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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)


I referred to the "dead baby card" because that's the way that you characterized it.

"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.”

So it seems more appropriate for me to pose the question to you: what is the "dead baby card" other than counselling patients truthfully that a specific situation poses an increased risk of death?

November 12, 2011 | Unregistered CommenterAmy Tuteur, MD

Dr. Amy:

Taking the whole post and only picking out a one or two line question/reply back about the dead baby card isn't entirely constructive. It is more like shared hyperbolic responses from both sides. NCB advocates as you generally categorize them (as opposed to NBC advocates) use it when they feel they have not been given adequate counsel or truthful counsel about a procedure or the risks associated with it.

I would imagine that doctors feel similarly, that when they discuss with patients risks and benefits of a procedure and they feel like the conversation is falling on deaf ears then they feel like they have to play it.

I think there is probably a better place we could all jump off from for a more meaningful discussion of both you and Jill's posts here today than the "dead baby card".

Informed decision making is a paradigm and systemic shift where doctors will not be pressed to use defensive medicine in the current hostile work environment of most hospitals and risks and benefits are discussed honestly and openly, and patient autonomy in birth is valued over ease of treatment. Convenience or cost is valued over process when it comes to birth in hospitals. The current system drives the problems and these problems were created over time.

November 12, 2011 | Unregistered CommenterSaanenMother

I think "dead baby card" is a term used to describe not the fact-based and rational advice many OBs give to their patients, but rather the attempt by an unfortunate subgroup who use emotional manipulation and fear-based appeals to convince patients to do what they (the OBs) want them to do. Merely counseling and mentioning risk to patients is not enough to label something "playing the dead baby card" but HOW such advice and counsel is given is important. Unfortunately, it isn't something that OBs are given much training and guidance on, they just have to figure it out on their own, to varying degrees of success.

November 12, 2011 | Unregistered CommenterLarissa

Amy asked: “what is the "dead baby card" other than counselling patients truthfully that a specific situation poses an increased risk of death?”

I wish you could know how funny your timing is.

Tell you what. I’ll do the personalized response first, then take a little time to write up something a little differently.

I craved an honest, truthful discussion of risk. I know the CNM and OB were well intentioned and our conversations were polite. I got some numbers… EFW and head to abdomen ratio. ACOG’s 2003 guidelines on management of suspected macrosomia were cited. There was such an elephant in the room, though. The ultrasound estimates came back and right off the bat, I was told I needed a cesarean. I did not expect to hear that at all (I was completely oblivious to the frequency of cesareans at that point), so I asked why. The response? Because big babies are more likely to experience shoulder dystocia and I have seen shoulder dystocia and (shudders) it can be really bad.

I asked for more information. I heard about procto-rectal episiotomies, breaking the clavicle, how the Zavanelli maneuver (described in horrific detail) usually doesn’t work but they *could* try that if they have to. And then it was time to get that cesarean scheduled.

Having been counseled on risks of surgery before by specialists, I knew something was missing. Nobody went straight for the worst outcome in those cases without also discussing benefits, success/failure rates and odds. Elective meant elective. My preferences were taken into account and I felt like the decision was truly in my hands. I trusted their clinical judgment and experience because… well, why wouldn’t I? [Incidentally, there is a great bit of funny dramatic irony in here. Earlier this year, I was looking for a journal article in which a picture of me in surgery appeared (because I think everyone wants a picture of their own tibial tuberosity to hang above the mantle) and I contacted the surgeon from the last of several surgeries. I don’t want to say too much about a personal convo, but he checked the op report from the first one in the 80’s when I was a minor and told me that surgery did not seem to have hurt, but it probably didn’t make any difference. I wish he could know how funny it was that he offered that bit of information to me of all people. And how hard I laughed.]

