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Birth Delivery Often Demands Urgent Care

Victor Lewin - Monday, August 26, 2013

One particular area of obstetrical care that is especially significant with respect to medical malpractice litigation is the issue of Urgency.

A sense of Urgency so often surrounds the practice of obstetrics when problems arise in the birth of a child. In labour, every fetus is hooked up to a fetal heart rate monitor. This device is fundamentally important in that it gives nurses and doctors a good indication about the health and/or distress of the baby. Once there is evidence of abnormal fetal distress from oxygen deprivation, it is crucial that doctors and nurses recognize it and act quickly. It is the standard of care that they treat it as a medical emergency. Given that the degree of risk is one of the essential factors in determining the standard of care, doctors in charge of delivering babies must respond in a timely and often urgent manner when problems arise. As one case highlights: when obstetrical problems occur, "wasted minutes can have tragic consequences".

In many obstetrical cases, doctors have been found liable because their response to critical problems was found to be unreasonably slow. One example of this is a where a family doctor in change of delivery was found to have been negligent in his failure to recognize potential fetal compromise and appropriately speed up the delivery.

The child in McGlone v. Kelly suffered a brain injury at birth that lead her to develop cerebral palsy. She was significantly disabled. Her mother had an uneventful pregnancy. Everything was healthy until near the end of her labour. At that point, the fetal monitoring strips became abnormal. The judge discussed what happened in the medical malpractice decision:

Dr. Farmer said the strip showed an "ominous" pattern, and Dr. Braithwaite said that even if one could not interpret the strip, it was so obviously abnormal that Dr. Kelly should have become alive to the need for action.

There is expert evidence that the strip was difficult to interpret, and could have resulted in an innocent interpretation. Nevertheless, it was, in my opinion, negligent of Dr. Kelly not to have noticed that there was a fetal heart pattern inconsistent with his assumption as to what was happening. Dr. Kelly was not interpreting the strip and fetal heart in the manner that could lead to an innocent interpretation. He was not paying sufficient attention to it.

The brain damage that caused Taylor's injuries occurred within 30 minutes, and probably within 15 minutes, of her birth. All of the troubling features of the strip which Dr. Kelly referred to as "nuances" occurred well before the 15-minute window before birth; and at least three were before the head started to crown at 23:14 hours.

I am of the opinion that Dr. Kelly was negligent in not paying adequate attention to the data being produced by the fetal heart monitoring equipment and in not noticing that rapid accelerations in the rate of the fetal heart were not associated with uterine contractions, and that Dr. Kelly's negligence was a material cause of Taylor's birth not being expedited and her being injured at birth by asphyxiation.

This case represents one of many findings of negligence against doctors who did not use the necessary level of urgency in the face of fetal distress. Tragic consequences were the result. This young girl's cerebral palsy was ultimately preventable.

Children who suffer cerebral palsy as a result of medical malpractice have significant cost of care needs that they are entitled to. The medical malpractice lawyers at Wagners have a proven track record of success at obtaining compensation of families and victims of medical malpractice.

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