Malpractice defense: Fetal Descent Stalled, with Variable Decelerations

In addition to my consulting work and writing the Health Business Blog, I’m chairman of the board of Advanced Practice Strategies (APS), a medical risk management firm that provides litigation support for malpractice defense and an eLearning curriculum focused on enhancing patient safety.Traditionally APS has targeted its education programs to physicians and nurses. However, APS has now introduced a Continuing Legal Education (CLE) series as well.

To learn more contact: Timothy Croke, Director of Demonstrative Evidence Group. or 617-357-0553 ext.6664.

Here’s the Advanced Practice Strategies case of the month.

Judgment for the Defense

Fetal Descent Stalled,

with Variable Decelerations

The patient was a 26-year-old primigravida (in first pregnancy) who presented to the hospital with uterine contractions at 36-4/7 weeks’ gestation.  She was admitted to the hospital at about 5:50 p.m. for management of preterm labor.  Her prenatal course previously had been uncomplicated.

Given the fetus’s advanced gestational age, the decision was made to allow the patient to deliver.  She was given epidural anesthesia at about 10:00 a.m. the next morning, at which time her cervix was 6 cm dilated and -2 station (refers to fetal descent relative to the maternal ischial spines and ranges from -3 to +3).  The labor was felt to be progressing slowly, due to the posterior position of the fetal head.  The fetal heart rate appeared normal, showing no evidence for concern about fetal oxygenation.

At 1:30 p.m., the patient’s clinicians documented in the chart that, on exam, she was felt to have a small pelvis with a narrow arch.  The patient’s labor progressed poorly, and at 3:00 p.m. her cervical exam was unchanged, despite oxytocin (Pitocin) augmentation for the previous hour.  Artificial rupture of membranes with clear fluid was performed soon thereafter, and the fetus responded appropriately to fetal scalp stimulation, indicating adequate fetal oxygenation at that time.

At 5:45 p.m., the patient entered the second stage of labor and was fully dilated at 0 station.  The fetal heart rate was normal, with occasional variable decelerations with quick recovery (see patient’s fetal strips).

At approximately 6:00 p.m., the patient indicated she was feeling rectal pressure and the urge to push.  At the time, the fetal heart rate baseline was 145 beats per minute (bpm).  With pushing, the patient had a fetal heart rate deceleration to 70 bpm for about 5 minutes, which did eventually return to baseline (see patient’s fetal strips).   The fetal head was still in the posterior position; the midwife caring for the patient discussed the care plan with the consulting physician, and the decision was made to wait and allow the fetal head to descend.

The physician reexamined the patient about 2 hours later and again noted an appropriate response to fetal scalp stimulation. The fetus, though, had yet to descend, remaining at 0 station on exam, and a fetal scalp electrode was placed to follow the fetal heart rate tracing more carefully.

Over the next hour, the fetal head failed to descend. Intermittent fetal heart rate variable decelerations were seen, but the tracing overall was not felt to be concerning.  At 8:15 p.m., the decision was made to perform a cesarean delivery for arrest of descent.  The fetal heart rate continued to be monitored, and intermittent fetal heart rate variable decelerations (see patient’s strips) were again noted, which improved with maternal position change and additional oxygen by mask.

During the cesarean delivery, the fetal head was deep in the maternal pelvis in the LOP position.  The attending obstetrician performing the procedure indicated the need to “shoehorn” the fetus, using a single blade of the forceps to effect delivery.

At 9:55 p.m., a viable male infant was delivered with Apgars of 5, 7, and 9 at 1, 5, and 10 minutes, respectively.  The infant was transferred to NICU, and, shortly after arrival, started to suffer repetitive seizures over the next 48 hours.  CT imaging studies documented a fetal brain hemorrhage at birth and at 6 months, which resolved at 3 years.


