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Impaired child

Presentation and physician action

A 32-year-old woman came to her ob-gyns’s office on July 15 to begin prenatal care. She was given a due date of February 22. Ultrasound studies were conducted on July 30, October 22, and December 10. The results from these studies were described as normal.

At 4 p.m. on February 12, the patient came to the hospital, and was admitted to Labor and Delivery. At admission, her temperature was 99.8 degrees, but the medical record indicated that she told staff that her temperature at home had been 100.8 degrees. The L&D admission sheet notes the chief complaint as “fever 100.8 and nauseated.”

Subsequent medical records indicate that the patient was feverish (up to 102 degrees) during the two weeks before coming to the hospital. The patient also had a low-grade fever for the last two months of the pregnancy that began after she ate unpasteurized Jalisco cheese. 

Approximately two hours after admission, the patient was having contractions every 8 minutes lasting 45 seconds. The fetal heart rate (FHR) was in the 160 to 170 beats/minute range. At 7:30 p.m., the contractions occurred every 5 to 7 minutes. The FHR continued to be in the 160-170 beats/minute range, but the patient’s pulse rate had risen to 150 beats/minute. At 7:45 p.m., the FHR was in the 170 to 180 beats/minute range.

 The next note appears in the record at 9:40 p.m. The patient was 6 cm dilated and 80% effaced. Her contractions were noted to be irregular and the FHR was 175 to 178 beats/minute. These notes indicate that the ob-gyn ordered oxytocin. 

The next entry at 10 p.m. lists only the FHR as 175-179 beats/minute. Pitocin was increased to 48. At 10:15 p.m., the notes indicate that the patient was 90% effaced and dilated 6 to 7 cm. FHR was 170 beats/minute. Oxytocin was increased to 60 and the notes state “continued variables.” The heart rate decreased to 130 beats/minute for 10 seconds with contractions.

The L&D summary notes that a 6-pound, 5-ounce boy was delivered at 10:44 p.m. The Apgar scores were 2 at one minute and 5 at five minutes. According to the newborn’s hospital record, he had aspirated meconium and his condition was “poor.” He was resuscitated with oxygen, bag and mask, and intubation. At 11 p.m., thick meconium was suctioned. At 11:15 p.m., he was placed on a respirator.

Two pediatricians took over his care at 11:20 p.m. They drew an arterial blood gas, which revealed the following: pH of 6.97; PCO2 of 121; and base excess -8. A notation at 12:35 p.m. states “1/2 cc thick green mucus aspirated via NG tube.” The tube was removed and an oral gastric tube was inserted. The respirator was increased to 55. At 2 a.m., one of the pediatricians inserted a chest tube, and 4 cc of thick, green mucous were aspirated from the tube.

At 3:30 a.m., the infant was transferred to a children’s hospital. His condition was listed as stable but serious. An ABG revealed a pH of 7.2 and PCO2 of 41.

The placenta was sent to pathology and the report notes the clinical diagnosis as “possible growth retardation.” The pathologic exam indicated that the cord had only two blood vessels and that the placenta was discolored. This suggests that the meconium was passed long before birth. A section from the membrane showed severe acute chorioamnionitis. A blood culture revealed gram-negative rods, found to be Listeria monocytogenes. 

The infant was discharged from the children’s hospital 28 days after birth with the final diagnosis of severe meconium aspiration; pulmonary hypertension; system hypertension, resolved; hyperbilirubinemia; Listeria septicemia; and negative head sonogram.

Fourteen years after his birth, when this lawsuit was filed, the child was reported to have developmental delays with associated behavioral abnormalities. He has been treated for attention deficit disorder, optic atrophy with resultant visual impairment, and simple partial seizures. Repeated MRIs have shown persistent periventricular leukomalacia.



A lawsuit was filed against the ob-gyn, alleging failure to timely and properly deliver the infant; failure to timely and properly manage late decelerations; ordering oxytocin in the presence of late decelerations; increasing the dosage of oxytocin after the late decelerations; and failure to timely perform a cesarean delivery.

Also named in the lawsuit were the hospital where the infant was born and the two pediatricians who cared for the infant after his birth.


Legal implications

The issues in this case were complex. The plaintiffs argued that the newborn was injured as a result of perinatal asphyxia. The defense argued that the injury was the result of Listeria sepsis related to the mother’s ingestion of unpasteurized cheese during her pregnancy, coupled with an abnormally developed placenta and umbilical cord. 

The weaknesses in this case were primarily related to documentation. In addition, the baby was slightly tachycardic and there were some decelerations during labor. During his deposition, the ob-gyn admitted that this was a “non-reassuring” fetal heart rate.



This case was settled on behalf of the ob-gyn. The outcome of the case against the pediatricians and the hospital is unknown.  


Risk management considerations

Documentation of patient conditions in a timely manner is essential to having a complete and accurate medical record. Current, complete medical records are not only essential to assist in diagnosis and treatment, but are also extremely helpful to the physician’s defense in a malpractice claim. Every effort should be made to ensure that thorough and timely documentation is done.

While the defense was able to retain experts who testified that the child’s impairments did not occur during labor, the ob-gyn’s decision to order oxytocin in the presence of late decelerations weakened the defense.