Cleveland’s MetroHealth Medical Center and a staff physician were recently found liable for a $14.5 million medical malpractice verdict in what is commonly termed a “bad baby” case.
The case as described in the article involved 36 year old Stephanie Stewart who was pregnant with her second child. She went to MetroHealth several times for premature labor when the child was 22-23 weeks gestational age (a full term infant is 40 weeks) and was admitted twice, with labor being stopped using medication and bedrest. There were apparently discussions about her requiring a C-section since her first child was delivered by C-section.
Six days after being discharged from her second hospital admission, she returned for evaluation after her water broke. At that time, she reportedly asked physicians to give her an immediate C-section to deliver her 24 week old baby, but they do not do so. The attending physician arrived later that afternoon and she again requested a C-section, but the attending doctor noted that the baby appeared “healthy” on the monitor. Three and a half hours later, the baby showed signs of distress. Doctors performed an emergency C-section, but the child was unfortunately born with a brain hemorrhage, cerebral palsy, cognitive delays, visual impairments, and “other issues that will require lifelong care.”
The doctor and hospital were sued and after a trial, according to the plaintiff’s attorney, the “jury determined there was medical negligence and Stewart was not informed that there was a significant risk of a brain hemorrhage if a baby goes into fetal distress … [in addition, the mother] was not given any options, and her request for a Caesarian was not granted.”
What would have prevented all of the patient’s medical injuries and what the hospital and physicians should have done, according to the attorney, is to have kept the mother in the hospital after her third admission for three months until she delivered a healthy baby, or alternatively, the doctors should have performed a Caesarian section on the mother when she requested it.
Comments to the article alleged that this “malpractice” isn’t an isolated incident.
However, when you look at the allegations in the case within context, you have to wonder.
20% of premature infants suffer from bleeding in the brain.
In infants born between 22 and 25 weeks of gestation, 73% either die or have some type of neurodevelopmental impairment and 61% die or have “profound impairment.” The risks of adverse outcomes are decreased by increasing gestational age (i.e. allowing the baby to remain in the uterus longer), in addition to administering steroids.
A 2000 study showed that “survival at 23 weeks’ gestation ranges from 2 to 35%, at 24 weeks’ gestation 17 to 62% and at 25 weeks’ gestation 35 to 72%.” Those survival rates have probably improved over the past 14 years, but the data show that even an extra week of keeping a developing fetus inside the uterus has a significant effect on the child’s survival.
Now a woman who is 24 weeks pregnant – at which time, if delivered, her fetus has a 38% to 83% chance of dying – comes to the hospital and demands to have a C-section.
If the doctors perform the C-section without a proper reason for doing so, more likely than not, the child is going to die. Then the mother will allege that the doctors should never have performed the C-section and will sue the doctors and hospital for performing the C-section. In addition, the state will go after them for causing patient harm without following medical protocols.
If the doctors don’t perform the C-section, the patient has a 60% chance of having some type of neurodevelopmental impairment and a 20% chance of bleeding in the brain. If the child is born with any of those problems that are likely to occur in any premature infant, it creates the appealing plaintiff lawyer argument that if the doctors just listened to the mother’s requests for a C-section none of this would have ever happened. After all, how dumb can the doctors be if a mother knows more about premature pregnancy than they do?
The rule that the plaintiff attorney apparently thinks all physicians should follow is that doctors should always perform all testing or treatment that patients request, even if that testing or treatment is potentially harmful or medically unfounded.
Unless the mother was skilled in evaluating premature labor, the judge should never have let the jury hear that the mother demanded a Caesarian section. Had a C-section been performed and a bad outcome occurred, the fact that the mother demanded the procedure be performed wouldn’t be admissible.
If the defense attorney did not move to have that highly inflammatory testimony excluded, the defense attorney likely committed legal malpractice.
In either case, this scenario reinforces the notion that doctors should fear the bad outcome. Regardless of what actions we take, if a bad outcome occurs, someone will find something that should have been done differently.
Until we address no-win situations involving multimillion dollar liability such as this, defensive medicine, overtesting, and overtreatment will never go away.