Jane Doe was born via emergency C-section after multiple intrapartum complications:
fetal heart rate abnormalities, arrest of descent, attempted use of forceps,
and failed vacuum extraction, including two pop-offs. Jane Doe was born
with not only molding, caput, and severe scalp bruising, but with such
extensive internal edema and swelling that it caused gross malposition
of the pliable bones of the skull.
There was also a suspected fracture. A 3-dimensional graphic representation
created by a plaintiff's pediatric neuroradiology expert showed extreme
deformation of the baby's head following the combined trauma of forceps,
vacuum, and hours of arrest of descent on a skill that was simply too
big to fit through the maternal pelvis. The obvious trauma was conflated
with hypoxic ischemia as evidenced by the cord blood pH of 7.08 and base
excess of -13.4--indisputable evidence of metabolic acidosis.
Both the hypoxic ischemia and the trauma could have, and should have, been
avoided by an earlier cesarean section, according to plaintiff's counsel.
Defendant doctor admitted that he was concerned about the baby’s
heart based on the progressively deteriorating electronic fetal heart
monitor (EFHM) and baby Jane Doe’s lack of descent through the birth
canal over an hour and 18 minutes before delivery.
Plaintiff’s experts testified that: 1) an arrest of descent was evident
hours before 12:55; 2) the EFHM was non-reassuring hours before 12:55;
and 3) a cesarean section delivery should have been performed no later
than 12:30. But Jane Doe’s arrest of descent combined with the loss
of oxygen resulting from the repeated variable decelerations were still
not enough for defendants to call an emergency C-section, according to
Instead of taking responsibility for his failure to call an emergency C-section,
defendant attempted to blame a first-time mother who had no medical training,
according to plaintiff’s counsel. Supposedly abiding by Jane Doe’s
mother’s “emphatic” wishes to deliver her baby vaginally,
defendant opted to use both forceps and a vacuum, hoping this would force
the baby out.
The baby was still seizing in the NICU when defendants started altering
the medical records, according to plaintiff’s counsel. Defense counsel
fought hard to deny plaintiff discovery of the audit trial, going so far
as to file a motion for reconsideration of the judge’s order. Once
those records were obtained, it was readily apparent why defense counsel
fought hard to conceal what his client altered, as evident in this audit
trial, according to plaintiff’s counsel.
Plaintiff’s counsel is casting absolutely no aspersion on defense
counsel, who understandably did not want plaintiff to discover this material
On Aug. 2, 2011, at 22:40, the following sentence was deleted under a specific
doctor’s name from her progress note in the neonatal records: “Initial
ABG showed ph 7.08/pco267/HCO2 19/base deficit of 13,” according
to plaintiffs counsel. This sentence had been in the record from 2:40
until 22:38. Whoever deleted this evidence forgot to delete the one other
place in which the blood gas is reported. There should always be two cord
blood gasses: a venous and an arterial. The venous gas is always higher
than the arterial gas. In this case, there is just a notation that purports
to be arterial, but without two blood gases, it cannot be known. Nevertheless,
even the values that are in the record (pH 7.08) indicate metabolic acidosis,
and therefore, point to a hypoxic-ischemic baby at birth.
The defense in this case agreed that the extensive and traumatic labor
and delivery course, more likely than not, caused Jane Doe’s damages,
which include cerebral palsy, developmental delay, seizures, left-sided
weakness, esotropia of the left eye, and abnormal 48-hour EEG as recently
as February 2017, according to plaintiff’s counsel.
Geoffrey Fieger, counsel for plaintiff, provided case information.