of Surgeons. The American Congress of Obstetricians and Gynecologists also sets guidelines for the treatment of preeclampsia including requirements for providing safe pre-term deliveries. When faced with a condition requiring a certain level of care, as in this case with the pregnant woman suffering from severe preeclampsia, the physician must adhere to these guidelines and refer the patient to a qualified facility.
The presence of pre-eclampsia signals a high-risk pregnancy. A competent obstetrician has systems in place to manage these pregnancies and/or qualified colleagues who are called in to assist.
A fetus at 26 weeks is extremely premature. The receiving facility would need not only trained labor and delivery staff, but at least a Level 2 Neonatal Intensive Care Unit that could manage the newborn or provide immediate transfer to a tertiary-care children’s hospital. From a legal standpoint, it becomes very easy to establish negligence when there is a well-known standard that the physician failed to observe. This situation can be seen in the current case, as the obstetrician failed to admit the patient to a qualified facility and the receiving facility failed to transfer the patient to a higher level of care, thus causing the infant to suffer an injury. That the mother could have received more sophisticated care, especially when there is a system in place to ensure that care, was enough to find liability against the physician who failed to adhere to the applicable standards. Familiarity and compliance with such systems are necessary to avoid liability.
Another lesson illustrated in this case is that, from a legal standpoint, due diligence always should be given to infant or minor patients. When calculating the damages for which a physician or hospital will be liable, the future medical expenses and pain and suffering are based in significant part on life expectancy and amount of time the patient will suffer the condition. Furthermore, infant and pregnancy-related cases hold a unique place in the heart of juries who will often instinctually be sympathetic toward an infant.
These two factors undoubtedly influenced the decision to award $23 million to the mother and child. As such, and with respect to the financial liability a physician or hospital might incur, the need to maintain the appropriate standard of care is enhanced when dealing with infants.
Lastly, this case shines a light on the need to adequately inform patients regarding the planned course of action. Had the mother in this case been informed of all the risks involved with her given treatment, and if the mother decided to move forward fully informed, the physician would have been better sheltered from liability.
However, when physicians fail to inform patients of all the risks, possible alternatives, and possible effects of those risks and alternatives regarding medical decisions, the physician takes away the patients’ right to choose the care they wish to receive from an informed standpoint. When an injury occurs, even one the physicians expected, failing to inform the patients of relevant information that facilitates them making an informed decision can quickly lead to avoidable and costly medical malpractice claims. As such, physicians can help shelter themselves from this type of liability by providing patients with all the information necessary to make an informed decision.
Florida Circuit Court, Charlotte County. Case Number 13-1984 CA (April 24, 2015).
