Dr. Fagel obtained a verdict of $8.75 million on behalf of a child who received significant brain injuries during the birth process after medical staff failed to properly respond to fetal distress. The plaintiff’s mother was admitted to the hospital at 37 weeks gestation for induction of labor due to mild pre-eclampsia. After 22 hours on Pitocin, the midwife considered possible failure to progress and called the OB to see the patient. After the OB increased the Pitocin, the mother was noted to have a fever and fetal heart rate slowly increased- hospital staff presumed the fetal heart rate increase was due to the mother’s high temperature. When the mother began to push, there was a prolonged deceleration in fetal heart rate and another OB, Dr. Dorough, saw the patient while the on-call OB was called to come in. With a variety of treatments, the unborn plaintiff’s heart rate returned to normal and Dr. Dorough thought the emergency had passed. When the on-call doctor arrived, the fetus’s heart rate had increased with decreased variability and he decided to have the patient push. After more than an hour of pushing without success, the OB attempted to deliver the baby with vacuum assist. With each use of the vacuum, fetal monitors showed dangerously low heart decelerations. The baby was finally delivered via vacuum after 20 minutes, with no pulse, absence of breathing and appearing blue. After being stabilized, the baby received an echocardiogram showing a congenital heart defect and a CT scan showing brain atrophy and other permanent injuries. As a result of the problems during his birth process, the plaintiff now has severe brain damage and requires 24 hour care.

The defendants contended that the hospital staff were not negligent in their actions and that the OB’s management plan indeed worked because vacuum delivery was successfully performed. They also argued that the hospital nurses and midwife were justified in relying on the obstetrician’s judgment to proceed with vaginal delivery via vacuum. Finally, the defendants argued that the plaintiff’s congenital heart defect increased the probability of other congenital deformities, meaning that the plaintiff’s brain was likely damaged before the mother first entered the hospital.

However, Fagel attorneys proved that the plaintiff’s injuries were in fact avoidable and that the hospital staff was negligent for failing to provide adequate care for a baby in fetal distress. Dr. Fagel successfully argued that the nurses and midwife were negligent for not using their own judgment when the fetus was clearly in distress and failing to ask for an OB to deliver the baby as soon as possible. Had the baby been delivered 30 minutes earlier, he would not have suffered the profound asphyxia that was the leading cause of his brain injuries. Of the $8.75 million in damages, approximately $7.85 million was awarded to cover past and future medical expenses, $250,000 was awarded for the plaintiff’s general damages and $600,000 was awarded to compensate for the parents’ emotional distress claims.