Anesthesia-Related Malpractice
Such claims often involve:
- Death or brain damage during surgery or in recovery room;
- Permanent neurological injury to a part of the body that was not involved in the surgery.
The American Society of Anesthesiologists (ASA) Closed Claims Project was established in 1984. The database contains a total of 5,480 claims for adverse outcomes that originated between 1961 and 1999. The majority of the claims in the Closed Claims Project involve relatively healthy adults undergoing non-emergency surgery. Three injuries account for one-half of all complications: death (30%), brain damage (12%), and nerve damage (18%)
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Obstetrical Malpractice
Over the past thirty years, there have been tremendous technological and medical advances in the medical profession. Unfortunately, during the same period, the drive by the health care industry to maximize profits has resulted in a reduction in the quality of care afforded to many patients. This is particularly true in the field of obstetrics. For example, health insurance companies actively engage in discouraging physicians from performing Caesarean sections, simply because they cost the insurance company more than a vaginal delivery.
In addition, hospitals and health care providers routinely violate New York State’s “Patient’s Bill of Rights” by not allowing parents to make crucial decisions that may effect their baby. During labor, patients are regularly reassured that “everything is fine” and that “the baby is OK," when, in fact, there are obvious signs of fetal compromise. Upon first learning from our attorneys and experts what those signs were and that the immediate delivery of the baby would have prevented severe life-long neurological damage, those parents ask, “Why wasn’t I told? Why wasn’t I given the choice?”
While some untoward outcomes cannot be prevented even with exemplary care under the best of circumstances, a significant number of malpractice cases are indefensible, the result of poor judgment and systems problems.
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Cerebral Palsy
During pregnancy, a fetus must receive an adequate flow of properly oxygenated blood and glucose to its brain. When blood flow to the fetal brain is disrupted, or the oxygen content of the blood is reduced, the fetus is at risk for sustaining permanent brain damage. The fetus receives all of its oxygen through the umbilical cord, its link with its mother.
If the amount of oxygen being received by the fetal brain is insufficient, this condition is known as “hypoxia.” This can occur even when the flow of the blood within the fetus is adequate, because the fetal blood is not obtaining sufficient oxygen from the mother. This often results when the umbilical cord is compressed during labor and delivery. The lack of oxygen to the fetal brain is known as “asphyxia.” As the fetal brain is subjected to a “hypoxic-ischemic” condition, brain cells die. When enough brain cells die, permanent, irreversible brain damage occurs. This condition is known as “hypoxic-ischemic-encephalopathy” (HIE) in a newborn.
Throughout labor, the mother should be monitored and tested for any evidence that the forces of labor are causing the fetal brain to be subjected to “hypoxic-ischemic” injuries. The purpose of the monitoring is to detect and diagnose any conditions which may be harmful to the fetus and to manage those conditions in such a manner that no permanent damage results. One of the most important ways that this is done is through the use of electronic fetal monitoring (EFM) to determine the actual fetal heart rate and how that rate changes and responds to the stresses of labor and delivery. Because the effects of hypoxia and ischemia can produce abnormal fetal heart rate patterns that are associated with fetal distress, EFM is a fundamental clinical tool in determining fetal well-being during labor and delivery.
In the absence of a finding of fetal well-being, fetal resuscitation must be promptly begun. The purpose of fetal resuscitation is to improve oxygenation of the fetus before irreversible brain damage occurs. Because the fetus cannot receive cardiopulmonary resuscitation (CPR) in the same manner as an adult, fetal resuscitation is accomplished by increasing the flow of oxygen to the fetus in the following manner: providing supplemental oxygen to the mother by mask; repositioning the mother to increase the efficiency of the mother’s circulatory system; and performing a vaginal examination to rule out a prolapsed cord as a cause of the fetal distress.
If these simple solutions do not restore the fetus to a state of fetal well-being, the medical care providers must inform the parents of the risks to the mother and the baby and allow them to participate in a decision whether to take steps to immediately deliver the baby or to continue with the labor.
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Cerebral palsy and brain damage
As a general rule, a review of the medical chart of an infant who suffers cerebral palsy as the result of anoxic brain damage will show:
- Profound metabolic or mixed acidemia found in the infant’s umbilical cord arterial blood, exhibited by a pH of less than 7.00; and
- APGAR scores that are between 0-3 for more than 5 minutes after birth; and
- Subsequent medical documentation of neonatal neurological sequelae, illustrated by seizures, hypotonia or coma; and
- Dysfunction exhibited in any or all of the newborn child’s cardiovascular, gastrointestinal, hematologic, pulmonary or renal systems; and
- Signs of persistent motor dysfunction (i.e. lack of neurological or muscle control) after the child is discharged from the hospital.
While these signs represent the “general rule,” cerebral palsy may be appropriately diagnosed without all of these signs being present.
Although the effects of HIE may not be evident to the parents or physicians immediately after birth or even when the child goes home, brain damage that results in a loss of cognitive function (intelligence) or motor function will usually become evident as the child ages and fails to meet milestones for children of the same age. Those children who exhibit less severe deficits are often not diagnosed until they formally enter school and are observed and tested in comparison with other children of a like age. Even those children who appear to have less severe deficits often are found to have significant learning disabilities which may have a profound effect on their lifetime earning capacity and ability to function independently in society.
