Jury Finds Fault With Midwife’s Care

During her pregnancy, a Wisconsin woman received care from a nurse-midwife. In late July 2001, misoprostol was administered to induce labor. The woman was admitted to the hospital in active labor at approximately 2 pm. She was 6 cm dilated. Dilation arrested three times, and then there was a two-hour failure to dilate.

The nurse-midwife then tried putting the mother in a water-birthing tub to stimulate contractions, without success. Oxytocin was then administered. Immediately thereafter, the patient developed uterine hyperstimulation, and the fetal heart rate strip showed late decelerations, indicative of fetal distress.

Despite these abnormalities, the nurse-midwife continued increasing oxytocin throughout labor, which continued for about 12 hours. The oxytocin dose exceeded the hospital’s recommended protocols. The patient reached a point at which she was having strong contractions every 1.5 min. Full dilation was not reached until 10:38 pm.

Around midnight, the electronic fetal monitor allegedly showed an abnormal heart pattern, with decelerations with almost every contraction. The mother was allowed to continue with labor, and the fetal monitoring equipment was removed at 1:26 am so the mother could be placed in the water-birthing tub again. Nurses took the fetal heart rate during this time and recorded it as normal.

When the child was delivered at approximately 2 am, she had a heart rate of 80 beats/min; she was apneic, cyanotic, and virtually lifeless. Apgar scores were recorded as 1 at one minute and 3 at five minutes. Arterial blood gas/pH was 7.165.

An attending physician was called and arrived within 20 min. The infant was resuscitated, intubated, and transferred to another hospital. A CT scan taken at 56 hours of life was read as normal. An MRl at nine months was also read as normal.

The child was subsequently diagnosed as having cerebral palsy. She requires a walker for ambulation and has arm and leg impairments and significant cognitive deficits, necessitating 24-hour assistance.

The plaintiff claimed that if oxytocin had been discontinued, she would have reached full dilation hours earlier than she did. She also claimed that a cesarean delivery or operative vaginal delivery should have been performed when the fetal monitor indicated an abnormal heart pattern. (She contended that the “normal” heart rate recorded around this time was actually the maternal heart rate.)

The parties did not dispute that the infant had experienced a hypoxic/ischemic event but disagreed on when it occurred. The plaintiff claimed that the ischemic event occurred during delivery. The defendants claimed that it occurred in utero prior to delivery. The plaintiff also disputed the MRI findings, which the plaintiff argued showed significant brain injury.

On the next page: Outcome >>

OUTCOME

A jury found the nurse-midwife 80% at fault and the hospital 20% at fault. The jury awarded $13.5 million to the child and $100,000 to the plaintiff. An additional $110,000 in past medical expenses was added to the verdict.

COMMENT

Obstetrics/midwifery accounts for a significant percentage of malpractice cases filed and monetary damages awarded. In this case, a substantial $13.5 million verdict was awarded, with 80% of the verdict against the midwife for inappropriate use of oxytocin and failure to refer for cesarean delivery.

A detailed discussion of obstetric management is beyond the scope of this article (in part because we don’t have access to much data, including fetal heart rate tracings). However, there are a few points to consider.

First, consider surgical options when appropriate.  Without doubt, operative delivery by cesarean section is overused for all the wrong reasons. Some mothers, families, and clinicians strongly desire a more natural childbirth and strive to create such an experience—forgoing traditional medications and anesthesia. Often, this is perfectly safe, reasonable, and preferable. 

However, if the perinatal course is rocky, it is wise to monitor closely and adopt a collaborative approach. When prenatal screening suggests a difficult delivery, exercise caution and have a fallback plan. Known high-risk deliveries should have a team approach from the outset, with all assets available to bedside on short notice.

While operative delivery is overused, it shouldn’t be demonized either. When genuinely needed, it can be lifesaving. Some patients do not want a cesarean delivery, and both the patient and the clinician may equate operative delivery with personal failure. However, that view may present a barrier to calling for consultation when it is genuinely needed.

