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Obstetrical negligence: finding evidence in the medical records.

Attorneys need to know a lot of medicine to evaluate a brain-damaged bate; case. Important proof often involves showing that the infant suffered a period of oxygen deprivation resulting in fetal distress. Fetal distress has been called "a precarious fetal condition that, if allowed to persist, may lead to permanent damage or to perinatal death."(1)

If the case appears to have merit after a preliminary review of the records and the applicable standards of care, counsel will want to retain an expert to examine the records closely. First, however, counsel must become familiar with the various signs of distress and be able to recognize these in the medical records.

The evidentiary requirements for obstetrical negligence are no different from those in other medical negligence cases. Negligence must be proved through medical records and testimony.

Statistics indicate that most cerebral palsy babies are not victims of negligence. In evaluating a case, therefore, counsel must carefully comb the labor and delivery records for deviations from the standard of care. The fetal heart monitor strip and neonatal care records must be examined. From these, the attorney can make a preliminary evaluation of the case's merits. Attorneys should start with the following two sources to determine the appropriate standard of care.

* The American College of Obstetricians and Gynecologists (ACOG). Publications from this group are useful because ACOG is the educational arm of the American Board of Obstetrics and Gynecology. Publications can be obtained from the ACOG Resource Center, 409 12th St., S.W., Washington, DC 20024. Past publications have included technical bulletins, committee opinions, Standards for Obstetrics--Gynecological Services, Quality Assurance in Obstetrics and Gynecology, Professional Liability: A Resident's Survival Kit, and Precis IV: An Update in Obstetrics and Gynecology.

* The Association of Women's Health, Obstetric, and Neonatal Nurses (AWHONN), formerly the Nurses Association of ACOG (NAACOG). NAACOG publications may contain evidence of nursing standards of care. This group publishes technical bulletins similar to those by ACOG. These include Physical Assessment of the Neonate, Induction of Labor, and The Nurse's Role in Electronic Fetal Monitoring. Attorneys can write to AWHONN in care of the Communications Department, 70014th St., N.W., Washington, DC 20005-2019.

Although ACOG and NAACOG technical bulletins contain disclaimers, they can still be very useful as evidence of the standard of care. Counsel can compile a standards library using these sources and obstetrical texts.

It is normal in every delivery for a fetus to undergo same stress.(2) Normal uterine contractions or umbilical cord compressions are the common stressors. A fetus unable to adequately handle the stress is deemed to be experiencing fetal distress.

The mechanism of distress is oxygen deprivation, which can occur in two distinct scenarios: fetal hypoxemia (insufficient oxygen in the blood) and fetal hypoxia (insufficient oxygen to the tissues).

The mother's and baby's labor and delivery records should be reviewed for the following: presence of meconium, irregular readings on the fetal heart monitor, and fetal scalp blood pH determinations of less than 7.25.(3)


This is a greenish-brown substance found in the fetal bowel. It is in essence the fetal feces. It stains the normally clear amniotic fluid. Although the presence of meconium alone is not conclusive, many medical authorities agree that meconium staining is at least consistent with fetal distress and must be dealt with promptly.

Hypoxia triggers the release of meconium. The fetal response is not only a relaxation of the anal sphincter but also an acceleration of the bowels, producing a bowel movement. As ACOG standards state, "[T]he fetal gastrointestinal response to hypoxia is increased motility, usually with the release of meconium."(4)

A nurse will likely be the first to recognize meconium passage. Therefore, counsel should look for references to it not only in dictated reports but also in nursing notes and on the fetal heart monitor strip.

Although meconium staining may be suggestive of fetal distress, it is not conclusive.(5) The standard of care does not require an immediate cesarean section. However, "the presence of meconium should be an indication for fetal heart monitoring to determine whether hypoxia exists."(6)

Irregular Heart Monitor Readings

Before the electronic revolution, physicians listened to the fetal heart with an instrument called a fetoscope. This procedure was called auscultation. As early as 1965, labor and delivery teams were required to record the fetal heart rate every 30 minutes during the first stage of labor so long as no problems surfaced.(7) In the second stage of labor, the standard required recording the heart rate every five minutes.(8)

In states with liberal statutes of limitation, counsel may still run across a chart where this method was used. A timeline is the only effective way to evaluate this type of case. A nurse or experienced paralegal can plot out what action the labor and delivery team took as the patient's labor progressed.

