Articles Posted in Birth Injury

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Vonshelle Brothers received her prenatal care, including a Pap smear, at the Brevard County Health Department. A cytopathologist allegedly interpreted the Pap smear as having cellular changes consistent with the herpes simplex virus. However, a health department nurse reported that the test was normal. Her obstetrician did not look at the actual Pap smear and Brothers was not notified of the cytopathologist’s findings.

About seven months later, Brothers delivered her baby vaginally. Two weeks later the child was diagnosed with herpetic meningoencephalitis, which led to profound brain damage. This child is now 6 years old. She has developmental delays, speech and vision problems and difficulty walking.

Brothers filed a lawsuit against the health department alleging that its employees chose not to diagnose the herpes simplex virus and prevent Brothers from transmitting the virus to her unborn child by performing a Cesarean section. There were other allegations of preventative medical attention that could have prevented and avoided the predictable outcome. Before trial, the parties settled the case for $3.2 million.
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In this medical malpractice case, an appeal was taken by the plaintiff after a jury verdict was entered in favor of the defendant, Mercy Hospitals East, claiming that the trial court abused its discretion. The claim was made that the court chose not to strike for cause a venireperson after she expressed during voir dire a disqualifying bias in favor of Mercy. She stated that she would “start off slightly in favor” of Mercy in this case because her sister was a registered nurse at another Mercy facility.

Since this venireperson served on the jury in this case, the appellate court reversed and remanded for a new trial because the appeals panel found that the venireperson’s stated bias disqualified her from jury service on this case and she was not subsequently rehabilitated.

The original lawsuit stemmed from allegations that the hospital providers were negligent in connection with the Cesarean-section delivery of Thaddeus Thomas, resulting in brain damage to the newborn. The case proceeded to trial on March 16, 2015 and a jury returned a verdict for Mercy Hospital on March 26, 2015. The only issue on appeal was asserted that the trial court committed reversible error when it denied the plaintiffs’ motion to strike the venireperson for cause, who was later seated as a juror and took part in the verdict in this case.
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In August 2015, the plaintiffs, Kristopher Crim and Teri Crim, acting on behalf of their biological son, Collin Crim, filed a medical malpractice lawsuit against the defendant physician, Dr. Gina Dietrich, claiming that she chose not to comply with the standard of care applicable to an obstetrician. The Crims claimed that Dr. Dietrich’s negligent failure to obtain Teri’s informed consent prior to Collin’s natural birth resulted in a fracture to Collin’s right clavicle and nerve damage that extended down his right side to his shoulder, wrist, hand and fingers.

Following the presentation of the Crims’ case to the jury, Dr. Dietrich moved for a partially directed verdict on the issue of informed consent, which was granted by the trial judge. After additional evidence and argument, the jury returned a verdict in Dr. Dietrich’s favor and against the Crims on their remaining claim.

The Crims had sought expenses under Section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (2014)). The court later imposed costs on the Crims as permitted by Section 5-109 of the Code of Civil Procedure, 735 ILCS 5/5-109. The Crims appealed, arguing that the trial judge erred by (1) granting Dr. Dietrich a directed verdict on the issue of informed consent; and (2) barring certain medical testimony. As the appeals panel pointed out, because they agreed with the Crims’ first argument on the directed verdict on informed consent, the trial court’s decisions were reversed.
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A Wisconsin appellate court has ruled that a trial judge improperly excluded a defendant physician’s expert testimony. The expert wanted to testify about the maternal forces of labor being a cause of the plaintiff child’s brachial plexus injury.

In this case, Leah Bayer and her husband filed a lawsuit against her obstetrician, Dr. Brian Dobbins, claiming that he mishandled their infant’s shoulder dystocia, causing the baby girl to suffer a permanent brachial plexus injury.

The defendant doctor contended that the child’s injury came from maternal forces of labor. This is probably the most common and over-used defense in a birth trauma injury cases. The Bayer family then filed a motion in limine and requested that the judge exclude the defendant’s expert testimony related to the maternal forces of labor theory. The trial judge granted the motion.

However, the appellate court reversed. Whether expert testimony is admissible under the Daubert standard depends on whether an expert is qualified and uses a methodology that is scientifically reliable and whether the testimony will assist the trier of fact to determine a fact in issue.
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Irena Dujmovic-Terman was seven weeks pregnant when she began prenatal care with the defendant obstetrician and gynecologist, Dr. Elliot Levine on Feb. 1, 2008. She was 37 years old at the time. Because of her advanced maternal age, Dr. Levine recommended genetic testing for fetal anomalies. The patient agreed at her 11-week visit.

The blood draw for the quad screen test was planned for the 15-week visit on March 27, 2008, but Dr. Levine’s staff chose not to perform the blood draw at that time, giving no explanation.
Dr. Levine later took the first quad screen blood draw on April 24, 2008. The test results came back from the lab on April 29 showing a high risk of fetal anomaly (trisomy 21 Down syndrome) and thus Dr. Levine signed off on them on May 2. Dujmovic-Terman was not informed of the results during the next three weeks.

Dr. Levine finally told her about the results at her next visit on May 22 when she was 23 weeks pregnant. Dr. Levine ordered an amniocentesis at Weiss Memorial Hospital, which was scheduled for June 3, the next available appointment. However, Dr. Levine chose not to tell the patient that a legal abortion would not be available in Illinois once she passed gestation of 23 weeks and 6 days. He also failed to order the amniocentesis on an expedited basis.
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On June 6, 2006, the newborn baby, America Camacho, was delivered by the defendant obstetrician, Dr. Sonya Thomas, at Norwegian American Hospital in Chicago. Baby America weighed 10.5 pounds at birth. A medical negligence lawsuit was filed against Dr. Thomas and Norwegian American Hospital. The family of America maintained that Dr. Thomas chose not to review a June 1, 2006 prenatal ultrasound report, negligently chose not to suspect fetal macrosomia based on the ratio of the fetal head circumference to abdominal circumference, and relied solely upon the estimated fetal weight measurement of just under 8 pounds before the vaginal delivery.