For natural childbirth enthusiasts, think of the surgical delivery option as sealed in a glass case. Break that glass for all the right reasons: to preserve life or avoid significant fetal morbidity. Discuss the indications for surgical management ahead of time, so the mother is not surprised by a sudden rush to the operating room, feeling frightened and out of control.

It is recognized that patients and clinicians have firmly held beliefs, and opinions are strong on this subject. Patients have a right to self-determination and to select the birthing experience that will suit them best. Yet there is tension because jurors will expect a clinician to fully communicate known risks to patients and use all available resources to safeguard the mother and fetus at all times. In this case, the jury concluded that the midwife failed to refer for cesarean delivery after about 10 hours of labor, when the fetal heart rate pattern was nonreassuring. One of the plaintiff’s expert witnesses who criticized the defendant midwife’s care was herself a highly regarded midwife.

Continued on the next page >>

Second, use oxytocin carefully, slowing or stopping it when required. While we do not have access to the fetal heart rate monitor strips in this case, we do know that the plaintiff met her burden of proof and persuaded the jurors that the midwife inappropriately increased the drug in the setting of uterine hyperstimulation, with evidence of fetal distress. It seems surprising that the allegedly “normal” pattern recorded at 1:26 am could have been the maternal heart rate—but apparently, the jurors were convinced of this.

Third, when a facility has a medication protocol, follow it unless there is good cause not to. Medication protocols can be useful to establish operating guidelines and reduce medication errors. But they can also shackle clinicians by substituting tables and algorithms for clinical judgment. Problems arise when a protocol is sidestepped, and the clinician is raked over the coals for failing to adhere. If your facility has protocols that are important to your practice, read the documentation. Learn it, know it, live it.

If you operate outside a protocol, and your case goes to trial, the expert witness defending your care will be forced to take on both the plaintiff’s allegations and your own facility’s recommendations. The plaintiff’s closing argument will include a variation of “Mr. A did not even bother to follow his hospital’s own rules.” This argument is easy for jurors to understand, and many will reach a finding of negligence based on this fact alone. If you disagree with the protocol, or it is not reflective of your actual practice, either clinician practice or the protocol must be changed. Do not routinely circumvent protocols without good reason.

Ideally, protocols should be constructed to give clinicians flexibility based on clinical judgment and patient response. If you have a role in forming a protocol, consider advocating for less rigidity and allowing for professional judgment. If the protocol is rigid, be sure that everyone understands it and that it can be strictly followed in a real world practice environment. Put plainly, don’t install a set of rules you can’t live with—it is professionally constraining and legally risky.

IN SUM

From a legal standpoint, it is not safe to completely discard surgical delivery; when needed, it is required. Patients given oxytocin must be monitored closely, and the drug should be discontinued in the setting of uterine hyperactivity with fetal distress. Follow medication protocols or change them—but whatever you do, don’t ignore them.

During her pregnancy, a Wisconsin woman received care from a nurse-midwife. In late July 2001, misoprostol was administered to induce labor. The woman was admitted to the hospital in active labor at approximately 2 pm. She was 6 cm dilated. Dilation arrested three times, and then there was a two-hour failure to dilate.

The nurse-midwife then tried putting the mother in a water-birthing tub to stimulate contractions, without success. Oxytocin was then administered. Immediately thereafter, the patient developed uterine hyperstimulation, and the fetal heart rate strip showed late decelerations, indicative of fetal distress.

Despite these abnormalities, the nurse-midwife continued increasing oxytocin throughout labor, which continued for about 12 hours. The oxytocin dose exceeded the hospital’s recommended protocols. The patient reached a point at which she was having strong contractions every 1.5 min. Full dilation was not reached until 10:38 pm.

Around midnight, the electronic fetal monitor allegedly showed an abnormal heart pattern, with decelerations with almost every contraction. The mother was allowed to continue with labor, and the fetal monitoring equipment was removed at 1:26 am so the mother could be placed in the water-birthing tub again. Nurses took the fetal heart rate during this time and recorded it as normal.

When the child was delivered at approximately 2 am, she had a heart rate of 80 beats/min; she was apneic, cyanotic, and virtually lifeless. Apgar scores were recorded as 1 at one minute and 3 at five minutes. Arterial blood gas/pH was 7.165.

