Protocols might have helped move conflict up chain of command, and improved monitoring.

Guest Commentator

  • David Acker, MD; Brigham and Women's Hospital; Boston, MA


The following case abstract is based on closed claims in the Harvard system. Some details have been changed to protect identities.

A 21-year-old female presented to the emergency department about an hour after a spontaneous rupture of membranes at 39 weeks. She was evaluated in the Labor and Delivery unit by the nurse midwife on-call and sent home with the advice to return when her contractions were closer together.

About two hours later, the patient returned to Labor and Delivery and was re-evaluated by the same obstetrical provider. The patient's cervix was 1 cm dilated, 90% effaced, and the fetal head at -1 station. The fetus was evaluated with electronic fetal heart monitor (EFM) for 13 minutes. The nurse midwife sent her home early in the afternoon with instructions to return if her contractions did not increase by 7:00 p.m.

The patient returned by wheelchair to L&D at 6:45 p.m., grunting and bearing down. Her cervix was 9 cm dilated, 100% effaced and fetal head at +1 station. EFM revealed a fetal heart tracing with marked variability in the baseline heart rate, fluctuating between 120-180, and notable for repeated decelerations to 90 bpm. The patient labored for about two more hours before delivery occurred, during which time there were persistent, recurrent deep variable decelerations to 80-90bpm.

The nurse midwife delivered a baby boy at 9:01 p.m. with Apgars of 1 at one minute and 3 at five minutes. The baby was transferred to a tertiary care facility where he experienced seizure activity. A brain MRI confirmed findings consistent with hypoxic-ischemic encephalopathy. The baby developed additional symptoms of profound, permanent neurological deficits, including blindness and a severe seizure disorder. The patient's parents sued the nurse midwife and two Labor and Delivery nurses alleging that mismanagement of labor and delivery and the aftermath led to profound neurologic defects of the baby. The legal defense was compromised by the loss of the EFM strips, and the case was settled against the nurse midwife for more than $1 million.

To discuss the risk management and patient safety aspects of this case, Dr. David Acker joins us now. Dr. Acker is Chief of Obstetrics at Brigham and Women's Hospital in Boston.

  • Q.

    Dr. Acker, thank you for joining us.


    It's a pleasure.


    Where do we first start to see problems in this case?


    A variety of questions comes to mind. First, in whatever community hospital this is, is there a policy that clearly states what fetal heart rate abnormalities mandate consultation with a physician? Second, in whichever community hospital this is, has there been adequate and recurring educational processes so that people can recognize "repeated decelerations to 90 beats per minute," etc. Third, is there a backup for the midwives in the hospital?


    So let me interrupt there. When we talk about those kind of communication and collaboration issues, what are we looking for in sort of an ideal setup, including if there had been nurses or anyone else who did recognize those problems, activating a chain of command?


    Okay, well you bring up actually two different problems. Let's take an easy one first. It's the situation where everyone is actually in agreement that something is wrong and something should be done. Well, all of those policies and protocols need to be put in place by the leadership of the midwifery program, the leadership of the obstetrics program, and the leadership of the administrative program that is devoted to maternal and child health. So there is a regularly reviewed physician midwife guidelines and policies, and they are aimed primarily at patient safety, not pride in being a midwife or autonomy of the physician to stay home as long as possible.

    Human beings being human beings, there is not always going to be agreement, and there needs to be a corollary policy that deals with discord. And discord means discord amongst any person who is on the labor and delivery floor. That person could be the most junior nurse, and her opinion counts on an equal level with the most senior midwife or physician. The team must be concordant or the discordant policy needs to be operationalized and things move up the chain of command.


    Let's talk about the fetal monitoring strips. They ended up being an issue in the defensibility of the case.


    They end up as far as I'm concerned being an issue for two reasons. Let's take the least controversial. So turning to the current clinical guidelines for obstetric providers, page 5, Institutional Responsibility. "Each institution shall accommodate for preserving all electronic fetal monitoring tracing with special consideration and allocation of resources to assure permanent and secure preservation of fetal monitor tracings for all babies born with a 5 minute Apgar score of 4 or less." In my experience in medical/legal situations in Massachusetts, the statement that I have heard made in court by the judge is chilling because my impression is most of the time these things are lost just due to carelessness. However, that's not what the judge tells the jury. The judge specifically tells the jury that if they lost it, you can assume that would be the proof that they were negligent.

    The second issue with the fetal monitor interpretation is obviously made difficult for me because I don't have the fetal monitor to look it, but nonetheless, looking at the description of the tracing, one could conclude it is definitely not a normal tracing. And if there were appropriate guidelines, the guidelines would state that this is the type of fetal monitor tracing for which consultation is necessary.

    So either there is no guideline in this hospital and they should have it or there is a guideline and it's been violated. Then you just leave this up to the individual hospital and the professional discipline within the system. Or in my experience a very common problem, which I can call the ‘one more push' attitude. All the professionals know something wrong is going on, but they feel for whatever reason one more push and the baby will be delivered, and so people encourage the patient to push and the baby is not delivered with the next push. So then people say it's just one more push.

    As amazing as this is, people can keep on saying this for a half hour to 45 minutes, always thinking the next push will be the delivery. That is a trap that I have seen good people get into and for which I don't have an immediate solution. It's almost human nature and we have to devise systems that counteract human nature.

    So the monitor tracings' absence dooms the whole thing. The controversy—and there must have been controversy in interpreting and consulting—almost dooms it, and in the end sadly we're not talking about a case that is doomed, we're talking about a baby who is doomed and that's what makes this really tragic.


    Thank you, Dr. David Acker, Chief of Obstetrics at Brigham & Women's Hospital in Boston. For Resource, I'm Tom Augello.

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