Jury awards $144 million for failure to perform a C-section
By Amy Tuteur, MD
This post originally appeared on The Skeptical OB on November 9, 2011.
Geoffrey Fieger, famous for representing Dr. Jack Kervorkian, is now notable for a new reason. He just won one of the largest medical malpractice verdicts in history in an obstetric case. The claim? Failure to perform a C-section, of course.
A Detroit-area newspaper reported:
In what appears to be the largest medical malpractice lawsuit verdict ever awarded in Michigan, a Macomb Township family has been granted $144 million in a case against William Beaumont Hospital of Royal Oak…
Markell was born with cerebral palsy and hypoxic-ischemic encephalopathy, and attorneys argued the condition was a result of a traumatic labor and delivery at Beaumont Hospital in Royal Oak…
Markell was 10 pounds, 12 ounces when she was born Dec. 1, 1995 …
The birthing process also caused a brain hemorrhage and bruises to Markell’s body…
She suffered a fractured left clavicle during the delivery and “had no respiratory effort,” as well as seizures, according to court documents.
In other words, Markell was a macrosomic baby who suffered a severe shoulder dystocia.
Shoulder dystocia cannot be predicted in advance although the risk rises in babies over 10 pounds. The scientific evidence, often touted by homebirth and NCB advocates, is that prophylactic C-section for macrosomia does not improve outcomes.
But that didn’t stop Fieger from arguing or the jury from believing that in this case a prophylactic C-section should have been recommended:
In the lawsuit, attorneys for the VanSlembrouck family accused the hospital and its physicians of being negligent in many ways, including failure to recommend or offer a cesarean section procedure …
And though we know, as NCB and homebirth advocates are fond of declaiming, that, due to limitations in the existing technology, estimates of fetal weight vary as much as 2 pounds in either direction in the 3rd trimester, that didn’t stop Fieger from arguing or the jury from believing that the hospital could have obtained an accurate fetal weight prior to the onset of labor:
The VanSlembroucks also accused the hospital of providing negligent prenatal care, including a failure to establish a reliable estimation of fetal weight.
This case is an excellent illustration of the pressures on obstetricians.
Yet no less an authority than our friend Jill Arnold, counseling women on how to avoid an “unnecesarean,” decries prophylactic C-sections for macrosomia, going to far as to disparage the “dead baby card.”
… Is this “recommendation” of a c-section based on evidence or is it merely the practice of defensive medicine? The burden of proof is on the doctor wanting to schedule a primary c-section for a non-diabetic woman.
At this juncture, doctors are known to share a personal anecdote about shoulder dystocia in which the baby died or suffered nerve damage during birth to support their recommendation and scare the pregnant woman into compliance. This is also referred to as “playing the dead baby card.” Such events are tragic for all parties involved, including the labor and delivery staff. They are also EXTREMELY rare and unpredictable.
The American College of Obstetrics and Gynecology does not support prophylactic cesarean delivery for suspected fetal macrosomia with estimated weights of less than 5,000 g, stating that “…it is safe to allow a trial of labor for estimated fetal weight of more than 4,000 g.”
Jill appropriately cites 7 specific studies that recommend against prophylactic C-section for macrosomia.
But it did not matter to this jury that the scientific evidence does not support prophylactic C-section for macrosomia. It did not matter that, due to limitations in existing ultrasound technology, it was literally impossible for doctors to establish a fetal weight any closer than 2 pounds in either direction. All that mattered was what was clear in hindsight: a C-section would have prevented the tragedy that befell this specific child.
Jill Arnold is correct that a C-section for macrosomia is defensive medicine, but as I have argued before, and as this case demonstrates, defensive medicine works. It prevents heartache for patients and it prevents massive judgements for failure to perform a C-section.
Amy Tuteur is a retired OB-GYN who blogs at The Skeptical OB.
Here is my reply to this post:
I like this post a lot.
The point of the Defending Ourselves against Defensive Medicine series in January 2011 was to demystify the landscape of litigation in obstetrics with research and stats and try to get a glimpse into the mental and emotional mindsets of different stakeholders. In case it wasn’t glaringly obvious, the series was a call for a more sensitive approach to looking at all sides of a complicated issue.
While it really sucks as a patient to sit there listening to an absurdly overblown portrayal of the risk of suspected macrosomia as if one were completely innumerate, most people are. According the Department of Health and Human Services, only 12% of U.S. adults are proficient in health literacy (under which health numeracy falls). The reality is that most people do not have the basic math skills needed to make educated decisions about their health care. When I complained a year and a half ago to an OB (as a friend, not a patient) about my first birth, telling them that “I wanted odds! I wanted data! I wanted numbers!” they told me that I probably didn’t get them because, as in their case, their malpractice insurer specifically instructed them to NOT include specific percentages in their consent form.
Patients should know that it ain’t all rosy on the other side of the chart. In fact, I hear it’s often miserable unless you have resigned yourself to just giving in and not beating yourself up for doing what everyone else is doing. When you look around and realize you’re the only fool in town attending VBACs with the ol’ “immediately available” recommendation tethering you permanently to the hospital, I think it’s pretty expected to finally just throw your hands in the air.
Almost everyone ends up butt-hurt in because of defensive medicine. The patient that catches on to the fact that decisions about their health are being made based on non-medical indications and their provider’s personal fear (which is made even worse by news of $144 million awards) of being punished for a bad outcome might get butt-hurt. The provider, who might still be feeling butt-hurt from their last go-around in court is probably too sick of this shit to do anything constructive about it. Annette Fineberg reminded her peers this summer that no one should really be getting too butt-hurt about the uptick in out-of-hospital birth because vaginal birth is being phased off the menu and some women still want that.
Speaking of butt-hurt, let me tell you about a friend of mine who is in the NPDB because a patient gave birth to a ten pound baby and her ass hurt. Am I exaggerating for comedic effect? Nope. You can lose a few weeks of office time for a trial, or you can settle and find your ass in the NPDB just to get it over with.
Amy says she’s happy to come by and engage with you if you have comments, questions, data or anecdotes. Just remember that you’re not just dealing with someone trying to bait you into an argument, you’re dealing with an expert. She is a real Master Baiter. So when she says that defensive medicine prevents heartache for patients and you reply with, “Hey, I was a patient that had a prophylactic c-section for suspected macrosomia and the baby only weighed 7 lbs., 11 oz.” and that you felt a lot of heartache and betrayal over being cheated out of something that mattered to you, you leave the door open for something like, “How dare you value the experience over the outcome! You are alive and your baby is alive. You only feel grief because you are an NCB advocate and believe that your experience matters more than a living baby.” To which you respond, “Jeez, I just clicked on a friend’s Facebook link because I thought the subject looked interesting and now the Westboro Baptist Church is calling me an advocate of NBC and I don’t even watch TV. See if I come back to this freak show of a blog again!”
My preference is discussion in which the unique concerns and feelings of both providers and patients are taken into account. And yet, I now offer you Dr. Tuteur to discuss this with. Enjoy.