An attending physician was called and arrived within 20 min. The infant was resuscitated, intubated, and transferred to another hospital. A CT scan taken at 56 hours of life was read as normal. An MRl at nine months was also read as normal.

The child was subsequently diagnosed as having cerebral palsy. She requires a walker for ambulation and has arm and leg impairments and significant cognitive deficits, necessitating 24-hour assistance.

The plaintiff claimed that if oxytocin had been discontinued, she would have reached full dilation hours earlier than she did. She also claimed that a cesarean delivery or operative vaginal delivery should have been performed when the fetal monitor indicated an abnormal heart pattern. (She contended that the “normal” heart rate recorded around this time was actually the maternal heart rate.)

The parties did not dispute that the infant had experienced a hypoxic/ischemic event but disagreed on when it occurred. The plaintiff claimed that the ischemic event occurred during delivery. The defendants claimed that it occurred in utero prior to delivery. The plaintiff also disputed the MRI findings, which the plaintiff argued showed significant brain injury.

On the next page: Outcome >>

OUTCOME

A jury found the nurse-midwife 80% at fault and the hospital 20% at fault. The jury awarded $13.5 million to the child and $100,000 to the plaintiff. An additional $110,000 in past medical expenses was added to the verdict.

COMMENT

Obstetrics/midwifery accounts for a significant percentage of malpractice cases filed and monetary damages awarded. In this case, a substantial $13.5 million verdict was awarded, with 80% of the verdict against the midwife for inappropriate use of oxytocin and failure to refer for cesarean delivery.

A detailed discussion of obstetric management is beyond the scope of this article (in part because we don’t have access to much data, including fetal heart rate tracings). However, there are a few points to consider.

First, consider surgical options when appropriate.  Without doubt, operative delivery by cesarean section is overused for all the wrong reasons. Some mothers, families, and clinicians strongly desire a more natural childbirth and strive to create such an experience—forgoing traditional medications and anesthesia. Often, this is perfectly safe, reasonable, and preferable. 

However, if the perinatal course is rocky, it is wise to monitor closely and adopt a collaborative approach. When prenatal screening suggests a difficult delivery, exercise caution and have a fallback plan. Known high-risk deliveries should have a team approach from the outset, with all assets available to bedside on short notice.

While operative delivery is overused, it shouldn’t be demonized either. When genuinely needed, it can be lifesaving. Some patients do not want a cesarean delivery, and both the patient and the clinician may equate operative delivery with personal failure. However, that view may present a barrier to calling for consultation when it is genuinely needed.

For natural childbirth enthusiasts, think of the surgical delivery option as sealed in a glass case. Break that glass for all the right reasons: to preserve life or avoid significant fetal morbidity. Discuss the indications for surgical management ahead of time, so the mother is not surprised by a sudden rush to the operating room, feeling frightened and out of control.

It is recognized that patients and clinicians have firmly held beliefs, and opinions are strong on this subject. Patients have a right to self-determination and to select the birthing experience that will suit them best. Yet there is tension because jurors will expect a clinician to fully communicate known risks to patients and use all available resources to safeguard the mother and fetus at all times. In this case, the jury concluded that the midwife failed to refer for cesarean delivery after about 10 hours of labor, when the fetal heart rate pattern was nonreassuring. One of the plaintiff’s expert witnesses who criticized the defendant midwife’s care was herself a highly regarded midwife.

Continued on the next page >>

Second, use oxytocin carefully, slowing or stopping it when required. While we do not have access to the fetal heart rate monitor strips in this case, we do know that the plaintiff met her burden of proof and persuaded the jurors that the midwife inappropriately increased the drug in the setting of uterine hyperstimulation, with evidence of fetal distress. It seems surprising that the allegedly “normal” pattern recorded at 1:26 am could have been the maternal heart rate—but apparently, the jurors were convinced of this.