Anyway, the worst case scenario should never be a substitute for appropriate counseling on risk and benefits. It smacks of coercion, disingenuousness and projection of fear onto the patient that needs to be resolved elsewhere (adoption of a single payer system, tort reform, birth injury funds, easy stuff like that). For me, it played off of the primary driver of my behavior and general weirdness in the weeks before and after birth—survival. It was so easy to pick up on a similar visceral fear from the midwife and doctor of their own self-protection and wanting to shield against a bad outcome for them and for me. The subtext was This will protect me and it’s probably going to be a reasonable option for you, too, so can’t we just agree that this is a great compromise for everyone involved?

Because they built such a poor case for the need for a cesarean and because, to me, the underlying tension was palpable, I started reading. And here I am.

In conclusion, that is what I thought the “dead baby card” was when I wrote this in the summer of 2008-- inappropriate counseling on risk using loaded language to provoke an emotional response that will ultimately scare the patient into consenting. I learned after writing this that there are a lot of patients who would prefer to stick their fingers in their ears so their happy bubble doesn’t burst and out of respect for them and what I went through as well, I will say that timing of these discussions is very important.

I anticipate you picking a five word quote from this mass of text and honing in on it, cutting and pasting something from another comment, then making a sweeping generalization about “advocates” and how they are dumb. But I know you can do better than that, so I will hold out hope.

November 12, 2011 | Registered CommenterJill

Ultrasound estimation of fetal weight can be notoriously inaccurate. Until we have an accurate way of estimating fetal weight, this idea of c-section for macrosomia is ridiculous. I'd like to bring up the case of a woman in Pennsylvania who was advised by her doctors to have a c-section for macrosomia. She refused. They actually got a court order that said if she returned to that hospital, they could do a c-section against her will! She signed herself out AMA, went to another hospital and had an easy vaginal birth for a 13 pound baby. http:advocatesforpregnantwomen.org/articles/forced_c-section.htm This obstetric culture that thinks they know better than the woman is prevalent. A woman in Florida was arrested at home because she was attempting a VBAC against her doctor's advice. There is a videotape of the arrest, I believe. This woman wasn't as lucky--they did do a c-section on her against her will. http://en.wikipedia.org/wiki/Pemberton_v._Tallahassee_Memorial_Regional_Center I had a case where I sent a first-time Mom for an ultrasound for suspected growth restriction. Two weeks before she went into labor the ultrasound tech told her the baby weighed "at least 9 pounds." As soon as this woman started pushing, she said, "It's not going to fit." "It's not coming." She just couldn't believe me that the baby was NOT that big. She birthed a 7 lb 0 oz baby. I truly don't know how OB's can justify an elective c-section for a condition we cannot accurately diagnose.

November 12, 2011 | Unregistered Commenterjoycnm

Two things I want to say:

1. Thank you to Amy for agreeing to cross-post here.

2. I have a lot of trouble talking about specific cases in the news like this because it doesn't feel completely right to start discussing related issues rhetorically. No one of us were there and no one really knows except the people involved what happened and how they feel about it. I feel comfortable discussing how news of a verdict like this might impact attitudes about cesareans for macrosomia and already prevalent fears of litigation, but I want to also respect that there is a suffering family celebrating that their daughter will have care she needs for life and some doctors who have to deal with the consequences of being held responsible for an unpredictable event.

November 12, 2011 | Registered CommenterJill

Joycnm wrote: "I truly don't know how OB's can justify an elective c-section for a condition we cannot accurately diagnose."

Medically, ethically or emotionally? I think it depends on how you look at it.

November 12, 2011 | Registered CommenterJill

Or financially, in light of this article.

November 12, 2011 | Registered CommenterJill

Here's what I want to know:

Suppose that tomorrow you were faced with a woman in a similar situation, and an estimated fetal weight of 10 pounds. Would you offer her an elective C-section? Why or why not? How would you counsel her about the risks? Could you do that without mentioning the risk of death? In what way would that be different than playing the "dead baby card?" Please tell me the specific language that you would use.

November 12, 2011 | Unregistered CommenterAmy Tuteur, MD

Am I a doctor, midwife, friend or Advocate™ in our role play? Any other details about the pregnancy I should know about?

November 12, 2011 | Registered CommenterJill
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