Fetal macrosomia is a medical term used to describe a newborn whose size at birth is significantly larger than average. A baby diagnosed with fetal macrosomia will have a birth weight of more than 8 pounds, 13 ounces (4000 grams).

Fetal macrosomia poses health risks for the baby and the mother. One of the most common dangers to the unborn fetus is injury to the baby’s shoulder or injury to the important nerves in the baby’s shoulder area that control movement and arm function.
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Andrew and Marni Hotchkiss, a couple in their 30s, were struggling with infertility. They consulted an obstetrician and infertility physician, Dr. Siu Ng-Wagner. The couple and the doctor agreed to use a gestational carrier. As the Hotchkiss family selected potential surrogates online, the couple sent these candidates to Dr. Ng-Wagner for medical screening. Dr. Ng-Wagner subsequently interviewed Christina Jensen and told the Hotchkiss family that everything was “all clear.”

Jensen delivered the Hotchkiss’s baby at 25 weeks gestation after developing pre-eclampsia during the pregnancy. The newborn child developed sepsis and died just 3 weeks after birth.
The Hotchkisses filed a lawsuit against Dr. Ng-Wagner and her medical practice claiming that she chose not to review Jensen’s medical records before recommending her as a suitable surrogate.

This would have revealed Jensen’s history of pre-eclampsia in her pregnancy the year before the Hotchkiss’s baby’s birth. The plaintiffs also argued that Dr. Ng-Wagner had a duty to inform the Hotchkisses that she had not reviewed Jensen’s records before clearing her to be named a surrogate.
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Christina Yarbrough and David Goodpaster brought a medical negligence lawsuit against Northwestern Memorial Hospital (NMH) and Northwestern Medical Faculty Foundation (NMFF) after the premature birth of their daughter, Hayley Joe Goodpaster. This case came to the Illinois Appellate Court by the request of NMH regarding the doctrine of apparent authority in the medical negligence context. The trial court certified a question of law pursuant to Illinois Supreme Court Rule 308.

The question was this: “Can a hospital be held vicariously liable under the doctrine of apparent agency set forth in Gilbert v. Sycamore Mun. Hosp., 156 Ill.2d 511 (Ill. 1993), and its progeny for the acts of the employees of an unrelated, independent clinic that is not a party to the present litigation?”

The case involved Christina Yarbrough, who believed she was pregnant. She went to Erie Family Health Center Inc. (Erie) a federally funded, not-for-profit clinic on Nov. 14, 2005 after searching the Internet for a nearby clinic offering free pregnancy testing. After receiving a positive pregnancy test, healthcare workers at Erie inquired where Yarbrough would receive prenatal care. Yarbrough was advised that if she obtained prenatal care from Erie, she would deliver at NMH and would receive testing and additional care at NMH, including ultrasounds. She was given a pamphlet and a flyer with information regarding scheduling tours and classes at NMH. The plaintiffs in this case alleged that based on her knowledge of NMH’s reputation and the information provided by Erie, Yarbrough believed that if she received prenatal care from Erie, she would be receiving treatment from NMH health care workers.
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In a significant birth trauma injury case, the mother was given Pitocin while in delivery at the hospital. Labor was more than 14 hours. It was managed by two resident physicians and an attending physician. There were signs of uterine hyperstimulation, which was alleged to have occurred hours before the delivery and followed by hours of obvious fetal distress.

According to the report on this case, a nurse told one of the residents that the fetal monitoring signs indicated fetal distress.  However, even with this information, the physician allegedly concluded there was no fetal distress and instead increased the dose of Pitocin. The nurse reported the fetal monitoring signs of distress to her supervisor who then contacted a more senior resident and the attending physician who then stopped the administration of Pitocin.

The baby was later delivered with the assistance of forceps. At the baby’s delivery, the APGAR scores of 3 at 1 minute and 5 at 5 minutes were charted. The baby, who’s now nearing 7 years old, had suffered a brain injury from inadequate oxygen.

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Llulin Cruz, 31, was admitted to St. Barnabas Hospital to deliver her first child. The attending obstetrician was Dr. Michael Ihemaguba, who performed a midline episiotomy after he delivered the baby’s head. Dr. Ihemaguba then told Cruz to continue pushing. This resulted in a fourth-degree laceration, which Dr. Ihemaguba then repaired. The next day, Cruz complained of vaginal gas and Dr. Ihemaguba told her this would improve over time.

About 5 months later, Cruz became pregnant with her second child. She consulted midwife Gloria Murray for prenatal care and told her that she had fecal-smelling vaginal discharge. Murray called Dr. Ihemaguba and told him about Cruz’s symptoms. Dr. Ihemaguba instructed Murray to do nothing, but he told her to send Cruz to him after the baby was born.

After the vaginal delivery, which the midwife performed, Cruz was diagnosed as having a rectal-vaginal fistula. Cruz required 13 surgeries during the next 3 years, including an ileostomy and a “pulled down” procedure involving removal of her rectum. Cruz has lost control of her bowel function and is no longer able to engage in sexual relations. As she ages, her medical condition is expected to worsen, necessitating a permanent colostomy.

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