Third, when a facility has a medication protocol, follow it unless there is good cause not to. Medication protocols can be useful to establish operating guidelines and reduce medication errors. But they can also shackle clinicians by substituting tables and algorithms for clinical judgment. Problems arise when a protocol is sidestepped, and the clinician is raked over the coals for failing to adhere. If your facility has protocols that are important to your practice, read the documentation. Learn it, know it, live it.

If you operate outside a protocol, and your case goes to trial, the expert witness defending your care will be forced to take on both the plaintiff’s allegations and your own facility’s recommendations. The plaintiff’s closing argument will include a variation of “Mr. A did not even bother to follow his hospital’s own rules.” This argument is easy for jurors to understand, and many will reach a finding of negligence based on this fact alone. If you disagree with the protocol, or it is not reflective of your actual practice, either clinician practice or the protocol must be changed. Do not routinely circumvent protocols without good reason.

Ideally, protocols should be constructed to give clinicians flexibility based on clinical judgment and patient response. If you have a role in forming a protocol, consider advocating for less rigidity and allowing for professional judgment. If the protocol is rigid, be sure that everyone understands it and that it can be strictly followed in a real world practice environment. Put plainly, don’t install a set of rules you can’t live with—it is professionally constraining and legally risky.

IN SUM

From a legal standpoint, it is not safe to completely discard surgical delivery; when needed, it is required. Patients given oxytocin must be monitored closely, and the drug should be discontinued in the setting of uterine hyperactivity with fetal distress. Follow medication protocols or change them—but whatever you do, don’t ignore them.

During her pregnancy, a Wisconsin woman received care from a nurse-midwife. In late July 2001, misoprostol was administered to induce labor. The woman was admitted to the hospital in active labor at approximately 2 pm. She was 6 cm dilated. Dilation arrested three times, and then there was a two-hour failure to dilate.

The nurse-midwife then tried putting the mother in a water-birthing tub to stimulate contractions, without success. Oxytocin was then administered. Immediately thereafter, the patient developed uterine hyperstimulation, and the fetal heart rate strip showed late decelerations, indicative of fetal distress.

Despite these abnormalities, the nurse-midwife continued increasing oxytocin throughout labor, which continued for about 12 hours. The oxytocin dose exceeded the hospital’s recommended protocols. The patient reached a point at which she was having strong contractions every 1.5 min. Full dilation was not reached until 10:38 pm.

Around midnight, the electronic fetal monitor allegedly showed an abnormal heart pattern, with decelerations with almost every contraction. The mother was allowed to continue with labor, and the fetal monitoring equipment was removed at 1:26 am so the mother could be placed in the water-birthing tub again. Nurses took the fetal heart rate during this time and recorded it as normal.

When the child was delivered at approximately 2 am, she had a heart rate of 80 beats/min; she was apneic, cyanotic, and virtually lifeless. Apgar scores were recorded as 1 at one minute and 3 at five minutes. Arterial blood gas/pH was 7.165.

An attending physician was called and arrived within 20 min. The infant was resuscitated, intubated, and transferred to another hospital. A CT scan taken at 56 hours of life was read as normal. An MRl at nine months was also read as normal.

The child was subsequently diagnosed as having cerebral palsy. She requires a walker for ambulation and has arm and leg impairments and significant cognitive deficits, necessitating 24-hour assistance.

The plaintiff claimed that if oxytocin had been discontinued, she would have reached full dilation hours earlier than she did. She also claimed that a cesarean delivery or operative vaginal delivery should have been performed when the fetal monitor indicated an abnormal heart pattern. (She contended that the “normal” heart rate recorded around this time was actually the maternal heart rate.)

The parties did not dispute that the infant had experienced a hypoxic/ischemic event but disagreed on when it occurred. The plaintiff claimed that the ischemic event occurred during delivery. The defendants claimed that it occurred in utero prior to delivery. The plaintiff also disputed the MRI findings, which the plaintiff argued showed significant brain injury.

On the next page: Outcome >>

OUTCOME

A jury found the nurse-midwife 80% at fault and the hospital 20% at fault. The jury awarded $13.5 million to the child and $100,000 to the plaintiff. An additional $110,000 in past medical expenses was added to the verdict.

