Lawyers at DBMS successfully litigate a wide variety of civil cases and argue appeals in some of the most challenging jurisdictions in the country.
Musleh v. Defendant Obstetrician
On May 5, 2009, a Cook County jury returned a not guilty verdict in favor of the firm’s client, an obstetrician.
Plaintiff was admitted to a hospital to deliver her 6th child on March 15, 2001 at about noon, several days past her due date. Plaintiff had a history of three previous cesarian sections and two successful VBACs (vaginal birth after cesarian section).
Upon admission, she was examined by the defendant obstetrician and a senior family practice resident who had been primarily overseeing her prenatal care. At that time, the cervix was 5 cm dilated and 75% effaced and the fetal head was engaged. Plaintiff was having only mild, irregular contractions. Plaintiff was Group B Strep positive and the plan was to administer IV antibiotics to prevent infection to the fetus before augmenting labor. Fetal monitor tracings were reassuring.
The mother was allowed to ambulate for two hours before the membranes were ruptured and a fetal scalp electrode (FSE) and intrauterine pressure catheter (IUPC) were placed at about 6:30 p.m. At 7:30 p.m., she was examined by the defendant obstetrician and the cervix was 6-7 cm dilated, 75% effaced and the fetus remained at the 0 station.
Shortly thereafter, the defendant became ill with a severe migraine headache, and he telephoned the “moonlighter,” an obstetrician employed by the hospital to be available on the labor and delivery unit to handle emergencies, answer questions, or cover deliveries if the patient’s attending physician was unavailable for any reason.
The defendant testified that he asked the moonlighter to take over care of the patient and to attend the delivery and be available if the resident or nurse had questions or concerns. The moonlighter testified that he never took over as the managing obstetrician but admitted that he agreed to cover the patient during the defendant’s illness and to be available for the delivery and for any questions or concerns.
At 8:30 p.m., a labor and delivery nurse telephoned the defendant in the on-call room, where he was lying down. The nurse requested an order for Pitocin to augment labor and also requested an epidural. The defendant approved the Pitocin and the epidural but instructed the nurse to “run it by” the “moonlighter.” The nurse started Pitocin, and an epidural was administered but the moonlighter was not consulted. Thereafter, no one attempted to contact the defendant.
The resident and nurse continued to monitor the patient. The fetal monitor strip began to show recurrent decelerations shortly before 10:00 p.m. At 10:20 p.m., the mother was completely dilated and began to push. By 10:30 p.m., the decelerations were more frequent but variability remained good in between contractions. At 10:40 p.m., the nurse discontinued Pitocin due to non-reassuring fetal heart tracings. At 10:43 p.m., fetal bradycardia was noted and the “moonlighter” was called to attend the delivery. The “moonlighter” arrived at 10:46 p.m. and attempted to deliver the baby with forceps. The first forceps attempt did not deliver the child and Pitocin was re-started per order of the moonlighter. The child was delivered by forceps at 11:02 p.m. but was severely depressed at birth.
Plaintiff claimed that the defendant negligently failed to perform a cesarian section upon admission because plaintiff was not an appropriate VBAC candidate according to published guidelines. Plaintiff further claimed that the defendant negligently failed to examine the patient at least every hour as required by her high risk status.
Plaintiff further claimed that defendant negligently failed to perform a cesarian section after the 7:30 p.m. exam despite two episodes of fetal tachycardia and two late decelerations in a high risk patient who had failed to progress appropriately in active labor. Plaintiff argued that there was no obstetrician monitoring this high risk patient and that the defendant remained responsible for her management even after the telephone call with the moonlighter.
The defense argued that the patient was an appropriate candidate for a trial of labor. The standard of care did not require a cesarian section upon admission or at 7:30 p.m. The patient was appropriately monitored by the nurse and the resident, and she was monitored more closely due to her high risk status by the resident and by placing the IUPC and FSE. She was not in active labor until the membranes were ruptured, her labor progress was adequate, and there were no concerns regarding the mother or the fetus until after the defendant appropriately signed off to another qualified obstetrician.
It was undisputed that the fetus was normal upon the mother’s admission to the hospital and that the child, now 8 years old, has severe cerebral palsy and will need life-long care secondary to a hypoxic ischemic insult that occurred during the labor and delivery. Plaintiff’s obstetrical expert testified that the injuries were caused by repeated hypoxic episodes during labor leading to a loss of fetal reserve which manifested in the terminal fetal bradycardia at 10:43 p.m.
On cross-exam, the plaintiff’s neonatology expert agreed that the hypoxic ischemic injury occurred in the last 19 minutes prior to delivery during the episode of fetal bradycardia. The defense argued that the sole proximate cause of the injury was an occult cord prolapse – an unpredictable and unpreventable event that abruptly cut off blood flow through the umbilical cord during the last 19 minutes prior to delivery, depriving the baby’s brain of oxygen.
Plaintiff asked the jury to award $18 million. After deliberating for only one hour, the jury returned a verdict for the defendant.