Giving birth can be one of the happiest occasions in a woman’s life, but when something goes wrong in the delivery room leaving the baby, mother or both with a severe injury or worse, joy quickly turns to tragedy and medical malpractice claims are often not far behind.
Each year thousands of babies are born with birth injuries ranging from scalp and shoulder trauma to a severe type of brain damage called Hypoxic Ischemic Encephalopathy (HIE) due to a lack of oxygen and/or reduced blood flow to the brain before, during or right after birth.
Other names for HIE include neonatal encephalopathy, perinatal hypoxia or birth asphyxia.
The Cerebral Palsy Guide estimates HIE occurs in 1% to 2% of live births, noting it is one of the leading causes of neonatal death.
Paul Greve Jr., senior director of healthcare risk solutions at Markel Specialty, said while obstetrics (OB) cases are not the most frequent they can be quite costly.
“Obstetrics claims are the most volatile because they can involve severe injuries to the infant, which often cannot be reversed,” Greve said.
The issue was the subject of session at the 2024 Crittenden Medical Liability conference in South Carolina last April entitled, “When the Stork has a Crash Landing: Lessons from the Courtroom on Defending OB Claims.”
Several panelists spoke at the event including Greve and Brant Poling, founder of the national trial firm Poling Law in Columbus, Ohio.
Poling said some of the infants with HIE are diagnosed with cerebral palsy.
Newborns can also experience injuries in utero for many reasons and these can cause neurological deficits, Greve said.
“The recurring scenario is that the doctor and/or team of nurses allegedly did not adequately monitor the fetal heart rate and/or respond quickly enough to the variations in the fetal heart rate during the delivery resulting in HIE, which caused cerebral palsy,” Greve said.
And so, these children can sometimes require around-the-clock care, which is very expensive, he added.
“Given that these children are living longer, the costs can run very high,” Greve said.
According to Candello’s national database of medical professional liability (MPL) claims, 1,845 cases cite obstetrics-related treatment as the top allegation in lawsuits filed between 2017 and 2021, adding up to $1.26 billion in total incurred losses.
The losses include reserves plus expenses on open cases and indemnity and expenses paid on closed cases.
A data division of CRICO, the captive MPL insurer of the Harvard-affiliated medical institutions, Candello’s database represents one-third of national MPL claims and encompasses both open and closed, as well as paid and unpaid claims.
Out of the 1,845 OB-related medical malpractice cases contained in the Candello database, 23% involved allegations of delays in treatment of fetal distress, representing 38% of the total incurred losses.
Nineteen percent of the cases resulted in a final diagnosis of intrauterine hypoxia and birth asphyxia, accounting for 35% of the total losses.
Other top allegations identified were improper management of the pregnancy (15%), improper performance of vaginal delivery (15%) and obstetric-related treatment (10%). Total incurred losses were 13%, 9% and 7% respectively.
In September 2021, Poling and attorney Sabrina Sellers won a jury trial verdict in Erie County, Ohio, in a $10 million uterine rupture/placental abruption case that resulted in HIE and the death of the infant.
The two represented Northern Ohio Medical Specialists and its employee Dr. Mona Nataprawira in the case, which they chose to take to trial.
Why risk a trial as opposed to trying to work out a settlement?
The answer, Poling said, was simple. “We felt we had a strong case.”
In this instance, there was a mitigating factor. The mother, Jeniece Meade, had previously undergone a cesarean section with her first child, increasing the risk that her uterus would rupture during a normal vaginal birth, Poling said.
“One of the arguments that was raised was that the mother was not told of the risk beforehand, but we were able to demonstrate that she had been informed,” Poling said.
Perhaps even more importantly, Poling said they were able to show that their client (Dr. Mona Nataprawira) acted quickly and did everything she could to deliver the baby at the first signs of fetal distress.
“One of the questions we ask before we consider going to trial is do we have a good story to tell and a strong client to tell it? In this instance the answer was yes on all fronts,” he said.
While there was a mitigating factor in this case, the decision to fight or settle is far from a simple one for defense or plaintiff attorneys.
See Part 2 of this story: Defending OB claims: Lessons from the courtroom
