**2. Common allegations of obstetrical professional liability**

Table 1 lists the eight major categories that resulted in allegations of obstetric professional liability. The most common obstetrical allegation was failure to perform a timely C-section. The inability to recognize and react to nonreassuring fetal heart tones was the dominant allegation. Poor communication between the nurse, obstetrician and anesthesiologist in making the decision and provisions to perform an emergency C-section was common. The ability to perform an emergency C-section as a rescue procedure for the patient and/or fetus is a necessary part of the practice of moderate obstetrics. Although only accounting for 3% of all cesarean sections, the timeliness of cesarean sections is a frequent source of litigation. Even today it is unclear if this 30 minute rule from decision to incision is valid and more studies need to be performed. In fact, a recent study showed that approximately one-third of primary C-section deliveries were performed for emergency indications and were commenced more than 30 minutes after the decision to operate, mainly for nonreassuring fetal heart rate tracings. In this study, adverse neonatal outcomes were not increased. Unfortunately despite limited data, the 30 minute response time has become a medical/legal benchmark for adequacy of obstetrical care when a cesarean section is indicated.

Failure to triage a mother appropriately was the next most common allegation of professional liability against practitioners of obstetrical care. It is essential that all emergency rooms have specific protocols in the evaluation and management of the pregnant patient even when the primary complaint may not be obstetrically related. Misdiagnosis of preeclampsia/HELLP syndrome can be fatal to the mother and newborn. More common in group practices, the problems that result from a failure to follow-up on specific tests ordered in the prenatal period. The failure to follow-up on fetal ultrasounds that demonstrated twin to twin transfusion is a specific example. "If you do not document it, you did not do it" is a common cause of speculation

Complicated deliveries can result in catastrophic neonatal outcomes. Many high-risk situations, such as delivering a poorly controlled diabetic, VBAC, forceps, and vacuum require that the obstetrician initiate pediatric/neonatal presence in the delivery room. Infants born under these situations can appear stable and decompensate 12-48 hours after the initial event. The pediatrician needs to be alert for signs and symptoms of anemia, seizures and any altered neurologic status. A twin pregnancy is high risk and should command the presence of appropriate personnel for the delivery.

Regionalization continues to have a role and is in the best interest of the mother and newborn. The state and perinatal centers oversee the rules and regulations that dictate the level of care of the high risk mother and newborn provided at specific hospitals. Triplets and higher order pregnancies, newborns with known congenital anomalies and extremely low birthweight newborns are best delivered and cared for in a tertiary center. The best ambulance is the uterus. Ego can cloud good judgment and compromise the care and outcomes of the mother and fetus.

the cases were reviewed for the defense and 25% for the plaintiff. Of these, 75% of the cases were settled, 19% were dismissed and 6% went to trial with a favorable jury verdict for the defense in 75% of the trial cases. Based on our experience, we developed an evidence-based work-up that can confirm or refute allegations of acute intrapartum asphyxia sufficient to

Table 1 lists the eight major categories that resulted in allegations of obstetric professional liability. The most common obstetrical allegation was failure to perform a timely C-section. The inability to recognize and react to nonreassuring fetal heart tones was the dominant allegation. Poor communication between the nurse, obstetrician and anesthesiologist in making the decision and provisions to perform an emergency C-section was common. The ability to perform an emergency C-section as a rescue procedure for the patient and/or fetus is a necessary part of the practice of moderate obstetrics. Although only accounting for 3% of all cesarean sections, the timeliness of cesarean sections is a frequent source of litigation. Even today it is unclear if this 30 minute rule from decision to incision is valid and more studies need to be performed. In fact, a recent study showed that approximately one-third of primary C-section deliveries were performed for emergency indications and were commenced more than 30 minutes after the decision to operate, mainly for nonreassuring fetal heart rate tracings. In this study, adverse neonatal outcomes were not increased. Unfortunately despite limited data, the 30 minute response time has become a medical/legal

benchmark for adequacy of obstetrical care when a cesarean section is indicated.

Failure to triage a mother appropriately was the next most common allegation of professional liability against practitioners of obstetrical care. It is essential that all emergency rooms have specific protocols in the evaluation and management of the pregnant patient even when the primary complaint may not be obstetrically related. Misdiagnosis of preeclampsia/HELLP syndrome can be fatal to the mother and newborn. More common in group practices, the problems that result from a failure to follow-up on specific tests ordered in the prenatal period. The failure to follow-up on fetal ultrasounds that demonstrated twin to twin transfusion is a specific example. "If you do not document it, you did not do it" is a

Complicated deliveries can result in catastrophic neonatal outcomes. Many high-risk situations, such as delivering a poorly controlled diabetic, VBAC, forceps, and vacuum require that the obstetrician initiate pediatric/neonatal presence in the delivery room. Infants born under these situations can appear stable and decompensate 12-48 hours after the initial event. The pediatrician needs to be alert for signs and symptoms of anemia, seizures and any altered neurologic status. A twin pregnancy is high risk and should

Regionalization continues to have a role and is in the best interest of the mother and newborn. The state and perinatal centers oversee the rules and regulations that dictate the level of care of the high risk mother and newborn provided at specific hospitals. Triplets and higher order pregnancies, newborns with known congenital anomalies and extremely low birthweight newborns are best delivered and cared for in a tertiary center. The best ambulance is the uterus. Ego can cloud good judgment and compromise the care and

command the presence of appropriate personnel for the delivery.

