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

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.