Gross and colleagues11 found that the Ob/Gyns with the most defensible cases paid close attention to the patient’s history and prenatal course and, upon encountering dystocia, implemented at least 2 maneuvers (if necessary) and thoroughly documented their actions immediately after delivery.
Fetterman15 agreed, asserting that what counts in court is not so much whether the obstetrician employed the McRoberts maneuver before or after the Wood’s corkscrew maneuver but whether he or she had an action plan in mind, implemented that plan properly, and thoroughly documented the actions taken and the reasons underlying them.
Dissecting legal cases for clues to reduced risk
In the review of medicolegal cases for this article, we limited our search to cases closed between Jan 1, 1995, and Dec 31, 2002, using a computer to search for codes specific to shoulder dystocia as well as the phrases “shoulder dystocia,” “Erb’s palsy,” and “brachial plexus injury.” We identified 61 cases involving 117 defendants and created a data sheet to gather information on patient and physician demographics, medical and obstetric history, description of the incident, analysis rendered by defense and plaintiff experts, and legal and financial outcomes.
Of 117 defendants, 76 were obstetricians. There also were 16 hospitals, 15 corporations, 5 certified nurse-midwives, 1 family physician, 1 emergency physician, and 3 persons categorized as “other.” Age, race, and parity of the 61 plaintiffs are given in TABLE 1.
Twenty-six of the 61 cases, involving 74 defendants, closed with no payment. That is, they were either dismissed or closed with a jury verdict for the defense. The remaining 35 cases involved 43 defendants and were closed with an aggregate indemnity payment of $19.2 million. The mean payment was $445,000 per defendant.
Practice recommendations for reducing the medicolegal risk of shoulder dystocia
These guidelines are recommended to help prevent, predict, and manage shoulder dystocia and brachial plexus injury.
Obtain a prenatal history that includes the birth weights of both parents and any history of prior shoulder dystocia or cesarean delivery performed for “failure to progress.”
Estimate the fetal weight and take into account the risk for shoulder dystocia when the fetus is determined by ultrasound to be macrosomic.
Perform glucose testing on all patients, and follow up on even a single abnormal glucose reading. Discuss the possibility of shoulder dystocia and the accompanying risk of neonatal injury with “at risk” patients.
Consider obtaining informed consent for vaginal delivery of a patient with risk factors for shoulder dystocia.
Consider cesarean delivery for :
- nondiabetic women when the estimated fetal weight (EFW) exceeds 4,500 g,
- diabetic gravidas when the EFW exceeds 4,000 g,
- women with a prior delivery complicated by shoulder dystocia or brachial plexus palsy,
- gravidas with a prolonged second stage and nonprogression of labor, and
- patients who express fear and doubt about vaginal delivery.
Be sparing with the use of oxytocin when the fetus is known or suspected to be macrosomic, taking special care not to be aggressive with induction.
Use forceps or vacuum extraction with caution, and limit the number of attempts with each.
Minimize traction on the fetal head. Traction that is deemed to be “excessive” may be used against the physician in a liability suit. Gentle traction is acceptable.
Do not use or order fundal pressure. It will almost invariably be used against you in a lawsuit.
Be able to define and correctly describe maneuvers generally accepted as the standard for shoulder dystocia and, when necessary, use and document them appropriately. These include the McRoberts, Wood’s corkscrew, Rubin, and Zavanelli maneuvers; extended episiotomy; suprapubic pressure; and fracture of the anterior clavicle.
Be alert to the possibility of brachial plexus injury in the absence of shoulder dystocia. Obstetricians have been erroneously accused of causing brachial plexus injury by plaintiff attorneys who do not understand that this injury is not always the result of dystocia. Thorough contemporaneous documentation is key in these instances.
Request immediate pediatric assessment of a newborn involved in shoulder dystocia. Have the placenta sent for examination, and request cord blood gases.
Communicate openly and honestly with the parents of a child who has suffered a brachial plexus injury. This may be the single greatest tool for reducing the risk of liability litigation.
Consider serial electromyelograms during the first 7 days of life for a neonate with a brachial plexus palsy. These studies can help determine the etiology of the injury.
Use a shoulder dystocia documentation tool such as the one on page 91. Thorough documentation of all relevant prenatal and intrapartum events is critical to a successful defense. A 12-point detailed delivery note as recommended by Fetterman will also prevent or reduce legal risk.15
Schedule shoulder dystocia “drills” in the labor and delivery unit to familiarize obstetric team members with their roles.
Require comanagement of any midwifery patient at increased risk for shoulder dystocia.