On October 19, 2011, a Cook County jury entered a defense verdict in favor of the firm's client, an obstetrician/gynecologist represented by DBMS.
The 34-year old plaintiff was receiving prenatal care from a midwife during her third pregnancy when she was diagnosed with gestational diabetes during the third trimester and referred to the defendant obstetrician for further management due to her high risk status. Gestational diabetes is glucose intolerance during pregnancy; if not properly controlled, chronically elevated maternal blood glucose can result in fetal macrosomia (large, fatty infant, which can lead to complications for mother and baby during labor and delivery and in the post-partum period).
The plaintiff's previous pregnancies had resulted in one vaginal delivery of a healthy baby and one emergency cesarian section delivery of a stillborn infant. The defendant initially recommended hospitalization to evaluate the plaintiff for possible insulin therapy due to her grossly abnormal glucose tolerance test but the plaintiff was not hospitalized at that time and subsequent blood sugars, while occasionally elevated, did not warrant insulin.
The defendant saw the plaintiff weekly beginning at 34 weeks gestation and ordered regular glucose monitoring, a diabetic diet, and weekly non-stress tests to monitor fetal well-being. The defendant discussed with the plaintiff his plan to deliver the fetus at about 38 weeks gestation because of the plaintiff's high risk status; specifically, her gestational diabetes and prior stillbirth, which, in combination, increased the risk of a stillbirth in this pregnancy.
On August 5, 2002, the plaintiff, then 37+ weeks pregnant, telephoned the defendant with complaints of decreased fetal movement and the defendant directed her to the hospital for a non-stress test to assess fetal well-being. The labor and delivery area was busy, therefore, the defendant instructed the plaintiff to go to the Family Practice Clinic at the hospital where a non-stress test was performed by a family practice resident who was performing an obstetrical rotation at the hospital.
The non-stress test was interpreted by the resident as reactive, indicating that the fetus was in no distress. A reactive non-stress test indicates that the fetus is statistically likely to survive in the uterus at least another 7 days. The defendant advised the resident by telephone that the plaintiff could go home to follow up at her scheduled prenatal visit 3 days later on August 8 or sooner if any problems. When the plaintiff arrived for the scheduled visit on August 8, no fetal heart tones were present and intrauterine fetal demise was confirmed. The stillborn baby girl was delivered later that evening. An autopsy showed no abnormalities of the infant and the death was attributed to intrauterine hypoxic ischemia.
The plaintiff claimed that the standard of care required the defendant to deliver the full-term fetus on August 5 when the plaintiff complained of decreased fetal movement despite the reassuring non-stress test because of her "uncontrolled" gestational diabetes and prior stillbirth, both of which increase the risk of another stillbirth. The plaintiff's expert testified that the predictive value of a non-stress test is not as accurate in the presence of uncontrolled gestational diabetes.
The plaintiff's expert opined that the death occurred due to a maternal "glucose excursion" that resulted in a very high glucose level in the fetus which caused the fetus to switch to anaerobic metabolism, become acidotic and die suddenly in the womb. It was undisputed that the infant most likely would have survived without any problems had she been delivered on August 5.
The defense argued that the obstetrician made a reasonable judgment call that the risks of delivery on August 5 at 37 weeks exceeded the risks of allowing the pregnancy to continue to 38 weeks, at which time an elective delivery would be more likely to result in the birth of a healthy baby. The defense further argued that there was no evidence of a "glucose excursion" between August 5 and August 8; further, the plaintiff's gestational diabetes was reasonably controlled and did not adversely affect the fetus since there was no evidence of macrosomia or organ damage which most likely would have been seen on autopsy had the mother's gestational diabetes been chronically out of control.
The defense contended that the baby girl died from an umbilical cord accident some time between August 5 and August 8, an unpredictable, unpreventable event that is the presumed cause of approximately 50% of all stillbirths in the United States.
After deliberating for 1 hour and 15 minutes, the jury returned a verdict for the defendant.