Dr. Fagel achieved a settlement of $6,000,000 on the behalf of a child who suffers moderate cerebral palsy resulting from injuries that occurred during the birth process. Six weeks before delivery, a judge issued an order to suspend the mother’s obstetrician’s medical license after an investigation by the California Medical Board. However, the order was stayed with the requirement that the OB have a proctor for all his surgeries. The OB notified each of the hospitals where he worked about the order, but the defendant hospital did not inform the labor and delivery unit about the requirement. As a result, when the mother entered the hospital for delivery, none of the nurses were aware about the OB’s restriction of privileges.
The OB examined the mother and diagnosed a compound presentation with the fetal hand emerging alongside the head. However, the OB then left the hospital without taking action to treat this potentially dangerous condition. Shortly after, nurses discovered fetal heart irregularities and called the OB, who ordered a C-section. 15 minutes later, the OB arrived with another OB, who he claimed was his proctor, but at the time was only identified as the assistant surgeon (Later at the deposition, the assistant surgeon denied that he was a proctor and claimed he knew nothing of the OB’s restricted privileges). The plaintiff was eventually delivered with severely low vital signs and was intubated after the hospital resuscitation team failed to do so on several attempts. The baby was subsequently transferred to the Neonatal Intensive Care Unit and diagnosed with cerebral palsy resulting from severe oxygen deprivation to the brain.
The defense contended that the judge’s order only required a proctor for surgeries and did not specifically state that the OB’s privileges were restricted in the labor and delivery unit. As such, the hospital was not negligent for allowing the OB to perform a cesarean section without a proctor. On the other hand, Dr. Fagel alleged that the restriction applied to cesarean sections, as they are in fact a surgical procedure, and that the defendant hospital therefore had an obligation to notify the labor and delivery unit about the judge’s order. As such, the hospital created an unreasonable risk of harm by failing to notify the L&D unit about the OB’s restricted privileges and allowing the OB to take the mother to the operating room without a proctor. In addition, the OB was negligent for not performing a C-section after the initial finding of a compound presentation. Failure to treat the compound presentation likely led to an umbilical cord prolapse, which was most likely the source of the plaintiff’s injuries.