Auscultation was not a highly reliable method because the fetal heart rate between samplings was unknown. If the fetal heart rate is listened to every 15 minutes for a duration of 30 seconds, only 3 percent of the available data is recorded. ACOG has criticized the method as having no value in detecting early asphyxia.(9) Nevertheless, ACOG's current position is that electronic fetal monitoring (EFM) is not required.(10)

Continuous EFM more accurately detects fetal distress than auscultation. The monitor produces simultaneous readings of two important patterns. The upper tracing represents the fetal heart rate (FHR); the lower, the mother's uterine contractions. Both tracings are displayed on a rolling paper referred to as the fetal monitor strip. The strip is divided into one-minute intervals, and fainter lines subdivide it into 10-second intervals. This allows for accurate assessment of what the baby's heart was doing at a given time.

Although EFM was generally available in the early 1970s, it was not until 1985 that ACOG required facilities providing obstetric care to have continuous electronic fetal monitoring equipment available.(11) Thus, attorneys who discover that the auscultation method was used after 1985 should inquire why EFM was not used.

In the early days, fetal monitor strips were not kept as part of the hospital chart. In 1977 and again in 1982, ACOG standards required monitor tracings to be a part of the medical record and readily retrievable.

Hospitals sometimes keep the fetal monitor strip separate from the patient's medical records, requiring counsel to request the strip from the labor and delivery department. It is not unusual to find that the continuous paper strip is no longer intact and that the hospital has photocopied it on regular-sized paper. Counsel may have to paste the copies together to fully appreciate the tracings.

Although EFM proved to be a great advance over auscultation, it also created new responsibilities for hospitals. Trained staff must be on hand to activate the monitor, inspect and analyze the strip almost continuously, and intervene in the event of ominous findings.(12)

Fetal heart rate can be measured by either external or internal means. An external monitor measures the heart rate by a transducer attached to the mother's abdomen. This sensor detects heart valve movement and records the waves using Doppler effect principles.

An internal monitor directly records heartbeat by an electrode attached to the fetus. The electrode is inserted into the vagina, passed through the cervix, and fixed to the fetal scalp. The internal method is generally recommended in high-risk pregnancies--such as where the mother has diabetes or the infant is in a breech position--because the data are more accurate and easier to interpret.

Under either method, the machine calculates the interval between heartbeats and records the number of beats per minute. These figures are then transcribed on the strip.

The lower part of the strip reflects the uterine contractions. A device attached to the abdomen or inserted into the uterus measures the pressure being generated by a contraction. In this way, the presence and intensity of a uterine contraction may be measured.

When interpreting fetal monitor strips, the attorney will be looking for bradycardia, heart rate deceleration patterns, and changes in heart rate variability. Standing alone, abnormal readings do not necessarily provide dear evidence of fetal distress. With other findings, however, they can indicate a hypoxic fetus.

Bradycardia. One warning sign on the heart monitor is bradycardia, fetal heart rate below 120 beats per minute (BPM) that persists for two or more minutes.(13) (Normal fetal heart rate ranges between 120 and 160 BPM.)(14) Within this broad definition, bradycardia can be subdivided into mild, marked, or severe readings.

Mild bradycardia is defined as a fetal heart rate of 100 to 119 BPM.(15) This reading is "usually not associated with fetal compromise."(16) If there is other evidence of fetal distress, however, counsel should look closely at the labor and delivery team's response. Changing from an external to internal fetal monitor or performing a fetal scalp,blood sampling are appropriate responses.

Marked bradycardia is defined as a fetal heart rate of 80 to 99 BPM.(17) The seriousness of this finding cannot be understated. "A fetal heart rate of under 100, if maintained for more than 3 to 5 minutes ... means that the baby is poorly oxygenated and under a severe asphyxial stress. This baby should be immediately delivered by cesarean section to avoid the progressive damage of asphyxia."(18)

Severe bradycardia has been defined as a heart rate of less than 80 BPM for three minutes or more.(19) It is termed "an obstetric emergency" and demands immediate delivery.(20)

Irregular deceleration pattern. This is another warning sign. Decelerations are decreases in the fetal heart rate that are generally related to changes in intrauterine pressure. The fetal heart rate decelerates and reaches its lowest point after a contraction has peaked. It then returns to the baseline, or nonstressed, heart rate after the contraction has ended. Thus, review of the fetal monitor strip should focus on the heart rate during uterine contractions. The tracing for a contraction will display a peaklike pattern. The corresponding fetal heart rate must be evaluated for decelerations.

