You have a lawyer at Painter Law Firm

In high risk pregnancies, labor and delivery team shouldn't wait for a problem before delivering the baby

OB, nurses waited too long to deliver high-risk mom, baby born with brain injury

Electronic fetal monitoring (EFM) is a valuable tool for labor and delivery nurses and obstetricians. It’s the standard of care, used at every labor and delivery unit in every hospital in America.

EFM allows continuous tracking of the unborn baby’s heartbeat and the mom’s contractions. The fetal heart rate pattern also provides clues as to the baby’s oxygenation and overall wellbeing. Doctors and nurses establish an EFM baseline for the patient and then look for trends and changes in it, including:

• Long-term variability: This is the overall trend of ups and downs in the fetal heart tracing line.

• Beat-to-beat variability: This is how the line moves with each beat of the fetal heart.

• Accelerations: These are increases in the fetal heart rate baseline and are a good sign.

• Decelerations: These are decreases in the fetal heart rate baseline. Labor and delivery nurses and obstetricians pay particular attention to the timing of a deceleration in relation to a uterine contraction. Late decelerations, for example, can be a sign that something is wrong and the baby may need to be urgently delivered.

Labor and delivery medical malpractice & EFM data

In many labor and delivery medical malpractice cases, one focus is on whether the physician and nurses should’ve delivered the baby earlier. Another focus is on whether an expedited delivery would’ve made a difference in the outcome. In cases of fetal distress, the unborn baby’s oxygen supply may be impaired or disrupted, which can cause a permanent brain injury, hypoxic ischemic encephalopathy, or cerebral palsy.

As you might imagine, in labor and delivery medical malpractice cases, electronic fetal monitoring data are a big source of evidence. As attorneys for parents and families, we study the EFM strip with experts to investigate whether there were indications to deliver the baby earlier.

On the flip side, physician and nursing defendants frequently argue that EFM isn’t a reliable indicator of whether a baby will be born with serious injuries or impairments. As an aside, I’ve always felt this argument was a bit disingenuous. If EFM isn’t reliable, then why do they use it in the first place?

In other words, defendants try to persuade the jury to ignore EFM data, which doctors and nurses use in real time in the labor and delivery unit. Defendants argue that even if the EFM pattern didn’t look reassuring—perhaps late decelerations or a sinusoidal fetal heart rate pattern—it doesn’t mean that there was something going on in the womb that caused the baby’s profound brain injury. The defendants usually can’t point to anything in particular, though. They just throw a bunch of mud on the wall and see if something sticks.

In labor and delivery cases, our medical experts testify that EFM provides useful information about whether there’s a need for an expedited or emergency delivery. That’s why hospitals everywhere invest in electronic fetal monitoring.

In a high-risk pregnancy, there’s no reason to wait for a problem before delivering

I was recently working on a labor and delivery case where the defendants took a different approach. In that case, the mom was in a high-risk pregnancy. She went to her regular prenatal appointments with an obstetrician (OB/GYN). Because of the high-risk factors of the pregnancy, her OB/GYN recommended scheduling an elective C-Section delivery around 37 or 38 weeks into the pregnancy. The mom agreed and the OB/GYN documented the delivery plan in the patient’s chart.

Around 36 weeks, though, the mom’s membranes spontaneously ruptured (water broke) and she called her OB. The OB told her to go to the hospital, where a labor and delivery nurse verified ruptured membranes and cervical dilation to 2 cm and called the doctor. At that point, there were no signs of trouble on the electronic fetal monitoring

The question we asked in the Texas labor and delivery medical malpractice lawsuit is, “Why wasn’t the delivery expedited before something went wrong?”

In the one telephone call between the OB/GYN and the labor and delivery nurse, they discussed how a routine C-Section delivery had been scheduled with another doctor. The doctor and nurse decided not to prioritize the high-risk delivery over the routine delivery. Even though a second operating room was available, they opted not to use it and just wait.

You can guess what happened.

The labor and delivery team sat around waiting, dangerously presuming that the mom and baby would continue to be fine. And then suddenly things weren’t fine.

The electronic fetal monitoring showed a plummeting prolonged deceleration. The nurse saw it. The doctor saw it. They took the mom to the operating room for delivery, but it was too late. The baby was born with a permanent brain injury.

Tachysystole and hypoxia

When we reviewed the medical records and EFM strip, we noticed that shortly after mom arrived at the hospital, she started having painful contractions that weren’t spaced out. That’s a potentially dangerous condition called tachysystole. Each time there’s a contraction, the baby gets squeezed, which can interrupt oxygen delivery. If the contractions aren’t spaced out appropriately, the baby doesn’t have enough time to recover and get enough oxygen before the next contraction. That can cause hypoxia and, over time, a brain injury.

In this case, the defendants argued that before the sudden deceleration, the EFM looked fine, so there was no need to deliver the baby urgently. Our OB expert agreed on the EFM point but testified that in this high-risk situation the doctor and nurse should’ve rearranged the schedule to expedite her delivery. In other words, labor and delivery defendants can’t use electronic fetal monitoring data to justify their delayed action in a high-risk setting.

If your baby has been seriously injured by poor hospital or labor and delivery care in Texas, contact a top-rated experienced Texas medical malpractice birth injury lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


// Read full biography
// Read more expertise by Robert Painter

Discover More