Our claims team secured a defense verdict in Bronx County Supreme Court on behalf of 2 obstetricians in a case involving the delivery of an infant at 33 weeks gestation with subsequent developmental delays. The 33-year old mother of the child had immigrated to the US when she was 4½ months pregnant. She had one prior caesarian section in her home country for suspected preeclampsia; however, those records were unavailable. On the morning of September 20th, the patient presented to the hospital at 33 weeks gestation. She had high blood pressure and was admitted to rule-out preeclampsia. The patient was placed for admission and was monitored and medically managed in the ED.

The following day, the obstetrician consulted with a perinatologist who recommended medications to manage the preeclampsia. At 4 p.m. on September 21, the fetal biophysical profile was 8. At 6 p.m. the obstetrician was called by the nurse to evaluate the fetal heart tracing due to concerns of fetal tachycardia with decreased variability. Close monitoring and medical management were continued throughout the night, including the administration of steroids to promote lung maturity. On the morning of September 22nd, the obstetrician coming on duty, opted to perform a caesarian section secondary to a non-reassuring fetal tracing and a lowered biophysical profile. The caesarian section proceeded without complication. During his hospital stay, the infant was feeding and passing stool normally and was never noted to be in distress. The infant was discharged to home 17 days after delivery. At 3 ½ years of age, the child was found to have significant developmental delays with severe deficits in neurocognition and speech. The mother brought suit against the obstetricians involved in her son’s care alleging that a negligent delay in performing a caesarian section caused hypoxic injury resulting in the child’s developmental delays.

To counteract the allegation that the obstetricians involved were negligent in not delivering the infant earlier based on the fetal heart rate tracings and biophysical profile, our defense team obtained expert testimony from an obstetrician with recognized expertise in this area. At trial, this expert walked the jury through the fetal tracings and biophysical profile and was able to explain why they were not reflective of fetal distress and hypoxia. When the expert was asked to comment on the testimony made by the plaintiff’s expert who opined that the data was indicative of hypoxia and should have prompted sooner delivery, the expert offered a compelling refutation of the plaintiff’s expert’s testimony.

Our defense counsel presented testimony of additional experts in the fields of pediatric neurology, pediatric neuroradiology, and autistic disorder. The defense team was able to show to the jury that the decision to delay delivery was medically justified since the mother and fetus were stable. In support of their decision, the obstetricians involved, appropriately consulted with a specialist in maternal fetal medicine who advised medical management. Postpartum APGAR scores were 8/9 and cord blood pH was 7.4, indicating appropriate fetal oxygenation at delivery. Skillful deposition of the mother elicited that the child was developmentally normal up to 2 years old, a fact pattern that is inconsistent with fetal hypoxia. Expert evaluation of the child by the defense was able to show that, in contrast to the allegations put forth by the plaintiff, the child suffered from severe autism, a condition that was not caused by the delivery. In light of the facts presented by our defense team, the jury determined that neither obstetrician had departed from good and accepted practice in the care of the mother and infant and returned a verdict in favor of the defense.

**Although the disposition of this claim predates the formation of EmPRO, the management of the claim was handled by EmPRO’s management company (PRIMMA, LLC). To learn more about the EmPRO story, click here.