One medical expert for the plaintiff attorney is most credited for the outcome in a widely publicized obstetric malpractice case against an academic medical center. That outcome is, at most, dubious, and that medical expert is, at most, highly credentialed, holding a medical degree along with several additional advanced degrees and training as an obstetrician and as a perinatologist.
It is his opinion that the baby suffered brain damage largely because doctors failed to perform a Cesarean section for fetal indications due to the mother’s steadfast refusal of fetal indications. Because of this refusal, routine continuous fetal monitoring is discontinued per hospital policy, as is required when any mother refuses fetal indications. Consequently, acute fetal distress occurs during induction of labor and is never diagnosed.
We will never know if this is true. Nor will we know if another factor, chiefly the mother’s early prenatal history in her country of origin, is the proximate cause of microcephaly and cerebral palsy. This was up to the jury. Since this history was excluded from trial because of a motion by plaintiff attorneys that the history was prejudicial, the jury is instructed by the judge to ignore it. I have no doubt that this erstwhile medical expert is behind the motion.
Four things come to mind. First, the medical expert might be right. Brain injury can be prevented by performing a Cesarean section. After all, if there is a 65 percent to 90 percent chance that brain damage occurred overseas, there is a corresponding 10 percent to 35 percent chance that it is caused as this expert postulates, but he never proves it. A 10 percent to 35 percent chance of preventing cerebral palsy by Cesarean section is not to be taken lightly. Therefore, Cesarean section for fetal indications may have made a difference.
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Second, all doctors take the Hippocratic Oath and swear to “First, do no harm.” For obstetricians, this obligation extends to the newborn. The requirement to discontinue electronic fetal monitoring is a resource-based practice guideline for the hospital. It is not a standard of care. However, electronic fetal monitoring during induction of labor is the standard of care.
Doctors are obliged to abide by standards of care, not by practice guidelines. If a practice guideline conflicts with a standard of care and a doctor objects, the doctor writes a detailed note in the medical record at the exact time the objection is made outlining its reasons. Indeed, it seems that there is such a note, but the hospital discontinues fetal monitoring anyway. Nevertheless, doctors should have overridden the practice guideline and faced the consequences of doing so rather than making the newborn face the consequences of cerebral palsy. If this 10 percent to 35 percent probability for prevention is right, cerebral palsy may have been prevented. Otherwise the risk of cerebral palsy is as high as 90 percent and would have happened regardless, but there would be no lawsuit.
Third is the matter of the outside perinatal practice. At 20 weeks, it is the medical practice involved in prenatal care. It knows the mother’s entire history, yet it does not react until 25 weeks. Knowing what it learns, most other doctors would have referred her immediately to a tertiary center, yet the practice stays involved for 5 weeks and is not a defendant in the lawsuit, although it, morally, is just as responsible as the providers at the defendant hospital, who are involved for 5 days. I have no doubt that this expert is behind the timeline. Nevertheless, the timeline starts at the first patient encounter.
Last, but not least, is the issue of informed consent and patient autonomy. Doctors had an option of obtaining a court order to override patient autonomy. Although drastic, there are ample legal precedents for doing so. In this case, however, there is a far less drastic approach. The mother’s steadfast refusal of fetal indications arises from concerns over a classical Cesarean section. However, if a low transverse incision is made on the uterus, the surgeon can modify the incision intraoperatively into a “J” or “T” incision. This provides more room for maneuvers while, at the same time, the majority of the trauma is localized to the lower uterine segment. It remains to be seen how the mother would have decided, if offered this approach instead of a classical Cesarean section.
Largely because of the medical expert in question, the jury verdict is overturned. This would never have happened if not for the expert’s interpretation of patient autonomy. According to this expert witness, doctors could have and should have coerced the mother into agreeing with fetal indications for Cesarean section. His version of informed consent is not only offensive; it is absurd.
Now, to the point. The jury delivers a nine-figure verdict in favor of the mother. Two years later, a state appellate court overturns this verdict and refutes this expert’s theory of informed consent. As those who follow my posts know, I developed a decision-making method, called CCC+C, for collate, compare, calculate, and certify, which tests whether a medical intervention differs significantly from the standard of care. It shows how this medical expert causes this verdict to be overturned, and it does so with a confidence level of 95 percent probability. In contrast to the expert, I only have an MD, an MHA, and training as an obstetrician. Yet I developed this method, and he did not.
Howard Smith is an obstetrics-gynecology physician.
