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A. R. a minor v Kaiser

Dr. Fagel obtained a settlement of $4,250,000 million on behalf of a child who now suffers cerebral palsy and developmental delays after physicians failed to recognize and respond to fetal distress. The mother was admitted to the hospital and a normal vaginal delivery was anticipated, so the labor was managed by a certified nurse midwife, rather than an obstetrician. After Pitocin, an epidural and Prostin gel was inserted, the fetal monitor continued to show positive tracings. At about 11:00 p.m., the strip began to show decelerations and the OB was called in, but the strip returned to normal so the OB left. At 6:45 a.m., the strip began to show severe decelerations and the OB was called back in. He called for a stat Cesarean section and the baby was delivered at 7:21 a.m. with no heart rate or respiration. After resuscitation, an MRI showed anoxic injury (extreme hypoxia, or, a total decrease in oxygen level) to the basal ganglia. Due to the injuries sustained, the plaintiff will require attendant care for the remainder of his life.

The defendant argued that there was no indication for an earlier delivery and all care was within standard, as the c-section was accomplished within 30 minutes of any problem. The defense also maintained that the cause of the plaintiff’s injury was hypoxia before the onset of labor. Nonetheless, Dr. Fagel proved that there was an undue delay in diagnosis of fetal distress and delivery by emergency c-section. The plaintiff was not delivered until 36 minutes after nurses became aware of the severe fetal decelerations, and the complications likely began even before nurses became aware of the problem. Had the staff taken proper action, the near-total asphyxia and resulting injuries could have been prevented.