Neonatal injury occurred in all 61 cases. Erb’s palsy was the overwhelming pediatric outcome (57 of 61 cases, or 93.4%), with an aggregate indemnity payment of $17.6 million. Fractured humerus was the outcome in 1 case, and 3 cases involved neonatal deaths.
Reasons for indemnity payments included:
- probable liability (18 defendants),
- plaintiff was sympathetic, likely to evoke an emotional response from the jury (8 defendants),
- clear liability (7 defendants),
- defendant would not have made a strong witness in his or her own defense (5 defendants),
- defendant had died or was too ill to stand trial (3 defendants),
- medical record had been altered (2 defendants),
- case was considered too inflammatory to risk a jury award (2 defendants), and
- policy limits were too low to risk a potentially high jury award (1 defendant).
Five defendants were involved in cases with multiple medicolegal issues that argued for settlement.
The effect of birth weight. Notably, 74% of infants involved in these cases were macrosomic (birth weight over 4,000 g). Except for neonatal injury (100%), no single maternal or fetal variable appears with greater frequency.
The mean indemnity in closed cases increased in direct proportion to fetal weight, ranging from $500,000 in cases involving infants whose birth weight was less than 4,000 g to $950,000 when the birth weight was 5,000 g or more.
Maternal factors seen with greatest frequency included obesity, excessive weight gain in pregnancy, and gestational diabetes. Analysis of prepregnant body mass index found that 19 women had a weight within the “obese” category, 18 of whom gave birth to macrosomic infants. Eight of these cases closed without indemnity payment and 10 closed with an aggregate indemnity payment of $6.5 million.
Forty-eight of the 61 plaintiffs (78.8%) exceeded the normal weight gain in pregnancy based on height and prepregnant weight. Twenty-nine of these cases closed with an aggregate indemnity payment of $16.6 million.
Influence of diabetes. Fifty-two of 61 plaintiffs underwent a glucose screening test. Of these, 23 went on to have a glucose tolerance test, with 12 testing positive for gestational diabetes. Further analysis revealed borderline screening glucose values in an additional 16 cases. These women were not considered diabetic by their obstetricians, were not retested for diabetes, and did not receive nutritional counseling. Macrosomic infants were born to 9 of the 12 patients with gestational diabetes and to 13 of the 16 borderline cases.
Of 28 cases with confirmed or suspected gestational diabetes, 14 women delivered infants weighing over 4,250 g; 11 of the 14 weighed more than 4,500 g.
In a comparison of cases involving diabetic and nondiabetic women who delivered infants weighing more than 4,250 g, 82% of the cases involving nondiabetic women closed without payment. Among cases involving diabetes (actual or borderline), the corresponding figure was 27.3%.
Labor and delivery interventions were cited in all cases. Oxytocin was used in 42 of the 61 cases (68.9%), forceps in 9 (14.8%), and vacuum extraction in 7 (11.5%). Suprapubic pressure was used in 37 cases (60.7%), fundal pressure in 9 (14.8%), and traction on the fetal head in 16 cases (26.2%).
In addition, defense experts determined that the McRoberts maneuver was used in 41 cases (67.2%) and the Wood’s corkscrew maneuver in 28 (45.9%).
Seven cases involved a second stage of labor exceeding 2.5 hours. The ratio of wins to losses decreased substantially with the use of oxytocin, forceps, fundal pressure, or a prolonged second stage.
Data were analyzed using selected variables thought to have an association with winning or losing cases and with indemnity (TABLE 2). No statistically significant models emerged. This is likely due to inadequate power (low number of cases) and the large number of interactions between variables relative to the outcomes evaluated.
TABLE 1
Plaintiff demographics
| CHARACTERISTIC | ALL CASES (n = 61) | CASES WITH INDEMNITY (n = 35) |
|---|---|---|
| Mean age, in years (range) | 28 (17–40) | 29 (18–38) |
| Race (%) | ||
| White | 35 (57) | 21 (60) |
| Black | 12 (20) | 7 (20) |
| Hispanic | 11 (18) | 6 (17) |
| Asian | 1 (2) | — |
| Unknown | 2 (3) | 1 (3) |
| Parity (%) | ||
| 0 | 19 (31) | 11 (31) |
| 1 | 26 (43) | 16 (46) |
| 2 | 11 (18) | 7 (20) |
| 3 | 2 (3) | 1 (3) |
| 4 | 2 (3) | — |
| 5 | 1 (2) | — |
TABLE 2
Litigation outcomes for selected prenatal and intrapartum variables
| CHARACTERISTIC | CLOSED WITHOUT INDEMNITY | CLOSED WITHOUT INDEMNITY PAYMENT | MEAN INDEMNITY ($) | TOTAL INDEMNITY ($) |
|---|---|---|---|---|
| Prenatal factors | ||||
| Gestational diabetes | 5 | 7 | 413,300 | 2,893,000 |
| Adjusted diabetes | 10 | 18 | 521,400 | 9,386,000 |
| Obesity | 8 | 13 | 651,300 | 8,466,000 |
| Intrapartum factors | ||||
| Prolonged second stage | 1 | 6 | 707,700 | 4,247,000 |
| Oxytocin induction | 2 | 10 | 406,500 | 4,065,300 |
| Oxytocin augmentation | 15 | 15 | 737,000 | 11,100,000 |
| Forceps delivery | 1 | 8 | 552,100 | 4,416,800 |
| Vacuum extraction | 3 | 4 | 531,300 | 2,125,000 |
| Episiotomy | 20 | 30 | 579,400 | 17,382,100 |
| McRoberts maneuver | 20 | 21 | 542,900 | 11,400,300 |
| Wood’s corkscrew maneuver | 12 | 16 | 652,300 | 10,436,200 |
| Suprapubic pressure | 17 | 20 | 629,000 | 12,579,400 |
| Traction to fetal head | 7 | 9 | 665,500 | 5,989,500 |
| Fundal pressure | 4 | 7 | 660,700 | 4,625,000 |
4 factors raise risk of litigation
After reviewing the literature and analyzing the ProMutual data, we concluded that shoulder dystocia remains largely unpredictable. However, certain clinical factors are clearly associated with an increased risk for litigation:
- prenatal factors,
- labor and delivery interventions,
- maneuvers performed at the time of the dystocia, and
- fetal outcomes.
Prenatal factors. The most significant prenatal factors were maternal obesity, excessive weight gain in pregnancy, and, especially, diabetes and fetal macrosomia.