**2. Common allegations of obstetrical professional liability** 

cause cerebral palsy.

common cause of speculation

outcomes of the mother and fetus.


Table 1. Common Allegations of Obstetrical Professional Liability

Risk Management in Obstetrics and Neonatal-Perinatal Medicine 273

dyskinetic type MRI Head

Arterial Cord Gas

EEG

Newborn Weight, Length and Head Circumference Placental Pathology CBC with Differential, blood cultures U/S Head MRI Head

Electronic Fetal Heart Rate Interpretation CBC with Differential, Platelets, NRBCs

Electronic Fetal Heart Rate Interpretation CBC with Differential, Platelets, NRBCs

PT, PTT, Fibrinogen, LFTs, Creatinine, Electrolytes, Glucose, Calcium, ECHO

> Ultrasonography of the head MRI of the head

**ESSENTIAL CRITERIA (Must meet all four) Clinical work-up** 

**Criteria that suggest an intrapartum timing Clinical Work-Up** 

Apgar scores of 0-3 beyond 5 minutes Apgar Score 10 and 15 min

EEG: electroencephalogram; MRI: magnetic resonance imaging; NRBC: nucleated red blood cell; PT: prothrombin time; PTT: partial thromboplastin time; LFT: liver function tests; ECHO: echocardiogram Table 2. Criteria to define an acute intrapartum event sufficient to cause cerebral palsy

Umbilical cord blood gas assessments are the most objective determinants of the fetal metabolic condition at the moment of birth. Umbilical arterial blood reflects fetal status more directly and umbilical venous blood more closely reflects whether the oxygen exchange of the uteroplacental unit is optimal. Westgate et al recommend obtaining cord blood from the artery and vein. However, in clinical practice this is not practical and an umbilical cord arterial gas is most often obtained. Fetal scalp blood sampling has been virtually eliminated in clinical practice without an increase in adverse newborn outcomes. An ongoing dilemma with the College criteria is the requirement of metabolic acidemia to determine whether an insult occurred intrapartum. Many term newborns who are delivered in the presence of fetal acidemia are not recognized by intrapartum events and are triaged to the regular nursery with an uneventful hospital course. Studies have demonstrated when the umbilical artery pH was less than 7.0 at birth, 67% had a metabolic component in their acidemia compared with 14% for those with pH of 7.0 to 7.2. One study showed with an

Evidence of a metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH < 7.0 and base deficit ≥ 12 mmol/L)

Early onset of severe or moderate neonatal encephalopathy in infants born at 34 or more weeks of gestation

Cerebral palsy of the spastic quadriplegic or

Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders

A sentinel (signal) hypoxic event occurring immediately before or during labor

A sudden and sustained fetal bradycardia or the absence of fetal heart rate variability in the presence of persistent, late, or variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal

Onset of multisystem involvement within 72 hours of birth

Early imaging study showing evidence of acute nonfocal cerebral abnormality

Another common allegation of professional liability with poor neonatal outcome involves the use of Pitocin. In our experience, many obstetricians and obstetrical nursing personnel were not familiar with their hospital specific protocol for the use of Pitocin. Failure to discontinue Pitocin with nonreassuring fetal heart tones and the inability to recognize hyperstimulation generates arguments for poor neonatal outcome. Since 1994 the use of antenatal steroids to enhance fetal pulmonary and brain maturation has become the standard of care. Failure to give antenatal steroids between 24 and 34 weeks gestation with evidence of imminent delivery can result in poor newborn outcomes.

Neonatal sepsis can have significant morbidity and mortality. Failure to obtain and document Group B Streptococcus (GBS) status was common. Failure to recognize fetal tachycardia as a fetal response to chorioamnionitis was noted. Chorioamnionitis is one of the most common causes for newborn depression often requiring significant resuscitation in the delivery room. The presence of maternal chorioamnionitis which can include a fever, elevated white count, left shift, fetal tachycardia and foul-smelling amniotic fluid should mandate the presence of pediatrics/neonatology for the delivery.

In the last decade a significant awareness on the dangers of induction for convenience and/or maternal request has evolved. Numerous studies have shown that the late preterm newborn has significant morbidity and mortality compared to their term counterparts. One should never assume that a late preterm newborn at 34-36 weeks will have an uneventful nursery course. In our experience and supported by numerous studies, the male infant is at least one week behind in maturation compared to their female counterparts. Some of the most severe cases of hypoxic respiratory failure can occur in these late preterm newborns.

A common pathway leading to litigation from the previous eight categories of the obstetrical allegations discussed is whether with a reasonable degree of medical certainty a deviation in the standard of care caused morbidity and/or mortality in the newborn. The proportion of cerebral palsy associated with intrapartum hypoxia-ischemia is 8-14.5%. Despite this fact, the use of junk science, unethical expert witness testimony, and speculation in childbirth litigation persist.
