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Failure to intervene allegations top labor and delivery medical malpractice claims

Obstetricians, registered nurses have key roles in perinatal patient safety

Perinatal or labor and delivery medical malpractice claims are unique for some important reasons. 

First, there’s advance notice. In other words, everyone knows for many months that a baby is on the way. As part of prenatal care, the obstetrician (OB/GYN) sets an estimated due date. 

Next, there’s familiarity. Most expecting moms establish a relationship with an obstetrician who becomes familiar with the patient’s condition and medical history over the course of regular prenatal care. Moms also typically visit the delivery hospital to get oriented and take care of paperwork before the expected due date arrives.

These considerations may suggest that there are surprises with labor and delivery cases than with other type of medical negligence claims. The patient knows the doctor and hospital. The obstetrician and labor and delivery nurses know the patient. 

Despite these factors, though, the most common medical malpractice claims involving labor and delivery are the failure to intervene. We’ll spell them out here. The most common failure to intervene claims, in decreasing order are:

• Mismanagement of labor

• Delay in delivery of the baby

• Improper or untimely management of the obstetrical patient

• Failure to timely report complication of pregnancy/labor

• Other failures in treatment and care 

• Failure to maintain infection control 

• Failure to invoke the chain of command 

• Delay in treating a newborn baby (neonate)

• Delay in managing change in the maternal condition

Some of these perinatal medical malpractice claims focus on physicians. Others focus on labor and delivery nurses. Still others point out problems with the care provided by both the obstetrician and nurses. 

Physician issues

Ultimately, it’s up to the obstetrician, a medical doctor and surgeon, to manage labor and delivery. This means that the OB/GYN must recognize circumstances that require immediate or emergency delivery. When the physician is aware of all relevant information about a patient, any delays or errors involving labor and delivery are likely the responsibility of the physician.

This has been the situation in several cases that we’ve handled where parents retained us to file a medical malpractice lawsuit when a baby was born with a permanent brain injury. While there can be a variety of factors causing fetal distress, including problems with the placenta, nuchal cord (placental cord wrapped around the baby’s neck), or metabolic issues, the end result is typically poor oxygen delivery to the brain and hypoxic brain injury (hypoxic ischemic encephalopathy, or HIE).

In one case, labor and delivery nurses at a Houston hospital called a patient’s obstetrician to report decreased fetal movements. When a pregnant mom reports a decrease in the typical pattern of fetal movements, it mandates immediate medical evaluation. 

On top of that, though, the nurses also communicated to the OB/GYN that electronic fetal monitoring showed a fetal heart rate in a sinusoidal pattern. A sinusoidal fetal heart rate pattern is an ominous sign of severe hypoxia or fetal anemia and is an independent basis for emergency delivery.

Despite appropriate nursing communication, the obstetrician delayed going to the hospital for emergency C-section delivery, and the baby was eventually born with a profound brain injury.

In that case, we focused the medical malpractice birth injury lawsuit allegations of negligence against the obstetrician, rather than the hospital and its labor and delivery nursing staff.

Nursing issues

It has been said that nurses are the eyes and ears of physicians. This isn’t meant to diminish the important independent role of professional nurses. Rather, it reflects the reality that, as hospital employees, nurses are constantly involved and present in the hospital for patient care, while doctors are often in and out. 

Thus, it’s important for registered nurses to perform assessments and reassessments, and to promptly communicate changes in the patient’s baseline (both mom and baby) to the doctor. When the nursing diagnosis merits it, nurses should advocate for prompt medical attention. This sometimes means refusing to take a “no” from an absentee physician, and continuing advocacy up the chain of command to secure medical attention that’s necessary for patient safety.

We recently handled a birth injury medical malpractice case for a family whose fall-term baby was born with a profound brain injury. 

When the expectant mother’s membranes spontaneously ruptured (her water broke) while she was shopping, she rushed and called her doctor. The obstetrician told her to go to the hospital labor and delivery unit for evaluation. A registered nurse verified ruptured membranes and called the doctor to discuss the case. Together, they decided to delay delivery until a scheduled elective C-section case was finished. 

Shortly after that call, though, the mom started having painful contractions that reflected a pattern of tachysystole. This means that the contractions were happening too frequently, with no periods of rest in between each contraction. The labor and delivery nurse didn’t notify the doctor these new findings, even though it was a significant change from the patient’s baseline. 

Before long, the fetal heart rate showed episodes of deceleration on the electronic fetal monitor. This, too, was a change of baseline, but the nurse to tell the doctor about this critical development. 

The doctor remained off-site to wait for the other scheduled delivery to finish up. By the time the obstetrician arrived at the hospital, the  situation had changed from a stable mom and baby to one that required an emergency delivery. Unfortunately, by the time the baby was delivered by cesarean section, he already had a permanent brain injury. The infant was later diagnosed with cerebral palsy.

In that case, the allegations of negligence were against the hospital and its nursing staff. There was no way the doctor could have known about the change in clinical condition without the nursing making a call.

If your baby or child was seriously injured because of poor labor and delivery care in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for 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.


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