Dr. Fagel achieved a settlement of $3,500,000 on the behalf of a young boy who now suffers from cerebral palsy and developmental delays after the defendant medical staff negligently used a vacuum, causing traumatic brain injuries. The mother was first admitted to the defendant hospital with uterine contractions 3 ½ weeks prior to her expected delivery date. The next morning, the mother was assigned to the defendant nurse midwife, Mrs. Jones, and was administered Pitocin to induce labor. By 3:03 p.m., she was completely dilated and entered the 2^nd stage of labor. When prolonged fetal decelerations began just after 3 p.m., the defendant obstetrician, Mrs. Atilano, was called in. The mother then began pushing, but prolonged decelerations of the fetal heart rate continued and, at 3:57 p.m., Dr. Atilano decided she needed to get the baby out.

She decided the best way to accomplish delivery was through the use of an obstetric vacuum. The vacuum was first placed at 3:59 p.m., but had no effect on fetal descent. The vacuum was used again by Dr. Atilano at 4:04 p.m., but once again had no effect on fetal descent. From this time until about 4:30 p.m., the vacuum was applied 5 more times, with the first few attempts by Dr. Atilano herself, the next few by Dr. Atilano and an intern, defendant Bautista, pulling at the same time, and the final pull by nurse Jones. During these pulls, there was no improvement in fetal descent, but the fetal monitor tracing showed an erratic pattern with further decelerations beginning at 4:20. After Dr. Atilano ended the course of vacuum pulls, she still requested that the patient continue to push, rather than calling for a Cesarean section. At 4:50, Dr. Atilano finally called for a C-section, but did not call for a stat or emergency procedure. As a result, the mother was not transferred to the operating room for 25 minutes and was not administered a surgical level of anesthesia until 5:21 p.m. The delays inexplicably continued as the first incision was not made until 5:29 p.m., 8 minutes after the anesthesiologist gave the go-ahead to start. The baby was finally delivered at 5:37 p.m. with critical vital signs. A later CT scan revealed numerous skull fractures and brain bleeding, which slowly developed into a stroke, affecting the minor plaintiff’s entire left side.

As a result of his injuries, the child will require 10 hours of attendant care on each school day and 16 hours of attendant care on each non-school day, plus additional therapy and other medical-related expenses. In addition, he will never be employable in the marketplace.

Dr. Fagel proved that the defendant medical staff committed a variety of errors that directly led to the minor plaintiff’s permanent and debilitating injuries. First, at the time of the vacuum application, the fetus was premature and therefore susceptible to brain damage. The known risk and incidence of trauma related to vacuum use at 36 weeks gestation is far greater than at full term, so the defendant obstetrician should have explored other options before resorting to vacuum use. Furthermore, there was no indication for the vacuum use that began at 3:59 and continued until 4:20 p.m. Although nursing notes referred to prolonged decelerations and a prolonged second stage of labor, neither warranted the use of a vacuum. The fetal heart tracing remained reactive until 4:20 p.m., and the standard of care required an ominous tracing combined with several other factors to warrant the application of a vacuum. The medical staff was also negligent for performing far too many applications of the vacuum between 3:59 and 4:30 p.m. The standard of care allows for just two to three vacuum pulls without descent before the maneuver is to be abandoned, but at least seven attempts were made, increasing the chance for trauma to the fetal brain. In addition, having two operators pull at once, defendants Atilano and Bautista, further increases the chance for skull and brain damage. Finally, taking until 5:37 p.m. to deliver the baby was clearly below the standard of care. Once the fetal tracing became non-reassuring after the series of vacuum pulls, a Cesarean section should have been conducted by 5:00 p.m. stat. Inserts provided by the manufacturer of the vacuum stated that once the vacuum is discontinued due to ineffectiveness, the protocol is to deliver immediately. A stat C-section provides the best opportunity to obtain treatment for damage caused by the vacuum, but the staff did not achieve a Cesarean delivery until more than an hour after vacuum use was stopped.

All in all, the excessive and overly-forceful use of the obstetric vacuum by medical staff without indication caused the newborn’s skull fractures and consequent brain injuries. Because the failed vacuum use was not immediately followed by a stat Cesarean section, as required by the standard of care, the trauma caused by the initial placement of the vacuum was not immediately recognized, resulting in a delay of treatment. Once the trauma was displayed on the fetal monitor tracing, approximately 75 minutes passed before Cesarean delivery was accomplished, resulting in severe brain injury to the infant.