$10 Million Mediation Settlement in Suit Alleging Failure to Timely Perform C-Section

Medical Malpractice - Fetal Distress - Birth Injury

WRSH Partner Philip Russotti obtained a $10 Million mediation settlement for failure to timely perform a Cesarean Section. The case was venued in Orange County, NY.

Infant plaintiff sustained permanent and severe multiple injuries, including spastic quadriparesis, lack of speech, impaired vision, inability to eat, inability to talk, inability to communicate except by gesture and the need for total support for her care with a gastrotomy tube and tracheostomy.

The infant plaintiff's mother presented on May 19, 2001 at 38 weeks, to defendant Hospital believing she was in labor. She was examined by Defendant Doctor One, who put her on a fetal monitor for 20 minutes. The monitor revealed decreased beat to beat variability, however she was discharged without further testing. Plaintiff returned three days later on May 2, 2001, again believing that she was in labor. She was put on a fetal monitor which again demonstrated decreased beat to beat variability. She was discharged after 2 hours. She returned that evening at 9:30 p.m. with ruptured membranes and meconium stained amniotic fluid. She was admitted and put on an external fetal monitor. The tracing was non-reassuring because of decreased beat to beat variability. Defendant Doctor One was not present and did not examine her, although he was called and made aware of her condition by the nurses.

The tracing continued to be non-reassuring throughout the night of May 22, 2001, continuing until May 23, 2001, despite the fact that resuscitation techniques such as changing position and administering oxygen and fluids did not improve the tracing. Throughout the night, the nurses spoke to Defendant Doctor One at 2:30 a.m. and 6:00 a.m. and did not request that he come to the hospital to examine the patient, did not advise their supervisors of his failure to come to the hospital to examine the patient, nor the patient's continuing non-reassuring condition.

Defendant Doctor One did not examine the patient until 7:30 a.m. the next morning. At 8:00 a.m. Defendant Doctor Two, Defendant Doctor One's partner, arrived to take over. He examined the strips throughout the night, did a pelvic examination and immediately ordered an emergency C-section. The baby was delivered with Apgars of 1, 1, 4, with the only score for a heart rate of less than 60 beats per minute. Resuscitation was attempted by pediatricians Third and Fourth Defendant Doctors who did not intubate the baby for ten minutes, did not insert an umbilical line, and were not able to increase the Apgars to 4 until ten minutes.

The claim against Defendant Doctor One was for his failure to deliver the infant on May 19, 2001 or provide for further testing in the presence of a non-reassuring fetal heart tracing; in prematurely discharging plaintiff on May 22, 2001 without further testing, such as scalp Ph or acoustic stimulation, or failing to deliver the infant; and in not examining the patient on May 22, 2001 throughout the night while the patient was in the hospital, and relying solely on the nurse's communications regarding the patient's condition.

The case against the Hospital dealt with the labor nurse's failure to demand that Defendant Doctor One come to the hospital; their failure to properly interpret the fetal heart strips; and failure to go up the chain of command in the hospital to the nursing supervisor and medical director of the hospital to complain that Defendant Doctor One had not come into the hospital to examine his patient.

The case against the pediatricians, Defendant Doctors Three and Four, was their failure to timely and properly resuscitate the infant; giving inappropriate doses of epinephrine; and delaying ten minutes to secure an airway and provide an umbilical catheter which would have been the proper vehicle to administer epinephrine and sodium bicarbonate.

A mediation was held on July 27, 2009 at which time the case settled for $10,000,000. Mr. Russotti retained expert witnesses in Neonatology, Neuroradiology, Pediatric Neurology, Nursing, a Life Care Planner, as well as an Economist. Mr. Russotti's thorough preparation of this case led to the successful recovery.

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