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Palm Beach County, FL

This case arose out of the delivery of the minor male plaintiff by the defendant ob/gyn on March 6, ________. The plaintiffs: Mother, father, and child, claimed that the defendant was negligent for choosing to use a vacuum device to assist in the baby’s delivery, and did so without informed consent. The plaintiffs alleged that the use of the vacuum caused an intracranial hemorrhage and disruption in the blood flow in the baby’s brain, resulting in a hypoxic ischemic brain injury. The plaintiffs claimed that this hypoxic injury ultimately manifested as cerebral palsy, which the child first began to exhibit at about eight months of age. The defendants – which included the doctor and his practice group – argued that it was reasonable for the defendant to offer and use the vacuum as, in his reasonable clinical judgment, the plaintiff mother was “maternally exhausted,” and the baby’s head was in the ideal location for the use of a vacuum. The defendant contended that he had no independent recollection of the delivery, but had followed his routine practice in obtaining proper informed consent before the vacuum was utilized. The defendant also maintained that the minor plaintiff’s cerebral palsy was not caused by the use of the vacuum.

The plaintiff mother had no significant prenatal problems when she went into labor at approximately 1:30 a.m. on March 6, ________. At the time, she was 35 weeks pregnant and was directed by the defendant doctor to go to the hospital where she was admitted for labor and delivery at approximately 2:25 a.m. The defendant doctor had been in contact with the nursing staff by telephone and arrived at the hospital at about 12:15 p.m. that afternoon. The plaintiffs contended that the defendant doctor was talking on his cell phone when he arrived in the labor and delivery room, and that he was involved in four telephone calls between the time he arrived and the time he departed, and that all the telephone calls pertained to the doctor having car trouble.

The plaintiffs also adamantly denied that the plaintiff mother was exhausted at any time while she was pushing. The parents of the plaintiff mother testified that the defendant never said anything to them about using a vacuum to assist in the delivery, and that their first knowledge of the vacuum was as it was being used. The plaintiff’s expert ob/gyn testified that a vacuum-assisted delivery was not clinically indicated, since there was no documentation that the plaintiff mother was maternally exhausted and/or unable to effectively push. He also testified that if the vacuum had not been used, the minor plaintiff would not have suffered cerebral palsy. The baby was delivered at 12:59 p.m. with Apgar scores of 9 and 9 at one and five minutes. The plaintiffs testified that the baby initially did well, but they sought evaluation after he appeared not to be reaching milestones at about eight months. The minor plaintiff was subsequently diagnosed with cerebral palsy.

The plaintiff claimed that the defendant’s use of the vacuum caused an intracranial hemorrhage and a derangement of the internal circulation of the brain due to negative pressure exerted. This derangement then led to a hypoxic brain injury and a “cascade of chemical changes,” which further damaged the brain with the ultimate result of cerebral palsy, according to the plaintiff’s experts.

The plaintiff’s neonatologist testified that evidence showed bleeding between the baby’s scalp and the skull, which he characterized as a subgaleal hemorrhage. The plaintiff’s neuroradiologist testified that a March 10, ________ head ultrasound, performed at four days of age, showed changes consistent with hypoxic ischemic injury. The neuroradiologist also testified that MRI scans performed in ________ and ________ showed patterns consistent with hypoxic ischemic injury, but he found no evidence of intracranial bleeds.

At the time of trial, the minor plaintiff was 17 years old and suffers from cerebral palsy with autistic features. The plaintiff’s economist testified that the plaintiffs’ total economic damages were between $________ and $________, assuming a life expectancy in the mid-60s.

The defendant doctor testified that he had never used a vacuum to assist in delivery without first discussing it with the patient and obtaining the patient’s consent. Thus, he was confident that he discussed the use of a vacuum with the plaintiff mother. The defendant’s ob/gyn expert testified that the vacuum was a reasonable recommendation given that this was a low outlet delivery since the baby’s head was visible when the vacuum was applied.

The defendant’s experts opined that the minor plaintiff’s clinical course in the neonatal intensive care unit after delivery was not consistent with a significant hypoxic injury suffered during labor and delivery. Imaging of the infant’s brain – including an MRI performed in August ________ – at roughly 18 months of age, did not show changes consistent with a hypoxic ischemic injury, according to defense arguments.

The defendant testified that he used the vacuum for no more than three contractions preceding delivery, and would have applied traction while the plaintiff mother pushed. Based on the fetal monitoring strips, the defense argued that the vacuum cap would have been affixed to the baby’s head for no more than four-and-a-half minutes.

A neonatologist, who was present at delivery because of the prematurity at 35 weeks, testified that there had been no signs of hypoxic injury at birth. The baby was admitted to the neonatal intensive care unit because of respiratory distress, which the neonatologist opined was typical for a 35-week premature baby.

The neonatologist also testified that the child’s course in the NICU was also not consistent with a hypoxic brain injury caused at the time of delivery. Evidence showed that the baby never needed to be ventilated and by 44 hours of life, he no longer needed supplemental oxygen.

The defense contended that, based on the minor plaintiff’s clinical course and imaging of his brain, the brain injury that caused his cerebral palsy was most likely due to a subclinical viral infection that occurred in utero during the third trimester well before labor and delivery.The jury found no negligence on the part of the defendant, which was a legal cause of injury to the plaintiffs.

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