Understanding the Medical Record in Shoulder Dystocia Cases: Why These Cases Sometimes Should Have a No-Fault Recovery

• Author: Paul A. Race
• Position: M.D., J.D., a 1997 graduate of Duke University School of Law is a former obstetrician/gynecology who practiced medical malpractice and tort law
• Pages: 593-620

UNDERSTANDING THE MEDICAL RECORD IN

SHOULDER DYSTOCIA CASES: WHY THESE CASES

SOMETIMES SHOULD HAVE A NO-FAULT RECOVERY

PAUL A. RACE*

ABSTRACT

Shoulder dystocia is one of the most common causes of litigation in

obstetrics and gynecology. The most common serious complication from

shoulder dystocia is brachial plexus although death of the baby can also

occur. Brachial plexus injuries lead to paralysis of the arm of the neonate.

While most of the injuries eventually resolve, a small percentage will

remain permanent. This article explores the areas of litigation involved

with brachial plexus injuries. It discusses what the attorney should look

for in the medical record. It also looks at the controversial concept of

traction as an etiology of brachial plexus injury. Finally, it discusses an

alternative method for compensating those that have an injury when the

litigation model is flawed.

I. INTRODUCTION

While some have argued that litigation in most cases results from poor

outcomes and not from malpractice,1 others, including trial lawyers and

advocacy groups, consider malpractice lawsuits as the only way to protect

the individual against unsafe products and practices.2 Consider the

following.

Labor was slowed but not unusual. The patient, thirty-years old, in her

first delivery, had gained thirty-five pounds and was mildly obese prior to

becoming pregnant. The estimated fetal weight one week before delivery

was eight and one-half to nine pounds. The first stage of labor lasted

sixteen hours, and with the nur se‘s help, the patient spent one and one-half

hours pushing. The head began to crown (meaning the top of the head

Copyright © 2011, Paul A. Race.

* Paul Race, M.D., J.D., a 1997 graduate of Duke University School of Law is a former

obstetrician/gynecology who practiced medical malpractice and tort law. Currently, Dr.

Race is an Assistant Professor of Law and Medicine at So uthern University Law Center

where he teaches Torts, Health Law, and Constitutional Law.

1 Anna Mavroforou et al., Physicians’ Liability in Obstetric and Gynecology Practice,

24 MED. & L. 2 (2005).

2 See John Bratt, Sending a Message “the Man” Will Understand, BALTIMORE INJURY

LAWYER BLOG (Apr. 14, 2010), http://www.baltimoreinjurylawyerblog.com/2010/04/.

594 CAPITAL UNIVERSITY LAW REVIEW [39:593

could be seen with each push) revealing wispy black hair. The fetal heart

rate dropped with each contraction, called compression decelerations.3

These events were normal and nonthreatening for this stage of labor.4

With a final push, the baby‘s head extended out with the face down and the

back of the head pointing up towards the pubic ceiling. Even as it

emerged, the head began to rotate to the side, also normal for labor.5

Then it happened. The head retracted against its mother. The cheeks

puckered out. The infant‘s lips closed tightly, and the chin became flush

against the perineum. Immediately, the physician knew what was

occurring. He could visualize the left shoulder pinned against the

promontory of the lower portion of the spine while the right shoulder was

stuck behind the pubic bone. The physician knew that this was an

emergency. Soon the infant would stop receiving blood flow from the

mother. Even though the head was out, compression of the baby‘s chest in

the canal prevented breathing. Now what?

The occurrence of shoulder dystocia during childbirth presents the

obstetrician with an immediate medical crisis.6 His actions may relate

directly or indirectly to a malpractice suit if a brachial plexus injury is

found after delivery.7 No matter how excellent the care an obstetrician

provides, he may have good reason to worry about medical liability in a

future lawsuit. For years, physicians have recognized that perfect care can

still lead to injury.8 Even if the physician is unsuccessful in a given

procedure, it does not mean that liability should or will ensue.9 The

medical community generally accepts that, although rare, permanent

brachial plexus injuries can occur in utero.10 However, some in the legal

community believe that there is little scientific support for this theory,

3 F. GARY CUNNINGHAM ET AL., WILLIAMS OBSTETRICS 340 (McGraw Hill, 21st ed.

2001) (1930).

4 Id.

5 See id. at 318–19.

6 See James Warren Sever, Obstetric Para lysis: Its Etiology, Pa thology, Clinical

Aspects a nd Trea tment, with a Report of Four Hundred and Seventy Cases, 12 AM. J.

DISEASES CHILD. 541, 541–42 (1916).

7 See Henry M. Lerner, Shoulder Dystocia: What Is the Legal Standar d of Ca re?, 18

OBG MGMT. 56, 56 (2006).

8 See id.

9 See Lu Ann Treviño, The Health Care Qua lity Improvement Act: Sword or Shield?, 22

T. MARSHALL L. REV. 315, 318 (1997).

10 See Shoulder Dystocia, ACOG PRAC. BULL., Nov. 2002, at 1045, 1046.