Deceleration patterns that occur before the contraction (early), occur after the contraction (late), or do not correlate to the contraction (variable) may be indications of fetal distress. Although they should not be ignored, early and variable decelerations are probative only if other signs of distress are present. A late deceleration finding on the monitor strip is perhaps the best evidence of distress. Late decelerations are "indicators of fetal compromise regardless of severity."(21)

Late decelerations do not necessarily mean that the FHR descends below the baseline rate. In fact, most late decelerations occur within the normal FHR range.(22)

Late decelerations are indicators of fetal hypoxia.(23) Therefore, if late deceleration patterns are present, the fetus should be delivered as soon as possible.(24)

Clearly, EFM's usefulness in detecting hypoxia before permanent brain damage occurs cannot be overstated.

Changes in heart rate variability. These may also signal distress. Beat-to-beat variability refers to the variation in the interval between fetal heartbeats. Some variation is normal. For example, variation may increase during fetal movement. Changes in variability, however, may be a sign of distress. An early effect of fetal hypoxemia is an increase in variability, while prolonged hypoxia and acidosis will reduce variability.(25)

Abnormal Blood pH

If the fetus is not receiving enough oxygen, the acid levels in the blood will build up, causing a decrease in blood pH. This condition is known as acidosis. Fetal blood sampling is used to diagnose acidosis by measuring blood pH. A tiny incision is mate in the fetal scalp and a drop of blood extracted. This sample is placed in a machine that prints the pH in 30 seconds or less. The pH reading should be found in the blood-gas page of the medical chart.

ACOG provides that fetal blood sampling may be indicated when there is (1) meconium staining, (2) an abnormal or confusing fetal heart rate pattern, or (3) decreased baseline variability and the physician cannot determine whether it has been caused by fetal acidosis or maternal medication.(26)

Despite these guidelines, ACOG has tried to downplay pH significance: "Although its exact role is controversial, determination of fetal capillary pH (scalp sampling) may be a useful adjunct to interpartum fetal assessment but is not considered a standard of care."(27)

In the area of interpretation of fetal blood sampling, ACOG has aggressively attempted to distance itself from standards of care. In 1976, the organization took the position that a pH below 7.20 established fetal distress.(28) A year later, ACOG advised that if a pH of 7.20 exists, the fetus should be "delivered in the most expeditious manner."(29) In comparison, 12 years later, the organization issued the following nonstandard: "A scalp blood pH of less than 7.20 is considered abnormal and generally is an indication for some type of medical or surgical intervention."(30)

Additionally, if hypoxia is suspected, blood may be drawn from the umbilical cord at the time of birth to measure the pH. Despite a long history of linking oxygen deprivation and the pH reading to brain-damaged babies, ACOG tried again in 1992 to limit obstetrics liability by providing that a cord pH of less than 7.00 was required to connect perinatal asphyxia to a neurologic deficit.(31) This has been referred to as the "magnificent 7" pH causation defense.(32) Many authorities believe the ACOG position is unreasonable.(33)

Finding a normal fetal blood pH does not necessarily undermine the plaintiff's case. Oxygen deprivation causing damage that occurs early in the labor will not always be reflected in a fetal blood sample. The method of drawing the sample can also be significant. Sometimes the sample is drawn from the umbilical artery of the newborn following delivery rather than from the fetal scalp while in utero. The attorney should be aware that "normal umbilical cord acid-base and blood gas values may be obtained from a fetus that dies as long as 10 minutes before birth."(34)

Reviewing the medical records for signs of fetal distress is just the starting point in evaluating these cases. If counsel finds evidence of distress in the medical record, the case may be worth pursuing. If warning signs exist, counsel must then determine whether the obstetrician and the labor and delivery team responded properly by performing intrauterine resuscitation or a prompt cesarean section. Again, counsel will want to check the ACOG standards.

Obstetrical negligence cases provide medical and legal challenges. Counsel must know the medical issues surrounding labor and delivery and be thoroughly committed to the case when undertaking representation.


