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Jury sides with plaintiff in cerebral palsy case

By: WISCONSIN LAW JOURNAL STAFF//August 20, 2012//

Jury sides with plaintiff in cerebral palsy case

By: WISCONSIN LAW JOURNAL STAFF//August 20, 2012//

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This was a first pregnancy.

The mother, Carlyne Karschney, elected to use the services of a nurse midwife at the local clinic because there were no female physicians. The only doctors at the clinic and, for that matter, the hospital were family practitioners because there were no obstetricians on staff.

It was acknowledged that the mother kept all pre-natal care appointments and showed no signs of any problem or abnormality throughout the pregnancy.

An induction was started with Cytotec on July 27 in the morning. By noon, contractions became regular, and Karschney was admitted to the hospital in active labor at 2 p.m. at 6 centimeters dilation.

Thereafter, there were three arrests of dilation and a failure to dilate for two hours. The nurse midwife first tried a water tub to stimulate contractions and, when that did not succeed, initiated Pitocin to augment the contractions.

While Pitocin was appropriate, the nurse midwife authorized increasing dosages far beyond what is normally recommended. The goal of Pitocin is normally to have contractions every two to three minutes lasting 40 to 60 seconds. In this case, contractions were occurring every minute to minute-and-a-half.

The nurse midwife disagreed with medical records indicating they were strong contractions. She argued that when she palpated Karschney, the contractions were not strong enough. She therefore authorized the increases in Pitocin.

This appears to have been a defense created at the time of trial because every nursing note and nurse midwife progress note indicated they were strong contractions.

If Karschney had followed a normal labor curve, she would have been fully dilated by 6 p.m. and delivered between 7 p.m. and 8 p.m. She did not reach full dilation until 10:38 p.m.

Pitocin continued to run, and, at about midnight, the electronic fetal monitor showed a very abnormal heart rate pattern. There were, according to the nurse and nurse midwife, consistent accelerations with virtually every contraction. All of the defendants and experts agreed accelerations are unusual with contractions in the second stage.

The nurse midwife, however, let this pattern continue. At 1:26 a.m., after Karschney had already been in the second stage of labor, fully dilated and pushing for nearly three hours, the nurse midwife elected to take Karschney off the electronic fetal monitor and put her back in the water birthing tub to deliver the baby.

The nursing staff then had to monitor the fetus by auscultation. The nurse’s notes indicated a reasonable fetal heart rate of approximately 150 to 160 during this time.

But when the infant, Chace, was born she had a heart rate of about 80, was not breathing and was blue in color. Apgar scores were assigned as 1, 3, 3, 5. A blood gas was obtained with a pH of 7.165.

Thereafter, the attending family practitioner was called in and arrived within approximately 20 minutes, at almost 2:30 a.m. on July 28. Chace was resuscitated, intubated and immediately transferred to Gunderson Lutheran Hospital in La Crosse.

There she was noted to be significantly acidotic. A CT scan taken at approximately 56 hours of life was read as normal. Likewise, an MRI taken at approximately nine months of life was also read as normal.

It was uncontested that Chace actually suffered a significant brain injury from an acute near total hypoxic/ischemic injury. She has cerebral palsy, walks with the aid of a walker, and has both upper and lower extremity impairment with significant cognitive deficit.

Plaintiffs contended the Pitocin was used in excess of appropriate levels and should have been stopped. They contended the family physician should have been called and there should have been either a cesarean section or an operative vaginal delivery.

Plaintiffs further contended the initial blood gas that was drawn was actually a venous gas, not an arterial, and did not truly reflect the child’s metabolic state. The MRI was re-read by plaintiffs’ pediatric neuroradiologist, who noted significant hypoxic ischemic injury.

Plaintiffs further contended the fetal heart rate after midnight was clearly nonreassuring and was probably maternal heart rate rather than fetal.

Defendants contended it was absolutely appropriate to continue Pitocin because while the contractions were strong, they were “not strong enough to deliver a baby.” They therefore argued for continuing to raise Pitocin to deliver the baby.

They further contended the fetal monitor strip was reassuring because there were accelerations even up to the end, and the baseline was within the normal range with variability. They denied the fetal heart rate, as shown on the monitor, was probably maternal.

