$78.5 million verdict blamed on poor maintenance, documentation
OB says fetus is dead after faulty ultrasound, then C-section delayed 81 minutes
A jury in Philadelphia has awarded a family $78.5 million on behalf of a child who suffered severe brain damage as a result of a delayed cesarean section, and legal experts are warning that the case illustrates a risk that can go overlooked in hospitals. Maintenance of equipment might seem a mundane issue, they note, but failure to properly maintain crucial machinery – and document that maintenance – can lead to a significant verdict such as the one in Philadelphia.
The family obtained a $78.5 million verdict on behalf of the now 3-year-old child who has severe spastic quadriplegic cerebral palsy. The cerebral palsy resulted from an 81-minute delay in performance of an emergency cesarean section delivery. The damages award against Pottstown Memorial Medical Center in Philadelphia includes payments for future medical care, lost earnings, pain and suffering for the baby, as well as emotional distress for the baby's mother, Victoria Upsey.
"Birth injury cases are always emotional matters, but the facts of this case were particularly shocking because the reason this delivery was delayed was that the obstetrician thought the baby was dead," says Daniel S. Weinstock, JD, of the law firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in Philadelphia, who represented the family in the case. "He performed an ultrasound examination with outdated, insensitive, and poorly maintained equipment provided to him by the hospital. He actually told my client her baby had died, then 81 minutes later, the baby had come back to life."
The case arose in August 2008 when Upsey, then 36 weeks pregnant, presented to the hospital with signs of a placental abruption. Fetal monitoring was inconclusive, which led the obstetrician to perform a bedside ultrasound examination. Weinstock and G. Scott Vezina, JD, also of the law firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, submitted evidence in the case that the ultrasonography equipment provided by Pottstown Memorial Medical Center was antiquated and lacked the sensitivity of modern ultrasound machines. When questioned by Weinstock during the trial, the hospital's risk manager admitted there was no evidence the equipment had even been serviced for more than 10 years, whereas the manual indicates that annual maintenance is necessary.
'100% certainty' it was proper
Throughout the discovery process, during his deposition and even when first questioned during trial, the obstetrician steadfastly maintained with "100% certainty" that he performed the ultrasound properly, Weinstock says. The doctor said the reason he did not identify the fetal heartbeat is because the baby had died, and he insisted that the baby then "came back to life" some 81 minutes later.
The hospital did not have an ultrasound technician present in the hospital because it was a Sunday, and the plaintiffs contended that not having one present amounted to hospital administration negligence. The technician had to come from home to verify the obstetrician's incorrect findings. A spokesperson for Pottstown Memorial Medical Center declined Healthcare Risk Management's request for comment, other than to say hospital leaders are disappointed in the verdict and plan to appeal.
The award is thought to be the largest medical malpractice award in Pennsylvania. Daniel P. Slayden, JD, a partner with the law firm of Hinshaw & Culbertson in Joliet, IL, says the verdict might be the largest he has ever seen in a birth injury case.
"That's huge. Normally in these types of cases, you'll have future health care costs in the $10 million to $12 million range, plus pain and suffering and some other liability," Slayden says. "In my 20 years of experience, I don't think I've ever seen one that large."
Most birth injury cases do not go to trial because there is significant risk on both sides, Slayden says. It is likely that the hospital offered a settlement and the plaintiff wanted more, and then both parties decided to gamble by going to a jury. In this case, the gamble paid off big for the plaintiff, he says.
The jury probably focused much more on the emotional aspects of the case because the medical issues were relatively simple, says Jonathan Rosenfeld, JD, a partner with Rosenfeld Law Offices in Chicago. Unlike some medical malpractice cases in which the clinical issues are complex for a lay jury, this case was relatively straightforward, he says.
"A lot of times the jury never gets past the negligence issue because it is so complex, but here I think they understood the negligence quickly and easily," Rosenfeld says. "That freed them to focus on the damages."
The case should serve as a reminder that huge awards are always possible, particularly in birth injury cases, Rosenfeld says. Most medical malpractice cases are decided in favor of the defendant, but relying too heavily on that statistic can mean trouble, he says.
"You can say that about 80% of cases are won by the defendant, but you have to look at your case in particular," Rosenfeld says. "If this is a case in which there clearly is negligence, it may stand out from that 80% of typical cases. This may be a case you want to resolve before trial."
Lack of documentation was key
Slayden notes that the risk manager's admission that there was no evidence of maintenance on the machine must have influenced the jury. Hospitals should have a policy requiring service on equipment that complies with the manufacturers' suggestions, he says.
Documenting that maintenance is extremely important, Slayden says, but too often it can be overlooked because it is not seen as a direct patient care activity. In the Pottstown Memorial case, he says it is unlikely that the ultrasound machine had never been calibrated or maintained for 10 years, but the risk manager was unable to provide any documentation to prove the maintenance.
"Documentation has to be there. With nursing, a lot of times we can argue that it's their custom and practice, and even though they didn't document it this one time, we know they did it because they have always done it that way for years," Slayden says. "If the engineer comes in and says he didn't document the maintenance, but he's sure he did it over the past 10 years, imagine the cross examination that opens up for him. You did all the maintenance for 10 years, and you don't have documentation of even one instance?"
Maintaining equipment is not enough, however. Obstetrics should be given special consideration regarding diagnostic equipment because the potential effects of a wrong diagnosis, as in this case, are extraordinary, says Herbert S. Subin, JD, partner with the law firm of Subin Associates in New York City. The maintenance and calibration of this equipment might need to be performed even more often than required by the manufacturer, he suggests.
There also should be a policy in place that requires the engineering department or individual clinical units to review key equipment periodically and determine if newer, better versions are available, Slayden says.
"You don't have to change it every time a new model comes out, but after 10 years, that equipment might be obsolete," Slayden says. "There may be better machinery out there, and you don't want to be in court trying to explain why you're using what is, in relative terms, an antique."
Sources
Jonathan Rosenfeld, JD, Rosenfeld Law Offices, Chicago. Telephone: (847) 835-8895. Email: [email protected].
Daniel P. Slayden, JD, Hinshaw & Culbertson, Joliet, IL. Telephone: (815) 740-5004. Email: [email protected].
Herbert S. Subin, JD, Subin Associates, New York, NY. Telephone: (847) 265-4065.
G. Scott Vezina, JD, Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig, Philadelphia. Telephone: (215) 567-8300. Email: [email protected].
Daniel S. Weinstock, JD, Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig, Philadelphia, PA. Telephone: (215) 567-8300. Email: [email protected].
A jury in Philadelphia has awarded a family $78.5 million on behalf of a child who suffered severe brain damage as a result of a delayed cesarean section, and legal experts are warning that the case illustrates a risk that can go overlooked in hospitals.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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