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News: An incarcerated pregnant woman felt that she was in labor and asked that medical care be provided. A couple hours later, she was taken to the jail facility’s medical clinic, where she was examined and discharged back to her cell. Almost immediately after her return, she gave birth to a baby girl. Despite the fact that the mother and newborn were immediately transported to the hospital, the infant died two days later of meconium aspiration. The jury awarded the infant’s estate $9.6 million.
Background: The 34-year-old woman was arrested and placed in jail. At the time she was 39 weeks pregnant and had delivered her four prior children via cesarean. These facts were shared with prison personnel. Around 10 a.m. on the third day of her incarceration, the woman complained of lower back and abdominal pain. She told the guard that she was certain that she was in labor.
Shortly before 1 p.m., she was transferred to the jail’s contracted health care services clinic, where she was seen by an internist. The internist examined the woman and while he found that she was in labor, the medical records showed that she was not dilated at the time of the examination. She remained at the clinic for observation for the next two hours. Then just before the physician’s shift ended at 4 p.m., she was discharged and taken back to her cell. Prior to discharge, the internist did not re-examine her.
Fewer than 15 minutes after returning to her cell, she delivered her baby alone. The newborn girl hit her head on the floor during the delivery and aspirated meconium at birth. The mother and newborn were rushed to the hospital. The infant died two days later.
The defense contended there was no breach of the standard of care and that the clinic physician was not required to do a repeat cervical examination prior to sending the mother back to her cell. The defense further alleged that the child’s cause of death was not meconium aspiration, as listed on the autopsy, but that death was due to persistent pulmonary hypertension.
The defense experts did concede that more likely than not the woman was in labor and dilated to 4 cm or less at the time she was placed back in her cell.
Prior to trial, the mother dropped her individual claim against the medical clinic and disclaimed her share of any recovery under the wrongful death act, which resulted in the information regarding her prior drug use being barred from introduction at trial. Her arrest when pregnant was for possession of heroin, but all of those charges against her were later dismissed. While the defendants did retain a medical toxicologist who was barred from testifying at trial because he could not state to any degree what role, if any, the mother’s drug use played in causing the child’s death. Ultimately, the jury awarded the decedent infant’s estate $9.6 million; $7.2 million was for the wrongful death claim and $2.4 was for the survivor’s pain and suffering.
What this means to you: "While there is no doubt that the $9.6 million verdict is excessive, there is also little doubt that the behavior of the jail’s contracted health care services clinic was outrageous!" says Ellen L. Barton, JD, CPCU, risk management consultant in Phoenix, MD. The fact that this was the woman’s fifth pregnancy with four previous cesareans clearly put the health care services clinic on notice that careful monitoring was certainly merited, needed, and required to be within an acceptable standard of care. It was clearly inappropriate for the internist not to examine the mother prior to discharging her from the clinic especially since the internist found her to be in labor before.’ And, it was probably also inappropriate for the internist not to call in or at least consult with an obstetrician."
"Although this case involved a contracted health care services clinic, the risk management lessons are equally applicable to a freestanding medical clinic or an emergency room. Protocols and procedures should call for all obstetrical patients — especially those with known histories of previous pregnancies, cesareans, physical impairments, and anything that might indicate potential complications — to be monitored and examined at regular intervals in accordance with approved protocol specifications and most surely prior to discharge. Furthermore, protocols should specify when an obstetrician should be consulted and/or called in to evaluate the patient. Just as labor can arrest, so can labor progress, and it is the responsibility of medical professionals to assess a patient’s status so that appropriate care can be rendered," adds Barton.
"In assessing whether or not to defend a claim, the pros and cons of your case must be carefully assessed. Clearly, the health care services clinic fell below the standard of care. However, this should be weighed against a potentially unsympathetic plaintiff given her history of drug abuse. However, the defense had obtained an inadequate expert along with the plaintiff counsel’s procedural maneuvering prevented the jury from hearing much of the damaging information against the mother. Accordingly, all the jury found out was that the pregnant woman was arrested and incarcerated, but that all charges were dropped. Unfortunately, medical malpractice defense attorneys, just as physicians and providers who allegedly commit malpractice, are often judged in hindsight; and so it appears that the clinic would have done well to have hired the right’ defense attorneys or not to have litigated this case at all, especially since even the defense experts conceded that it was likely the patient was dilated prior to being discharged — a fact that should have been shared with defense counsel prior to litigation. It is likely that if this case had been negotiated privately the patient’s prior drug use might have been used effectively to reduce the settlement to a more reasonable amount," concludes Barton.
• The Estate of Joyce Hughes, deceased minor v. County of Cook, d/b/a Cermark Health Services, Cook County (IL) Circuit Court, Case No. 97L-12473.