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D. P., a minor v Kaiser

Dr. Fagel negotiated a settlement of $3,500,000 on the behalf of a child who suffered severe hypoxic brain damage after his mother’s uterus ruptured during labor. At 41 3/7 weeks gestation, the mother, who was a VBAC patient (vaginal birth after Cesarean), was seen in the defendant’s clinic for a non-stress test. The test was interpreted as non-reactive, so she was admitted to the defendant labor and delivery unit for induction of a labor. However, the L&D obstetrician was never told that she was a VBAC patient and the clinic’s records were never sent to the L&D unit. At 1:39 p.m., Misoprostil was inserted to soften the cervix as part of induction of labor. At 8:43 p.m., the mother signed a VBAC consent form and Pitocin was then started at 3:02 a.m. At 2:54 p.m., the mother was fully dilated and began to push. At 3:53 p.m., the fetal monitor showed a sharp decrease in fetal heart rate and the mother was moved to the operating room at 4:05. The minor plaintiff was eventually delivered by Cesarean section at 4:20 p.m. with dangerously low Apgar scores. As a result of prolonged oxygen deprivation, the minor plaintiff now suffers cerebral palsy and requires 24-hour LVN care.

Dr. Fagel contended that the defendant negligently used Misoprostil, which is contraindicated for a VBAC patient because it is associated with an increased risk of uterine rupture. The defendant was also negligent for failing to promptly recognize signs of a uterine rupture and unnecessarily delaying in the delivery of the plaintiff. The defense claimed that there was no causal connection between the Misoprostil and the uterine rupture, which occurred more than 24 hours after the Misoprostil was administered. In addition, the defense claimed that all care was within standard because delivery of the infant occurred within 30 minutes after fetal distress was first recognized. However, Dr. Fagel was ultimately able to show that the defendant’s negligent actions were a clear cause of the plaintiff’s permanent injuries.