Facts

The plaintiff's mother, then age 39, elected to undergo an elective c-section for the delivery of her first child. Board-certified OB/GYN, Morris Ahdoot, had, by all accounts, handled the mother's pregnancy, which was complicated by advanced maternal age, pregnancy-induced hypertension and diabetes, appropriately and well within the standard of care. According to the mother, she decided to have the elective c-section because Dr. Ahdoot told her she had a narrow pelvis and she would have difficulty delivery the baby vaginally. She wanted to avoid all instruments at delivery, such as forceps and vacuum extractors to prevent injury to her baby.

According to Dr. Ahdoot, the mother desired an elective c-section from the outset of her care because she was afraid of a vaginal delivery and the pain that would be involved, and the possibility her baby's head would be injured coming through the pelvis and birth canal.

According to all the experts at trial, the decision to have an elective c-section under either version was appropriate and right of the patient to elect. The day before the surgery, the plaintiff's mother and father met with the defendant for the pre-operative examination and final discussion regarding consent. The parents claimed the defendant was specifically told that the mother was choosing the c-section to avoid any injury to her baby, and more specifically, that the defendant was not to use any forceps or vacuum during the delivery. They claimed that the defendant said "Don't worry, I never use them."

The defendant denied any such conversation took place during this visit or any visit. He claimed he advised the mother, per his custom and practice, on her first prenatal visit that he does not use forceps, but that he does use a vacuum as needed to assist in deliveries, and if a patient refuses to allow him to use a vacuum, he refers them to another doctor.

The c-section was performed at Tenet-owned hospital, Irvine Regional Medical Center on Nov. 21, 2003. Dr. Ahdoot was assisted by another OB/GYN and a neonatologist and nursery nurses were in attendance, along with labor and delivery nurses. The c-section was performed within a typical period of time, with typical blood loss. A vacuum (MityVac) was used by defendant to deliver the baby's head. Fundal pressure was also used to help deliver the baby. The labor nurse recorded two applications of the vacuum, with one "pop off." The defendant recorded one application of the vacuum, with no pop-off and easy delivery of the baby.

The neonatologist, Dr. Amlie, examined the baby and found no problems, assigning Apgar scores of 9 at 1 minute and 9 at five minutes, which according to all the experts, was about as good a score any newborn can receive. No injury, bruising or swelling of the head was noted. The nursery nurses then cleaned and assessed the baby, again finding no abnormalities of the head, but noting a bruise on the newborn's chest and right hip.

All experts agreed the bruising was abnormal for a c-section delivery in a non-laboring scenario. The newborn appeared healthy and normal for many hours. The parents testified the baby became fussy, would not breastfeed and appeared pale and cold, approximately six to seven hours after birth, and reported this to the nurses. Ultimately, the baby was transferred to the Neonatal Intensive Care Unit at approximately 15 hours of age and the neonatologist was called in. Intracranial hemorrhaging and disseminated coagulopathy were diagnosed and blood products immediately administered. After being stabilized, the baby was transferred to CHOC, where massive subgaleal and intracranial bleeds were diagnosed. The baby had suffered an infarction, resulting in severe brain damage. Approximately 75 percent of the baby's brain was destroyed, although he survived and, at age four and a half, is permanently and severely disabled with a normal life expectancy.

The evidence was that the bleeding probably was initiated by the use of the vacuum. The FDA had issued an advisory in 1998 to all hospitals, OB/GYN's and nurseries that subgaleal bleeds and intracranial hemorrhages had been associated with the use of vacuums, could be delayed in their symptomatic presentation for many hours after birth, and extreme caution in the use of the vacuum and post-delivery observation of the newborn was mandated. Dr. Ahdoot "forgot" he used the vacuum when he dictated his operative note two hours later, and the labor nurse forgot to indicate on the labor and delivery record that went in the baby's chart that a vacuum was used.

The mother contended that Dr. Ahdoot did not answer her when she asked if he used a vacuum, a conversation that defendant denied occurred. Dr. Ahdoot later amended his dictated operative note on the 24th by hand and again on the 25th by dictation to reflect the use of the vacuum and what he believed to have been the pressure used (40 mercury, per his custom). The labor nurse amended the mother's chart and L&D record to reflect the use of the vacuum on the 22nd and on the 24th. Her notes reflected two higher pressure settings, although still technically in the "green zone," and fundal pressure during the use of the vacuum.

PLAINTIFFS' CONTENTIONS:
The plaintiffs' OB/GYN expert, Barry Schifrin contended there was no indication for the use of the vacuum at all and that the uterine incision was inadequate to deliver the baby and should have been extended laterally or upward, and the use of a vacuum would not have been necessary. He further contended the failure to reflect the use of a vacuum in the dictated note potentially compromised the care of the baby. He further noted that this was a complicated delivery and not "gentle" as reflected in Dr. Ahdoot's handwritten notes.

Finally, if the patient had mentioned any concern at all about the use of a vacuum to assist the delivery at c-section, such disclosure and discussion about the possibility of its use (perhaps a 10 percent chance) and the complications associated with it should have been made in order for the patient to make an informed consent about labor and delivery versus an elective cesarean. It should be noted that the plaintiff's expert was selected by the FDA in 1999 to head the study about the use of vacuums and prevalence of complications and their causes, in the wake of the 1998 advisory.

DEFENDANT'S CONTENTIONS:
The defendant's OB/GYN expert, Michael Nageotte testified that there was no evidence of an inadequate uterine incision and the use of the vacuum was appropriate, whether with one application or two applications with a pop-off. Further, it was not the standard of care in 2003 or even now for obstetricians to discuss the possible use of a vacuum with patients considering an elective c-section instead of labor and delivery.

Finally, if the patient did tell Dr. Ahdoot not to use a vacuum, Dr. Ahdoot should have discussed that, and noted that, and taken whatever steps he deemed necessary before agreeing to do the surgery.

The defendant further contended that while the vacuum might have initiated bleeding below the scalp, which probably happens to some degree every time a vacuum is used, the bleeding stops in 99.99 percent of the babies without any problems, and that the bruising on the chest and hip were certainly not secondary to the vacuum and were probably evidence of a Factor VII polymorphism that prevented the bleeding from clotting and resolving at the time.

Finally, by way of causation defense, the plaintiff's own neurology specialist testified that had the neonatologist been called even an hour earlier, in all medical probability there would have been no brain damage, even if the vacuum caused the initial bleeding.

Settlement Discussions

The plaintiff demanded policy limits in 2006. No further specific demands, but contended an "open policy" existed. The defendant offered $1 million policy limits in July 2008, with an earlier C.C.P. section 998 offer of $250,000.

Damages

The plaintiff blackboarded $1,033,539 in future lost earnings, plus a range of $5.8 million to $7.1 million (PCV) in future healthcare needs, as well as $250,000 for household modifications. No specific sum for non-economic damages was given. The defendant blackboarded $1.1 million in loss of earnings of $1.375 million to $2.55 million in future healthcare costs (PCV).

Injuries

The plaintiff will require custodial care 24/7 for the rest of his life. He will probably never speak or walk, but may learn to sit up unassisted. He is blind, but can hear, and loves music and his mother's voice. He was a beautiful baby at birth and is a beautiful child at age four and a half.

Result

Defense as to Dr. Morris Ahdoot, M.D. The hospital settled out while trailing for January 2008 trial date for the sum of $3.5 million.

Other Information

FILING DATE: May 20, 2004.

Deliberation

one day

Poll

11-1

Length

seven weeks