Diken v. Camino Medical Group, et al.

Dr. Fagel obtained a verdict of $1,950,000 on the behalf of a young girl who now suffers from cerebral palsy and developmental delays as a result of hypoxic brain damage that she sustained during labor and delivery. Eleven days prior to delivery, Dr. Grolle, a defendant physician employed by the defendant medical group, found that the fetus was in transverse position, which is an undeliverable position. However, no ultrasound or further tests were ordered until the mother was admitted to the hospital for labor. At 38 weeks gestation, the mother was admitted to the hospital for labor. Dr. Inouye, another defendant physician employed by the defendant medical group, was the on-call obstetrician and arrived at 6:15 p.m.  He ordered Pitocin augmentation and ordered for a fetal scalp electrode (FSE) to be placed at 10:10 p.m. At this time, a nurse documented that the fetus was in a deliverable position (vertex), when the fetus was actually transverse. After the FSE was placed, moderate fetal heart decelerations became apparent, which is most often caused by compression of the umbilical cord. Dr. Inouye was then called back in and arrived at 12:13 a.m. He viewed the fetal heart tracings, but did not perform a vaginal examination to check the fetus’ position or write any orders. Dr. Inouye left yet again, and the fetal tracing continued to worsen. A nurse performed a vaginal examination and discovered that the fetus was in a breech position and called Dr. Inouye back in. Defendant Inouye confirmed the breech and then ordered a C-section at 1:17 a.m.

While the operating team prepared for surgery, the fetal heart rate continued to dramatically rise, but Dr. Inouye did nothing to relieve the fetal distress. Furthermore, he did not order the C-section as an emergency. The mother eventually arrived at the operating room at 1:40 a.m., but Dr. Inouye was not present because he left to dictate the mother’s History & Physical. Dr. Inouye returned to the OR at 1:46 a.m., but had done nothing to prepare himself for surgery so he had to leave the OR to scrub his hands. Once he returned to the OR, in spite of the obvious fetal distress, Dr. Inouye chose to have the anesthesiologist increase the epidural instead of performing a rapid sequence induction of anesthesia, which would have allowed for surgery to begin within one minute vs. three to four minutes. The baby was finally delivered at 1:56 a.m. She had critically low vital signs and required bag mask ventilation and intubation.

The baby suffered seizures in the neonatal intensive care unit and was later diagnosed with hypoxic-ischemic brain damage and athetoid and dystonic cerebral palsy. Her speech and fine motor skills are now so permanently limited that she will not be able to obtain competitive employment and will require attendant care for the remainder of her life. 70% of her language is unintelligible, she has never been able to keep up at school and she requires a wheelchair to go out in the community.

Dr. Fagel argued and proved that the plaintiff’s permanent injuries were both predictable and preventable, and that the defendants had multiple opportunities to intervene. Eleven days before delivery, defendant Grolle determined that the fetus was in transverse position, but never ordered a follow-up ultrasound or took any precautions. In addition, defendant Inouye delayed the delivery process on multiple occasions and ignored the clear warning signs of fetal intolerance to labor. Although the fetal heart rate continually worsened, Dr. Inouye did not order a C-section until he realized the baby was in breech position. He continued to delay delivery by not ordering an emergency C-section and instead going to dictate a History & Physical. Finally, Dr. Inouye had to leave the OR to scrub because he was not prepared, and when he finally returned he ordered that the epidural be increased instead of ordering a rapid induction of anesthesia, the fastest method. All in all, Dr. Inouye’s numerous delays were a clear and substantial cause of the child’s brain injuries.