They further argued the auscultation of fetal heart rate for the final 40 minutes showed the baby’s heart rate was always normal.

Their explanation, however, could not explain why the baby was born with a bradycardic heart rate of only 80 beats per minute. They further contended the acute hypoxic insult had occurred prior to the mother entering the hospital and that the baby’s injury did not result from anything that occurred during labor and delivery.

Defendants’ neonatologist denied there was significant acidosis and argued the initial blood gas was truly arterial because that was the nurse midwife’s intention. The nurse midwife had testified, however, that she rarely drew blood gases and, while she knew she wanted to get arterial, she could not be sure which vessel she sampled.

Defendants also used Dr. Robert Zimmerman, a pediatric neuroradiologist, who claimed that because the initial CT scan was read as normal by both the original radiologist and himself, an acute near total event had not occurred during the time frames alleged. He indicated that had an acute near total event occurred, at some point immediately before birth, there would have been edema visualized on the CT scan.

Since there was no edema, defendants argued, the injury could not have occurred at birth. Plaintiffs contended that with an acute near total there is quite often no edema.

This was even more interesting because in Zimmerman’s deposition two years before trial, he had not been able to time the injury other than to say it was sometime after the 34th week of gestation and up to 60 days post date. He subsequently modified his opinion only two weeks before trial, contending the negative CT scan eliminated birth as the time when injury could have occurred.

Plaintiffs’ life care planner indicated Chace Karschney would never work and would need 24-hour-a-day supervision throughout her life. He also said she has a normal life expectancy.

Defendants’ vocational rehabilitation expert claimed Chace would be able to work a normal job, although she could not identify any specific job.

The jury awarded $1 million for loss of future earnings, $9.5 million for future care and $3 million for pain, suffering and disability. The jury also awarded the mother $100,000 for her loss of consortium. The parties also stipulated to past medical bills of approximately $110,000.

Personal injury/negligence

VERDICT: $13.7 million

Case name: Chace Karschney, et al. v. Sharon L. Jolivette, R.N., C.N.M., et al.

Case number: 06CV0066

Court: Monroe County Circuit Court

Judge: J. David Rice

Injuries claimed: Cerebral palsy

Original amount sought: No demand

Original offer: No offer

Special damages: The jury awarded $1 million for loss of future
earnings, $9.5 million for future care and $3 million for pain suffering
and disability. The jury also awarded the mother $100,000 for her loss
of consortium.

Date of incident: July 28, 2001

Trial dates: May 21 through June 8

Plaintiffs’ attorney: Jeffrey Goldberg of Jeffrey M. Goldberg Law Offices, Chicago

Defendants’ attorneys: David McFarlane of Bell, Moore, & Richter SC, Madison, for Sharon Jolivette and Gundersen Clinic Professional Liability Insurance Plan; Terri Weber of Nash Spindler Grimstad & McCracken LLP, Manitowoc, for Injured Patients’ and Families’ Compensation Fund; Barrett Corneille and Robert Ebbe, Corneille Law Group LLC, Madison, for Tomah Memorial Hospital and Ohio Hospital Insurance Co.

Insurance carriers: Gundersen Clinic Professional Liability Insurance Plan, Ohio Hospital Insurance Co. and Injured Patients’ and Families’ Compensation Fund

Plaintiffs’ expert witnesses: Dr. May D’Alton, a maternal fetal specialist; Carolyn Gegor; Dr. Stephen Glass, a pediatric neurologist; Dr. Gordon Sze, a pediatric neuroradiologist; Dr. Gary Yarkony, a physiatrist; and Charles Linke, an economist

Defendants’ expert witnesses: Defendants disclosed 13 experts but elected not to call several at trial. They called Dr. Julian Parer, a maternal fetal specialist; Dr. Robert DeMott, an obstetrician/gynecologist; Dr. Richard Colan, a pediatric neurologist; Dr. Steven Ringer, a neonatologist; Dr. Robert Zimmerman, a pediatric neuroradiologist; Jacquelyn Wenkman, a vocational expert; Ann Lovegrove, a life care planner; and David Jones, an economist

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