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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)

As a doctor. Mother has diet controlled gestational diabetes and otherwise uncomplicated pregnancy.

November 12, 2011 | Unregistered CommenterAmy Tuteur, MD

Wow, ambiguous today are we? Dr. Tuteur, like you, before retirement, I follow patients that are carrying the dreaded macrosomic infants. Like you I counsel concerning the increased risk of shoulder dystocias with these deliveries. And I also allow patient choice in the mode of delivery. To date I have incurred but one lawsuit for a macrosomic vaginal delivery and that was for right buttock pain (yes that was me). The child was fine. In the past 22 years of practice I have found that there is a higher incidence of shoulder dystocia in the sub-macrosomic fetus. Why? Because macrosomia will usually present with a failure to progress when left to its own devices and not pit'd or pulled out. Just sayin'.

November 12, 2011 | Unregistered CommenterOb

My exact wording would depend on the patient. I think the approach I would take in patient counseling might be letting them know that we now had a little more (not a LOT more) info than we had before and it was time to think about how the decisions she had made might or might not change now that she'd have to re-weigh the risks and benefits. I would allow the mother space and time to "try on" the various options, empathizing with her that she would now probably feel a bit more responsibility for the outcome, whether that be the what-ifs, risks to future pregnancies and breastfeeding difficulties that might accompany a C-section, or the possibilities of a difficult labor, large episiotomy, and damage to the baby. My presentation would also acknowledge the difference in odds of problems when you have a large estimated fetal weight in the context of gestational diabetes versus without. I would talk about what she could and couldn't do and know ahead of time to prepare for the mode of birth of her choice and to maximize her health and the baby's for the remainder of the pregnancy.
Do you think a presentation like this would have made a malpractice suit less likely to have been pursued? Won? How does this sound to physicians? To mothers?

November 12, 2011 | Unregistered CommenterChristie B

I think there is a difference between offering a cesarean and "playing the dead baby card." Purely as a mother who has delivered (vaginally) two macrosomic babies (and one borderline, likely only because he was induced at 37 weeks) and *without* gestational diabetes or any other complications, I did not think ill, necessarily, of the practitioners who offered inductions or cesareans. I did not choose them, I did not agree with a recommendation of that, but the only practitioners that annoyed me in the slightest were the 2 who said that I would be killing myself and my baby if I did not deliver by 37 weeks. One was the practitioner who recommended induction at 37 weeks for my first child (who had/has complications from early delivery) and another was a singular CNM whom I chose not to see after that recommendation (but continued to see others in the same practice). With the others, the offering/recommendation was made in the course of regular appointments, discussing my progress, physical measurements, etc. I said, "No thank you, I am aware of the risk and choose to wait for spontaneous labor" (or some variation) and the conversation continued on normally. I am not every person, and there are certainly people more and less sensitive to certain phrases than I am, but I think it's absolutely possible to offer/recommend something without "the dead baby card." I also think, though, this is where a knowledge of your patient/client comes in very handy; if you've gotten to know them over the course of the pregnancy, you're a lot more likely to be able to direct your turns of phrase to them than if this is the first time you're meeting them because they've been seeing other providers in your practice the whole pregnancy.

As for the lawsuit itself, I can understand where an offering/mention/perhaps even recommendations of a section might be appropriate HOWEVER I know very little about this case and would therefore not presume to be able to comment on the specifics.

NB: All providers who mentioned possible induction/sections for macrosomia did so referencing shoulder dystocia and possible complications, including death in a severe case, so it wasn't as thought the 2 with approaches that I didn't like were the only two that brought up a potentially fatal complication.

November 12, 2011 | Registered CommenterANaturalAdvocate

Would you offer the option of elective c-section? Would you counsel the patient that her baby might die or be rendered severely disabled by shoulder dystocia? If so, isn't that "playing the dead baby card?"

November 12, 2011 | Unregistered CommenterAmy Tuteur, MD

SImply saying that there is a possibility of a fatal outcome is not "the dead baby card," imo. The "dead baby card" (in my head, which is not all heads) is stating that a bad outcome (specifically death or severe disability) is virtually certain, and then refusing to give any information regarding risks/benefits/alternatives, particularly after the patient expressly requests that information.

To me, it's similar to the pediatrician who told me that if I nursed (at all) my son with mild jaundice, that he would be "retarded at least." He said the only way to prevent that would be putting my son in the hospital with no breastmilk (from "tap" or bottle) for at least 3 days. When pressed for more information, studies, etc. (because it went contrary to what I knew/understoof), he refused to give anything else; two other pediatricians I consulted disagreed with his recommendation and I did not follow it. That's not providing information on options, or telling me about the potential risks; that is, instead, making a decision for the patient and using the language necessary to get the patient to agree to it.

November 12, 2011 | Registered CommenterANaturalAdvocate

I'm not sure if Dr. Amy's question was for me or another post, but I'll jump in. Yes, I would offer and yes, I would be clear that death and disability were possible outcomes. I would not leave out the risks of a C-section or assume either mode of delivery was an obvious choice and one that I, as a provider, should make. I would not consider that "playing the dead baby card" and it sounds like at least one other mother here has had risks including death and disability presented without feeling like she was being manipulated by the care provider. It seems like defining characteristics of "the dead baby card" are hyperbolic and bullying presentations by the provider. What do others think? I don't presume to speak for anyone else.

November 12, 2011 | Unregistered CommenterChristie B

wow i could expect this person to sumbit such an article.....

November 12, 2011 | Unregistered CommenterKassedi

I don't know if this counts as the "dead baby card" or if it goes one step further, but when I requested another few days to go into labor spontaneously (I was originally going to be induced at 41 weeks, and pushed for induction at 41+4 instead), the student asked me if I "wanted my baby to die." Then, when my induced labor failed to progress, and I asked for some time to talk about the c-section with my husband, I was told that the "baby would die."

November 12, 2011 | Unregistered CommenterCrystal_B

A provider's obligation is not merely to state the various outcomes. A provider is supposed to make sure that the patient understands that the outcome really could happen. For example, the provider might say that while such an outcome is rare, he or she has seen it happen. Yet the sharing of such an anecdote is what Jill has characterized as "playing the dead baby card."

My understanding of the "dead baby card" is that any time you say a baby might die, even if the chances are slim, you are playing the "dead baby card." That's certainly what I've taken away from discussions on this website and on many other NCB websites.

My point in writing the article is that doctors MUST counsel patients about any and everything that could kill the baby. That is the legal obligation and it is grossly unfair for NCB advocates to disparage the legal and ethical obligation as playing the "dead baby card."

I have read many, many stories on NCB websites where the mother blasts her obstetrician for trying to instill "fear" and trumpets the fact that she ignored the doctor's counseling and the baby lived, so the doctor was wrong. That suggests to me that most NCB advocates don't really understand the concept of informed consent and don't really understand doctor's legal obligations.

"Trusting" birth is entirely incompatible with giving informed consent, so any provider who encourages her patient to trust birth actually violates the principles of informed consent.

November 12, 2011 | Unregistered CommenterAmy Tuteur, MD
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