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Beatriz Escobar received prenatal care from the defendant obstetrician, Dr. Daniel Rostein. She was admitted to MacNeal Hospital for induction of labor at 38 weeks gestation on the afternoon of Oct. 3, 2005.
On admission, she was given Pitocin at progressively increased dosages throughout the evening. After fetal monitor strips indicated possible fetal complications around midnight, Dr. Rostein, who was not at the hospital, ordered preparations for a Cesarean section delivery.
Once Dr. Rostein arrived at the hospital and evaluated Escobar, he found no fetal concerns and decided to proceed with the original plan for a vaginal delivery.
By 3:30 a.m. on Oct. 4, 2005, she was fully dilated, in the active phase of labor, and she began to push.
Dr. Rostein testified that he elected to utilize a vacuum extractor to assist with the delivery shortly thereafter due to Escobar’s elevated blood pressure, headaches, shortness of breath and fatigue.
Upon delivery of the baby’s head with the vacuum, Dr. Rostein recognized the presence of shoulder dystocia and immediately called for assistance.
Various obstetric maneuvers were performed to alleviate the dystocia or the baby’s shoulder hung up on the pubic bone of the mother and to prevent fetal brain damage, including the McRoberts maneuver, suprapubic pressure, rotation, and delivery of the posterior shoulder.
Bryan Escobar weighted 4,100 grams at birth (slightly over 9 pounds). Bryan sustained a near-total and permanent brachial plexus injury, consisting of tears and/or avulsions of all five brachial plexus nerves with trauma to the cervical nerve roots at C5-8 and T-1, requiring multiple surgeries, including nerve grafts and several orthopedic procedures by specialist Dr. Rahul Nath of Houston, Texas.
The family’s lawsuit denied the existence of any of the claimed symptoms/indications for using the vacuum, contended there was actually an arrest of labor, which required Dr. Rostein to order and perform a C-section, and maintained that Dr. Rostein should have suspected fetal macrosomia (defined by plaintiff’s obstetrician expert as 4,000 grams).
The Escobar family also argued that based on the severity of the outcome (in which the deeper brachial nerves were more severely traumatized than the peripheral and more commonly injured nerves), Dr. Rostein must have applied excessive force and inappropriate traction during the delivery maneuvers.
The defendants denied that the standard of care required a C-section at the time Dr. Rostein used the vacuum extractor, denied that the vacuum caused the shoulder dystocia and denied that he applied excessive force or traction to complete the baby’s delivery.
The defendants also asserted shoulder dystocia is an unpredictable and unpreventable obstetric emergency, none of the primary risk factors for shoulder dystocia were present in this case (no prior dystocia, no maternal diabetes, no predicted macrosomia as defined by the American Congress of Obstetrics & Gynecology (ACOG)) at 4,500 grams. The defendants also maintained an ultrasound performed at 37 weeks gestation predicted the baby would weigh about 3,810 grams and the extent of the outcome was partially due to a fetal anomaly and hypotonia, which resulted in the unusual distribution of the baby’s injuries. Hypotonia is sometimes referred to as “floppy baby syndrome” where the muscle tone of a newborn is low. Many newborns diagnosed later with cerebral palsy may be afflicted with hypotonia.
The jury was asked to return a verdict of $4,100,000. There was no offer to settle the case made by the defendants at any time. The jury’s verdict was “not guilty” as to all counts. For trial the Escobar family engaged experts in obstetrics, gynecology, rehabilitation and physical medicine and vocational economics. The defendants presented experts in obstetrics and pediatric neurology.
Bryan Joel Escobar, a minor, v. Dr. Daniel Rostein, Tamar, Ltd., d/b/a, Life Women’s Health Center, No. 12 L 3927 (Cook County, Ill.).
Kreisman Law Offices has been handling birth injury cases, birth trauma injury cases and medical malpractice cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Niles, Northbrook, North Riverside, South Barrington, South Chicago Heights, South Holland, Park Ridge, Palos Heights, Tinley Park, Wilmette, Chicago Ridge, Calumet City, Burr Ridge, Burbank, Kenilworth, Lemont, Melrose Park, Chicago (Irving Park, Hyde Park, Humboldt Park, Portage Park, Prairie District, Printer’s Row, Roscoe Village, Sauganash), Midlothian and Orland Park, Ill.
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