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Shoulder Dystocia, Erb’s Palsy and Brachial Plexus Injuries
“Dystocia” is a word which means “abnormal labor.” Shoulder dystocia is an abnormal labor which occurs when spontaneous delivery of the fetus suddenly stops because the baby is too big to fit through the birth canal and his or her shoulder gets wedged behind the mother's pubic bone.
The risk that shoulder dystocia will occur during delivery is increased if:
- The mother has previously delivered a large infant (over 8 pounds and 13 ounces) or has experienced shoulder dystocia during prior deliveries;
- The mother has maternal diabetes;
- The gestational age of the fetus is more than 41 weeks;
- The estimated fetal weight is greater than 8 pounds and 13 ounces (this condition is known as “macrosomia”).
All patients who are at risk for “macrosomia” should be scanned with an ultrasound during the third trimester of their pregnancy to better estimate fetal weight. The estimate of fetal weight based upon the ultrasound can then be used to approximate the estimated fetal weight at delivery. This is done by adding 1.06 ounces per day from the day that the ultrasound scan was performed to the date of delivery.
Based upon the estimated fetal weight at delivery (using both clinical findings and ultrasound evaluation) and knowledge of maternal diabetes, it is generally recommended that a Caesarean delivery be performed if the mother is not diabetic and the estimated fetal weight at delivery is more than 8 pounds and 13 ounces or if the mother is diabetic and the estimated fetal weight at delivery is greater than 9 pounds and 15 ounces.
Proper management of shoulder dystocia is essential to prevent complications that can lead to brain damage, Erb’s palsy, or death.
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Fetal Complications - Brain Damage
When shoulder dystocia occurs, the infant’s head often has been delivered when the shoulder gets stuck. Because the umbilical artery pH falls at a rate of 0.04 per minute following delivery of the head, acute total asphyxia of the baby can result, with consequential permanent brain damage, if the delivery cannot be completed within a short period of time after delivery of the head.
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Fetal Complications - Brachial Plexus Injuries
The nerves that emerge from the cervical spinal cord and that enervate the arm can be stretched by excessive downward traction on the baby’s head (i.e. pulling on the baby’s head) as the baby is being delivered. This is known as an injury to the brachial plexus of the baby and can result in an arm that is permanently paralyzed. The specific nature of the injury is dependant upon which nerve roots are damaged.
Erb's palsy, for example, results from an injury to the nerve roots at C5-6 (that is, the nerve roots that are located at the 5thor 6th cervical vertebrae) of the baby’s neck. This injury leads to paralysis of the deltoid, supraspinatus, infraspinatus, biceps and brachioradialis muscles. As a result, the Moro (or startle) reflex and the biceps reflex (that is, the contraction of the biceps muscle when the tendon is struck) are reduced or abolished. Approximately one-third of these injuries become permanent.
The “phrenic nerve,” which arises from nerve roots C3, C4 and C5, innervates the diaphragm, enabling breathing. If the phrenic nerve is damaged, the resulting injury is known as hemidiaphragm paralysis. A paralyzed diaphragm results in breathing difficulty, asymmetric chest movement during breathing and frequent lung infections.
An injury at the level of C8, T1 (8thcervical vertebrae and 1st thoracic vertebrae) can result in “Klumpke's paralysis,” which is a weakness of intrinsic muscles of the hand leading to the absence of the ability to grasp objects with the effected hand.
Approximately sixty percent of these injuries become permanent.
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Fetal Complications - Skeletal Injury
The clavicle (collarbone) is the most frequently damaged bone during birth and may be fractured in about fifteen percent of cases of shoulder dystocia. In addition, the baby may suffer from a broken arm or a dislocated shoulder during the delivery process. These injuries are customarily diagnosed with a simple x-ray. In many cases when such skeletal injuries occur, a brachial plexus injury also occurs.
Injury to patients at risk for shoulder dystocia can be avoided by prophylactic cesarean surgery. Brachial plexus injury or Erb’s Palsy can also be avoided by using several different obstetrical maneuvers to disengage the anterior fetal shoulder before continuing with a vaginal delivery.
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Vaginal Birth After Caesarian Section (VBAC)
Vaginal Birth After Caesarian Section (VBAC) is the term used to describe a mother’s attempt to have a vaginal birth after having previously delivered one or more children by C-section. For most of the 20th Century, obstetrical care providers advised their patients “once a C-section always a C-section.” This motto was based upon the concern that the surgical incision into the uterus during the performance of a C-section resulted in a risk that the uterus could tear open at the site of the old incision during the stresses of childbirth if she were allowed to labor with a subsequent delivery. This was especially true when most C-sections were performed by use of a large vertical incision into the uterus. Over the past thirty years, in large part due to advances in medicine (antibiotics, fetal monitoring techniques and the increased use of a low transverse incision for most C-sections) and a growing interest in having the experience of a natural childbirth, the automatic requirement for a repeat Caesarian section was gradually reconsidered. In 1984, the American College of Obstetricians and Gynecologists began to actively encourage VBACs for most women who had had prior C-sections with a low transverse incision and who had no other medical conditions which could complicate a vaginal delivery.
