Starr Gern Law Firm Settles Traumatic Birth Injury Medical Malpractice Case for Defendant's $1 Million Insurance Liability Limits.

September 2008

At 4:00 a.m. on May 24, 2001, the mother was admitted to Labor and Delivery. Initial fetal heart rate measurements were noted to be in the 100-110 beat per minute range. The defendant physician arrived at 4:30 a.m. Shortly afterward, at 4:35 a.m., the fetal monitoring strips became non-reassuring. Oxygen was applied to the mother, and position change was employed. An internal fetal scalp electrode was not applied, and a good portion of the fetal monitoring strips thereafter were uninterpretable.

At 5:05 a.m., due to continuing concerns about the fetal heart rate, the defendant applied a vacuum extractor while the baby was at +2 station, with the vertex in the occiput position. At 5:22 a.m., the baby was delivered with a midline episiotomy under local anesthesia, with Apgar scores of 2/2/5 at 1/3/10 minutes. When the plaintiff was born, resuscitation was necessary, and she was intubated.

The plaintiff was diagnosed with metabolic acidosis and persistent pulmonary hypertension while admitted at the hospital. Additionally, she demonstrated irritability though fisting, clonus and bicycling movements.

Following discharge from the hospital, an MRI of the brain demonstrated findings consistent with the chronic phase of profound asphyxia. The plaintiff suffered from aspiration pneumonia and gastroesophageal reflux and failure to thrive and required the insertion of a gastronomy tube. She then went on to develop a spastic quadriplegia and developmental delay.

The plaintiffs contended that the defendant's failure to employ an internal fetal scalp electrode was a breach of accepted standards of care, and prevented the defendant from knowing the true status of the baby's condition, and led to an inappropriate decision to move forward with operative vaginal delivery rather than taking further resuscitative measures during labor and potential cesarean section.

The defense contended that the fetal tracings were intermittently reassuring, that the mother was combative during labor and that the extremely rapid pace of labor made the defendant's anticipation of imminent vaginal delivery logical, and therefore his decision to forego a cesarean section was within accepted standards of medical care.

The case settled after parties and witnesses were deposed and expert reports were exchanged.

Starr, Gern, Davison & Rubin, P.C.
105 Eisenhower Parkway, Suite 401
Roseland, NJ 07068-1640

Phone:973-403-9200
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