The plaintiffs’ experts reviewed the fetal heart rate tracings and felt that after the long deceleration at 6:00 p.m., the baseline variability (a sign of fetal oxygenation) had declined, going from moderate to minimal and ultimately absent.  They also described evidence of severe variable decelerations and a fetal bradycardia (decline in the fetal heart rate under 120 bpm) between the time it was decided to perform the cesarean and when the actual procedure started.  They claimed the nurses and midwife failed to recognize evidence of fetal compromise or failed to communicate these findings properly to the obstetrician, who thus did not expedite the procedure.  In addition, plaintiffs’ experts claimed the patient was taken off the fetal monitor 30 minutes before a cesarean was performed, despite signs the fetus’s oxygen status was of concern.  At delivery, the infant showed a poor respiratory effort, was limp and blue, and underwent aggressive resuscitation, with heart rate first obtained at 30 seconds of life.  At two minutes of life, he was intubated and remained on the ventilator in NICU for 30 hours.

The plaintiffs indicated the boy continues to receive medical care for his condition, including neurological follow-up, speech therapy for developmental delays, and physical therapy, as well as hippotherapy, a specialized combined form of physical, occupational, and speech therapy.

The plaintiffs claimed the nurse and nurse-midwife defendants acted negligently in rendering obstetric care to the mother, resulting in severe injuries to her fetus, including hypoxic-ischemic encephalopathy, perinatal asphyxia/depression, brain damage, metabolic acidosis, seizures, and developmental delays.


The defense argued that throughout the delivery the fetal heart rate was closely monitored by the nurses and midwife and that the fetal heart rate variable decelerations and bradycardia were noted and attended to appropriately and in a timely fashion .   The defense experts commented that fetal heart rate tracings with patterns of variable decelerations do not usually pose an imminent threat to fetal oxygenation and so can be followed, rather than requiring immediate action.

Also, throughout the labor, the delivery nurses and midwife kept the consulting obstetrician apprised of the patient’s progress and of the fetal heart rate status.  Several interventions were taken to evaluate whether the fetus was doing well, including fetal scalp stimulation and the placement of a fetal scalp electrode.  All the defense experts were in agreement that the fetal heart rate variability showed evidence of adequate fetal oxygenation throughout and that appropriate actions were taken to deliver the infant promptly via cesarean.

The defense asserted that the post-delivery seizures resulted from a mechanical injury at the moment of delivery (when the fetus was “shoehorned”) and were not caused by a hypoxic event.



APS worked with the defense attorneys and experts to develop a visual strategy that would help explain to the jury how clinicians interpreted the different fetal heart rate patterns and that would also illustrate the subsequent brain injury suffered by the infant in this case.

We began by putting together the fetal heart monitoring tracings in digital format.

Illustrations were used to show the differences in fetal heart rate beat-to-beat variability on a fetal tracing.

We created illustrations to show the left occiput posterior (LOP) position of the fetus’s head. This was important in explaining how this position, combined with the anatomy of the female pelvis, can cause a woman’s labor to become obstructed.

We illustrated the fetal brain injury, and experts used the radiology films to show the injury right after birth and also over a 3-year post-delivery period.  The goal was to show that the injury was minimal and had resolved itself over time.

We also worked with the defense attorney to create a timeline illustrating events during delivery.

This combination of illustrations helped the defense successfully explain the following:

  • The fetal heart rate tracings did not show evidence of fetal oxygenation issues during the labor.
  • The injury, although unfortunate, was minimal and resolved over time.
  • The nurses, midwife, and obstetricians worked within the standard of care and responded accurately and appropriately throughout the patient’s entire labor.
  • CT imaging studies demonstrated a focal brain hemorrhage at birth and at 6 months, which resolved by 3 years post-delivery.


The jury found in favor of the defense.

“The jury returned a verdict for both defendants in relatively short order.  The visual aids were essential in allowing the defendant nurses, who were not comfortable in talking with the jury, to focus on the strips—and not events in isolation but in comparison to what was occurring both before and after the specific event.  The expert walked through the real time strip as it unfolded, enlarged on a big screen, and was untouchable.  Superb work in creating visuals that really assisted in explaining how the nurses cared for this patient. “

—Attorney, Edward Hinchey, Sloane & Walsh, Boston, MA

June 25, 2010

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