Whenever a woman considers attempting to deliver by vaginal birth after a previous C-section, it is absolutely essential that she be fully informed of all of the risks to her and to her baby before she makes that decision. For a woman to give meaningful and informed consent she must be specifically told and understand that “IF HER UTERUS RUPTURES DURING HER VBAC, THERE MAY NOT BE SUFFICIENT TIME TO OPERATE AND TO PREVENT THE DEATH OR PERMANENT BRAIN INJURY TO HER BABY.”
Only when that, and all other risks and benefits are explained to, and understood by, the expectant mother can she give an informed consent to attempt a vaginal delivery following a previous C-section. Once such an informed consent is given, the mother must be carefully watched throughout the labor process for any signs, symptoms or problems that could lead to an increased risk of tearing or rupturing the uterus.
The decision to attempt a VBAC is also referred to as a “trial of labor.” At any stage of the labor, the mother has the absolute right to change her decision to proceed with a trial of labor and elect to proceed with an immediate Caesarian section. Too often, when a mother attempts to exercise that right and decides to no longer proceed with a trial of labor, her medical providers resist her decision and “encourage” her to continue with the trial. Too often, the results of such resistance are tragic.
In order for the mother to make an intelligent and informed decision, a continuous, open and honest dialogue between the mother and her medical care providers must exist. That is especially true with regard to any events or changes which occur during the labor that might increase the risk of continuing with the trial of labor. Without this ongoing reassessment, the patient cannot intelligently exercise her right to choose how her baby should be delivered.
As the cost of health care became an increasing concern over the past several years, managed care providers and insurance companies encouraged VBACs as a way to reduce the cost of the health care they provided. Hospital charges were determined to be 1.7 to 2.4 times more expensive for a C-section than for the cost of a vaginal birth. As part of their campaign to increase profitability by promoting VBACs, many health insurance companies and HMOs now authorize the same flat-rate payment to physicians for the delivery of a child, whether the delivery was accomplished by C-section or by vaginal birth. It is also common practice for hospitals to keep track of the number of C-sections performed by individual obstetricians. If the obstetrician has a higher percentage of deliveries by C-section than that of other physicians, the doctor may be required to justify his or her decision to perform C-sections on various patients.
Until recently, medical providers would advise patients that most medical studies reported that 60-80% of all trials of labor after a C-section resulted in a successful vaginal birth. By avoiding a C-section, all risks associated with surgery (infection, anesthesia risk, blood transfusions, longer hospital stays) are avoided. In addition, the mother is allowed to experience the natural birthing process. If the mother’s condition is carefully monitored the likelihood of a uterine tear or rupture could be promptly identified and the child could always be delivered by C-section. When viewed in this manner, the overall risk associated with a VBAC was not much greater than the risk associated with a C-section.
However, recently there has been some controversy as to how the statistical outcomes of VBACs are best described to an expectant mother. While there is a 60-80% “success rate,” this means that 20-40% of patients attempting a trial of labor will fail. While it can be stated that the overall absolute risk of death or injury from a trial of labor is not much different than with a C-section, there is a distinct increase in the risk to the fetus, especially in the 20-40% of the cases that result in a failure of the trial of labor. If a rupture or tear does occur to the uterus, the risks of serious injury or death to the fetus is greatly increased unless an immediate C-section can be performed. Recent studies have determined that the risk of uterine rupture is three times greater for a trial of labor when compared to a planned repeat C-section. Moreover, the overall rate of delivery-related fetal death is eleven times greater for a trial of labor when compared to a planned repeat C-section.
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Perinatal Group B Beta Strep
For the past twenty years, Group B Streptococcus (GBS) has been implicated as a leading cause of serious perinatal infection. Each year, more than 10,000 newborns in the United States are affected with a manifestation of GBS. These manifestations include infections, pneumonia and meningitis.
Approximately thirty percent (30%) of women are carriers of GBS, which generally colonizes in the bowel. The bacteria are then transferred from the bowel to the genitourinary system, where it can be transferred to a baby during vaginal delivery. Identification of women who have GBS is difficult because the degree of colonization in the vagina can vary. A vaginal culture that is taken during the first trimester of a pregnancy only has a sensitivity of approximately thirty (30%) percent. As a result, a negative first trimester culture does not necessarily rule out a significant GBS colonization at delivery.
On the other hand, cultures taken from the outer third of the vagina and from the perianal area, during the last six weeks of a pregnancy have a sensitivity of greater than 90%.
Because GBS exists in the bowel, it is very difficult to eradicate. As a result, the most effective treatment of GBS for the purpose of reducing transmittal of GBS to the newborn is the administration of an intravenous antibiotic to the mother at least four hours before delivery. Because GBS is highly sensitive to penicillin and there is very little risk of developing penicillin-resistant strains of GBS, penicillin is considered to be the “drug of choice” for the treatment of GBS and is preferred over the use of broad-spectrum antibiotics.
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