(1) John F. Huddleston, Management of Acute Fetal Distress in the Intrapartum Period, 17 CLINICAL OBSTETRICS & GYNECOLOGY 84 (1984). (2) For a comprehensive analysis of fetal distress, see STEPHEN H. MACKHAUF & STANLEY TUSSEL, FAILURES IN THE DIAGNOSIS AND TREATMENT OF FETAL DISTRESS (1992) and OBSTETRICAL MALPRACTICE: FAILURE TO DIAGNOSE FETAL DISTRESS (1994). Organizational ideas as we.. as authorities were partially derived from these texts. (3) NATIONAL INST. OF HEALTH (NIH), CAESAREAN CHILDBIRTH 387-88 (1981). (4) ACOG, PRECIS II: AN UPDATE IN OBSTETRICS AND GYNECOLOGY 30 (1988). (5) NIH, supra note 3, at 391; RICHARD E. BEHRMAN, NELSON TEXTBOOK OF PEDIATRICS (14tb ed. 1992). (6) MANAGEMENT OF LABOR 182-83 (Wayne R. Cohen & Emanuel A. Friedman eds., 1983). (7) ACOG, STANDARDS FOR OBGYN SERVICES (2d ed. 1965). (8) WILLIAMS OBSTETRICS 337 (Jack A. Pritchard et al. eds., 17th ed. 1985). (9) ACOG, PRECIS 111: AN UPDATE IN OBSTETRICS AND GYNECOLOGY 134 (1986). (10) ACOG, STANDARDS FOR OBGYN SERVICES 36 (7th ed. 1989). (11) ACOG, STANDARDS FOR OBGYN SERVICES 29 (6th ed. 1985). (12) WILLIAMS OBSTETRICS 302 (F. Gary Cunningham et al. eds., 18th ed. 1989). (13) ACOG, supra note 9, at 134. (14) ACOG, TECHNICAL BULLETIN NO. 44 (1977), replaced by NOS. 132 and 207 (1995). (15) WILLIAMS OBSTETRICS, supra note 12, at 289. (16) ACOG, TECHNICAL BULLETIN NO. 132 (1989), replaced by NO. 207 (1995). (17) WILLIAMS OBSTETRICS, supra note 12, at 298. (18) ALBERTO LACOIUS-PETRUCCELLI, PERINATAL ASPHYXIA 119 (1986). (19) ACOG, TECHNICAL BULLETIN NO. 132 (1989). (20) MATERNAL-FETAL MEDICINE: PRINCIPLES AND PRACTICE 305 (Robert K. Creasy & Robert Resnik eds., 1984). (21) H.B. KREBS, Intrapartum Fetal Heart Monitoring, 133 AM. J. OBSTETRICS & GYNECOLOGY 752 (1979). (22) ROGER K. FREEMAN ET AL., FETAL HEART RATE MONITORING 75 (2d ed. 1991). (23) JOHN W. CRAWFORD, RISKS OF LABOUR 22 (1985). (24) M.L. GIMOVSKY, Diagnosis and Management of Hypoxic Fetal Heart Rate Patterns, 9 CLINICAL-PERINATOLOGY 313 (1982). (25) STANLEY S. SCHWARTZ & NORMAN D. TUCKER, HANDLING BIRTH TRAUMA CASES 182-83 (1985). (26) ACOG, TECHNICAL BULLETIN NO. 44 (1977), replaced by NOS. 132 and 207 (1995). (27) ACOG, PRECIS IV: AN UPDATE IN OBSTETRICS AND GYNECOLOGY 148 (1990). (28) ACOG, TECHNICAL BULLETIN NO. 42 (1976), replaced by NOS. 107 and 188 (1995). (29) ACOG, TECHNICAL BULLETIN NO. 44 (1977), replaced by NOS. 132 and 207 (1995). (30) ACOG, TECHNICAL BULLETIN NO. 127 (1989), replaced by NO. 216 (1995). (31) ACOG, TECHNICAL BULLETIN NO. 163 (1992). (32) MICHAEL D. VOLK & MELVIN D. MORGAN, HANDLING OBSTETRIC AND NEONATAL CASES (1986). (33) Id. at 64. (34) Carl V. Smith et al., Fetal Death Following Antepartum Fetal Heart Rate Testing: A Review of 65 Cases, 70 OBSTETRICS & GYNECOLOGY 18 (1987).

Lon Walters is an associate with Miller & Marske in Kansas City, Missouri. James P. Frickleton is a partner with Bartimus, Kavanaugh, Frickleton & Presley in Kansas City, Missouri. Sandra Hull, R.N., assisted with the article.
COPYRIGHT 1996 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:Anatomy of an Injury
Author:Frickleton, James P.
Date:Sep 1, 1996
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