COMMENT

Obstetrics/midwifery accounts for a significant percentage of malpractice cases filed and monetary damages awarded. In this case, a substantial $13.5 million verdict was awarded, with 80% of the verdict against the midwife for inappropriate use of oxytocin and failure to refer for cesarean delivery.

A detailed discussion of obstetric management is beyond the scope of this article (in part because we don’t have access to much data, including fetal heart rate tracings). However, there are a few points to consider.

First, consider surgical options when appropriate.  Without doubt, operative delivery by cesarean section is overused for all the wrong reasons. Some mothers, families, and clinicians strongly desire a more natural childbirth and strive to create such an experience—forgoing traditional medications and anesthesia. Often, this is perfectly safe, reasonable, and preferable. 

However, if the perinatal course is rocky, it is wise to monitor closely and adopt a collaborative approach. When prenatal screening suggests a difficult delivery, exercise caution and have a fallback plan. Known high-risk deliveries should have a team approach from the outset, with all assets available to bedside on short notice.

While operative delivery is overused, it shouldn’t be demonized either. When genuinely needed, it can be lifesaving. Some patients do not want a cesarean delivery, and both the patient and the clinician may equate operative delivery with personal failure. However, that view may present a barrier to calling for consultation when it is genuinely needed.

For natural childbirth enthusiasts, think of the surgical delivery option as sealed in a glass case. Break that glass for all the right reasons: to preserve life or avoid significant fetal morbidity. Discuss the indications for surgical management ahead of time, so the mother is not surprised by a sudden rush to the operating room, feeling frightened and out of control.

It is recognized that patients and clinicians have firmly held beliefs, and opinions are strong on this subject. Patients have a right to self-determination and to select the birthing experience that will suit them best. Yet there is tension because jurors will expect a clinician to fully communicate known risks to patients and use all available resources to safeguard the mother and fetus at all times. In this case, the jury concluded that the midwife failed to refer for cesarean delivery after about 10 hours of labor, when the fetal heart rate pattern was nonreassuring. One of the plaintiff’s expert witnesses who criticized the defendant midwife’s care was herself a highly regarded midwife.

Continued on the next page >>

Second, use oxytocin carefully, slowing or stopping it when required. While we do not have access to the fetal heart rate monitor strips in this case, we do know that the plaintiff met her burden of proof and persuaded the jurors that the midwife inappropriately increased the drug in the setting of uterine hyperstimulation, with evidence of fetal distress. It seems surprising that the allegedly “normal” pattern recorded at 1:26 am could have been the maternal heart rate—but apparently, the jurors were convinced of this.

Third, when a facility has a medication protocol, follow it unless there is good cause not to. Medication protocols can be useful to establish operating guidelines and reduce medication errors. But they can also shackle clinicians by substituting tables and algorithms for clinical judgment. Problems arise when a protocol is sidestepped, and the clinician is raked over the coals for failing to adhere. If your facility has protocols that are important to your practice, read the documentation. Learn it, know it, live it.

If you operate outside a protocol, and your case goes to trial, the expert witness defending your care will be forced to take on both the plaintiff’s allegations and your own facility’s recommendations. The plaintiff’s closing argument will include a variation of “Mr. A did not even bother to follow his hospital’s own rules.” This argument is easy for jurors to understand, and many will reach a finding of negligence based on this fact alone. If you disagree with the protocol, or it is not reflective of your actual practice, either clinician practice or the protocol must be changed. Do not routinely circumvent protocols without good reason.

Ideally, protocols should be constructed to give clinicians flexibility based on clinical judgment and patient response. If you have a role in forming a protocol, consider advocating for less rigidity and allowing for professional judgment. If the protocol is rigid, be sure that everyone understands it and that it can be strictly followed in a real world practice environment. Put plainly, don’t install a set of rules you can’t live with—it is professionally constraining and legally risky.

IN SUM

From a legal standpoint, it is not safe to completely discard surgical delivery; when needed, it is required. Patients given oxytocin must be monitored closely, and the drug should be discontinued in the setting of uterine hyperactivity with fetal distress. Follow medication protocols or change them—but whatever you do, don’t ignore them.