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 the 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 the plaintiff’s counsel. Defendant’s 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 plaintiff’s counsel.
Instead of taking responsibility for his failure to call an emergency C-section, the defendant attempted to blame a first-time mother who had no medical training, according to the plaintiff’s counsel. Supposedly abiding by Jane Doe’s mother’s “emphatic” wishes to deliver her baby vaginally, the 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 the defendants started altering the medical records, according to the plaintiff’s counsel. Defense counsel fought hard to deny the plaintiff’s discovery of the audit trail, 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 the defense counsel fought hard to conceal what his client altered, as evident in this audit trial, according to the plaintiff’s counsel.
Plaintiff’s counsel is casting absolutely no aspersion on defense counsel, who understandably did not want the plaintiff to discover this material and alteration/spoliation.
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.