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Jury awards $144 million for failure to perform a C-section

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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. 


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Reader Comments (59)

Should be interesting to see what happens to the c-section rates in the state of Michigan over the next few years

November 11, 2011 | Unregistered CommenterAmanda

And what if the c-section had gone wrong and the mother died or was hurt? Now we have a beautiful (possibly only) 7lb baby with no mom because someone performed one too many c-sections. It goes both ways. Right now we have too many babies and mothers being hurt because of too many c-sections. I doubt the awards for the defensive cesareans-gone-wrong are nearly as high (or as frequent) as those like the case above.

November 11, 2011 | Unregistered CommenterLiza

@Liza - I think the difference is that no lawyer would take case B (mother dies from C sections). Sometimes surgeries have bad outcomes, after all.

November 11, 2011 | Unregistered CommenterErin

My wife is 38 weeks and we had an ultrasound due to her having GD. They are estimating the weight of the baby to be 8.5 lbs and the doctor is wanting to induce labor at 39 weeks. I am a little nervous about moving things along the unnatural way. Does anyone have any recommendations or advi ce? Should we wait it out ? Is it safe to induce at 39 weeks?

November 11, 2011 | Unregistered CommenterJay

I like this post from Dr. Tuteur. It must be maddening to practice in an environment where you have a subset of patients very angry if you don't practice evidence-based medicine knowing that there is a jury ready to smack you if you do and something goes wrong. Just as we expect care providers to understand and work with the things we value (like not be traumatized or preserving as much health and safety for future pregnancies), we have to understand and work with the things physicians value (like not feeling responsible for a catastrophic outcome or being sued into oblivion).

What do you all think about the fact that the woman involved wasn't counseled about the possibility of a large baby having a possibly difficult delivery and the option of a C-section? While I would hate to see a woman forced into a C-section in the case of possible macrosomia, I also think it should prompt some discussion and preparation. Based on family history, length of gestation and just plain palpation, the odds were good that I was having a large baby (turned out to be 9#14, no gestational diabetes), so I made sure that I and my husband were clear on a variety of measures to help with a shoulder dystocia (Gaskin maneuver, McRoberts with suprapubic pressure) so that we could be maximally cooperative with our midwife in case of trouble. That may be more than most are able/willing to do but surely all women could use some information/discussion when risks are identified.

Also, enumerate means to list things and innumerate means to lack basic math skills. If we're going to be inviting Dr. Tuteur to swim, let's not chum the water.

November 11, 2011 | Unregistered CommenterChristie B

Jay, I'd wait. I have known many mamas who pushed out a 10+ lb baby - upright, not on their backs in stirrups, and physiologically, not the count-to-ten ourple pushing that hospitals love to try to make mamas do. Anyway, I would at least make sure your wife has a favorable Bishop score before even agreeing to discuss induction.

November 11, 2011 | Unregistered CommenterKJ

Christie, I am cracking up and so grateful you pointed that out. It's always wise to when typing a speedy reply that involves making a point about literacy to rely solely on spellcheck, right?

November 11, 2011 | Registered CommenterJill

"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."

Or, apparently, to sit on juries?

"What do you all think about the fact that the woman involved wasn't counseled about the possibility of a large baby having a possibly difficult delivery and the option of a C-section?"

But isn't that what anti- C-section advocates call "playing the dead baby card?"

November 12, 2011 | Unregistered CommenterAmy Tuteur, MD

Hi Amy,

How do you interpret the expression "dead baby card" in the context of counseling for c-sections for suspected macrosomia? If you can spell that out for me, I can be a little more precise in my reply. I really like this topic so I would like to spare you another cornball ramble like you see above.

Glad you showed up. I was thinking I needed to add you to the Butt-hurt Stakeholders paragraph.

One reason why I am so glad you gave me a heads-up about your post on Wednesday is because it's timing is very strangely coincidental. I had been on the phone with someone not even 24 hours prior talking specifically about the static pages on the site. I called them myopic in their focus and said that they are very interesting for me to read now, as they were written three-and-a-half years ago. The tone is different and there's a prescriptive air to them that preceded my discovery of the nuances and politics of childbirth rhetoric. The pages are set to be archived on or around December 15, which is why I am so intrigued by your timing in linking to them this week.

I'm not an anti-cesarean advocate. I am definitely more like an NBC advocate because I love 30 Rock and SNL.

November 12, 2011 | Registered CommenterJill
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