Newborn Brain Injury Due to Delayed Delivery – November 15, 2023
On November 15, 2023, WVFK&N attorneys Mary Koch and Sarah Smith filed a medical malpractice claim on behalf of a newborn who suffered an avoidable brain injury.
The complaint alleges that on November 30, 2021, the child’s mother was 39 weeks and 2 days gestation when she presented to Bayhealth Medical Center at approximately 19:56 for an induction of labor in the setting of Class II obesity. Continuous fetal monitoring was initiated at approximately 19:59.
The History and Physical, which occurred on the mother’s arrival, states that the mother was 2 centimeters dilated, 70% effaced, and the baby was at -2 station. The fetal heart tracing (“FHT”) was noted to have a baseline of 150 beats per minute (“BPM”), moderate variability, accelerations present, and no decelerations. However, the tocometer showed irregular contractions. A foley balloon for cervical ripening was placed at approximately 21:34.
A sterile vaginal exam on December 1, 2021, at 09:05, indicated that the mother was 6 centimeters dilated, 80% effaced, and the baby was in the cephalic presentation at -3 station. A later exam, which occurred at 12:22, indicated that the mother was 6 centimeters dilated, 80% effaced, and the baby remained in the cephalic presentation at -2 station. Artificial rupture of membranes occurred at 12:24 with a moderate amount of clear fluid and no odor. Around this time, the mother began experiencing intense pain, and she requested pain medication.
At 14:55, the FHT revealed that decelerations were occurring, and the tocometer revealed that the mother’s contractions were not tracing well. A vaginal exam at 15:16 indicated that the mother was still 6 centimeters dilated and 80% effaced, but the baby was now at -1 station. At 15:45, contractions were occurring every 1.5–4 minutes, each lasting 70–80 seconds. From 16:30 to 16:45, the FHT showed a baseline of 160–165 BPM, minimal to moderate variability, and late and variable decelerations. Uterine activity was described as contractions every 1–3.5 minutes, each lasting 60–80 seconds.
By 23:39, the mother was still noted to be 6 centimeters dilated, 80% effaced, and the baby was at -1 station (these were the same at 23:51, as well). Her providers noted that she was not yet in active labor, and they refused to consider the induction a failure, meaning that they would have the mother continue trying to deliver the baby vaginally.
At 2:13 a.m. on December 2, 2021, the mother was 8 centimeters dilated, 90% effaced, and the baby was at 0 station. The FHT showed a baseline of “120s,” moderate variability, accelerations present, and no decelerations. Uterine activity is described as moderate-strong contractions every 1.5–2 minutes, each lasting 40–60 seconds. At this point, the mother was noted to be in active labor.
At 04:04, a sterile vaginal exam revealed that the mother was 9.5 centimeters dilated, 90% effaced, and the baby was at +1 station. At 04:30, the mother tested pushing, bringing about a variable deceleration.
At 05:30, the doctor was called to evaluate the FHT due to its consistently non-reassuring signs. At 05:40, despite what happened at 04:30, the providers had the mother try another test push, which brought about another deceleration. At 05:45, the doctor acknowledged the non-reassuring status of the FHT and the recurrent late and variable decelerations. Still, he decided to reevaluate the mother’s status later and did not decide to call a cesarean section.
At 05:47, the mother developed tachysystole and a fever. At 06:10, the mother had remained 9.5 centimeters dilated, 90% effaced, and the baby was at +1 station. Additionally, the mother’s providers had her test pushing yet again, which resulted in the baby’s heart rate decreasing to 80 BPM.
At 07:23, the FHT showed no baseline, minimal variability, and two late decelerations. Uterine activity was noted as contractions every 5 minutes. A narrow pelvic outlet, arrest of dilation, and non-reassuring fetal heart tracing were also noted. Only at this juncture did the providers determine that the baby needed to be delivered via cesarean section. At 07:40, the cesarean section became “stat,” meaning that it was necessary to occur as soon as possible for the safety of the baby. At both 07:40 and 07:50, the FHT was Category 3 with a sinusoidal pattern, meaning that the baby was experiencing severe distress. At 07:51, continuous fetal monitoring was discontinued to move the mother to the operating room for a stat cesarean section, and the final fetal heart rate was noted to be 125 BPM. At 08:11, a nurse notified the Neonatal Intensive Care Unit (“NICU”) by phone to attend the delivery, meaning that the mother’s providers foresaw the baby needing intensive care as soon as delivery was complete.
The baby was delivered by cesarean section at 08:18 with Apgar scores of 1, 6, and 7 at 1, 5, and 10 minutes, respectively. The baby had no spontaneous respiratory effort and poor tone. Positive pressure ventilation (“PPV”) was initiated, and the baby was intubated at 2 minutes 29 seconds of life. Spontaneous respiratory effort was noted by 5 minutes with improved tone, but still no suck or gag reflex. Umbilical artery blood gas revealed a pH of 7.204 and a base excess of -6.0. Passive cooling was started, and the baby was transferred to the NICU. A blood gas at one hour of life had a pH of 7.28 and a base excess of -15.
The baby was transferred to Christiana Hospital for therapeutic hypothermia due to moderate hypoxic-ischemic encephalopathy. Today, the baby suffers from hypoxic-ischemic encephalopathy, developmental delay, a history of seizures as a newborn, and spastic quadriplegic cerebral palsy.
The lawsuit alleges that the injuries were a result of the negligence of Bayhealth Medical Center and its employees in failing to timely respond to clinical signs and failing to timely deliver the baby.
The action is pending in the Superior Court for the State of Delaware.
