A Toronto mother and her profoundly disabled daughter have received damages of $6.5 million dollars after the baby’s sibling died in utero and the baby experienced permanent brain damage.
Mom’s Toronto based obstetrician was managing her twin monochorionic pregnancy, which was proceeding normally. He had limited experience with this type of pregnancy, but recognized that they brought increased risk; for that reason, it was his practice to deliver all twins before 40 weeks’ gestation. Although he did not enter a risk grade as was required, he believed the pregnancy was at least “B” and maybe “C”, which is high-risk and warrants transfer to a level III hospital for intensive prenatal care and birth. A “B” risk alone recommends consultation with or referral to a specialist, but neither did the doctor do this.
Mom felt as though the fetus was not moving much. The doctor listened with a sonogram and detected two fetal hearts, which he charted as normal. He failed to perform sufficient ultrasounds during the pregnancy, especially after 33 weeks’ gestation. Ordering a Non Stress Test (NST) was insufficient beyond 38 weeks’ gestation, which he did at a level I hospital in her 39th week. If concerns arose as a result of the NST, he would plan to induce and deliver the twins the same day. He failed to follow up on the results of the NST and he failed to properly assess the patient. The doctor also failed to perform sufficient ultrasounds during the pregnancy, especially beyond 33 weeks’ gestation.
As it turns out, Mom’s was the first twin pregnancy that the nurse had ever performed an NST on. She found movement by both twins and confirmed that both were viable. In fact, the NST tracing appears to have recorded only one fetal heart. Additionally, the one FHR that was actively present was non-reactive since there was no increase in the FHR of 15 beats per minute for 15 seconds. The nurse wrongly understood what constituted a reactive FHR, and unfortunately did not speak to the doctor about the NST. Consequently, she would later adopt a non-urgent approach to the order for an emergency Caesarean section (C-section) and allowed the Oxytocin to continue to be infused.
The doctor was also negligent with respect to the NST, as protocol required him to interpret the NST before the patient was discharged, which he did not do. Instead, the nurse believed that she had the right to discharge the patient herself and that it was expected that the physician would review the NST once the patient had gone home. The nurse was in fact expected to call the doctor to report and to leave the NST in an area where the doctor could easily review it. This particular doctor would only check an NST if a nurse expressed concerns, so he did not see the NST until after the baby’s delivery. The NST was in fact non-reassuring; had he seen it when it was performed he would have ordered further investigations, by continuing the NST monitoring and doing a biophysical profile. Had he seen it, he would have delivered the twins that day.
Oxytocin was administered, which acts as a further stressor to an already-distressed fetus. When the doctor ordered an emergency C-section, not only did the nurse not respond with the required urgency, but negligently continued the Oxytocin infusion. Not surprisingly, in the delivery room, the nursing team was unable to pick-up two fetal hearts. The doctor attempted to apply a scalp clip to better monitor the fetal hearts. He was unable to, so he ordered a flat plate x-ray and a C-section. While an emergency C-section is expected to be done urgently, and can be done in as little as 15 minutes, it took another hour to get Mom to the operating room and another 30 minutes before the twins were delivered.
The first twin died in utero 48 hours prior to delivery. The second twin was in respiratory distress, flaccid and unresponsive. She had sustained intrapartum asphyxia and hypoxic ischemic encephalopathy resulting in severe and permanent brain damage. This has left her with extreme developmental delay. She will be dependent in all areas of self care and will require one-to-one attendant care. The injury was likely intrapartal, or within the hours prior to birth. Had the infant been delivered earlier, the brain injury due to prolonged asphyxia would have been largely avoided.
Sommers Roth & Elmaleh Professional Corporation has over 40 years of experience in medical malpractice litigation in the Greater Toronto Area (GTA), Ontario, and across Canada.
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