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M. O., a minor v Tenet Health System Desert, Inc.

Dr. Fagel obtained a settlement of $8,200,000 on behalf of a child who now has cerebral palsy and microcephaly due to injuries sustained in the birth process. The mother, who has systemic lupus erythematosus (SLE), was able to carry the pregnancy to term without any complications from SLE. She was admitted to the hospital at 1 p.m. with labor contractions and the perinatologist confirmed that the fetal monitor strip (FMS) showed a reactive tracing. At 7 p.m. the perinatologist left and an L&D nurse assumed responsibility for the mother. At 1:06 a.m. the next day, the fetal monitor continued to show a reactive tracing and the mother was given an Epidural for pain. Pitocin was then started and, shortly after, the charge nurse (the nurse who oversees the L&D nurses) ruptured membranes and noticed clear fluid. At 4:45 a.m., the on-call perinatologist instructed the mother to push. The FMS began to show some decelerations, but the perinatologist thought the fetus was healthy and left the room. Between about 5 a.m. and 7 a.m., decelerations continued and the nurse turned off, turned on, and once again turned off the Pitocin in response- without speaking to the perinatologist. At 7:13 a.m., the perinatologist told the nurse he would make a decision about the plaintiff in an hour because he felt the FMS had been reassuring the last time he had heard, which was at 4:45 a.m. Shortly after, there was a shift change and another nurse assumed responsibility for the mother. She was concerned about the FMS, but did not notify anyone because the previous nurse told her the perinatologist was confident about the fetus’ health. At 8 a.m., the charge nurse looked at the FMS on the monitor in the nurse station and immediately called the perinatologist, who saw the patient and ordered a stat C-section. Unfortunately, the in-house anesthesiologist had just started another surgery and was not available. The second call anesthesiologist was then called at home and arrived at 8:34 a.m. The plaintiff was eventually delivered at 9:01 a.m. with critical Apgar scores and was then diagnosed with hypoxic brain damage and total body cerebral palsy.

The defense claimed that all care was within standard because the FMS abnormalities did not require a C-section before 8 a.m., when it was ordered. The defense also claimed that the mother’s small-sized placenta caused blood clots to form in the baby’s brain, with antibodies from the mother’s SLE further contributing to the brain injuries. However, Dr. Fagel showed that it was not the mother’s small placenta or SLE that ultimately caused the child’s injuries, but the hospital staff’s negligence. First, the L&D nurse failed to notify the perinatologist when she turned the Pitocin on and off, despite the continued decelerations between 5:15 a.m. and 7:13 a.m. The charge nurse was also negligent for failing to intervene or be aware of these fetal monitor strip abnormalities, and should have checked the FMS and notified the perinatologist at the 7 a.m. shift change. Finally, the defendant anesthesia group failed to have a system in place that could adequately respond to the 8:06 a.m. C-section request. The fetus’ hypoxia was caused by the mother’s small placenta, which caused growth retardation in-utero. Had the baby been delivered earlier before fetal intolerance to labor became severe, there would have been a normal outcome.