Hospitals: $20.6M award could spur C-sections

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The number of unnecessary and expensive cesarean sections could skyrocket if Maryland‘s top court upholds a $20.6 million award against a health care facility for failing to perform the surgical procedure on a woman who later gave birth to a child with cerebral palsy, the Maryland Hospital Association said in papers filed with the Court of Appeals.

The threat of multimillion-dollar liability could also force hospitals to take another tack and refrain from delivering babies, especially in rural and urban areas that already have a shortage of obstetrical services, MHA stated.

The association urged the high court to hear MedStar Harbor Hospital’s appeal and overturn the Court of Special Appeals’ decision affirming the award.

“If allowed to stand, [that decision] would essentially compel Maryland obstetricians to perform C-sections for all premature babies or prepare to pay $20 million if the child has a brain injury,” MHA stated in its filing. “When physicians and patients weigh the risks and benefits of natural childbirth and surgical deliveries, judges and insurers should not have their thumbs on the scale.”

But attorney Wayne M. Willoughby, who represents patients in medical-malpractice cases, said the MHA’s position is “Henny Penny all over again,” with the association seeking changes in Maryland law to provide greater liability protection for hospitals and doctors.

“Every time the legislative session nears, you’ll hear the hospitals and others exclaiming, ‘The sky is falling, the sky is falling,’” said Willoughby, of Gershon, Willoughby, Getz & Smith LLC in Baltimore. “Hospitals should put more effort into patient’s safety and less effort into trying to immunize health care providers from being held accountable on the occasions they are negligent.”

The MHA submitted its comments as the high court considers whether to hear Harbor Hospital’s appeal of the Court of Special Appeals’ decision affirming the verdict in favor of Jaylan Norfleet and his parents, Shantiah and Joel Norfleet. Willoughby is not involved in the litigation.

The Court of Special Appeals held in September that Baltimore City Circuit Court jurors validly concluded the obstetrician’s failure to perform a prompt C-section during a risky pregnancy caused Jaylan’s cerebral palsy.

But the MHA, in its high-court filing, said the risks the mother experienced during pregnancy – an irregular fetal heart rate and compression of the umbilical cord — are “not unusual” during labor and merely indicate that delivery is imminent.

The Court of Special Appeals’ decision is “tantamount to holding that brain injuries are foreseeable in any natural childbirth for a premature baby where the tracings are less than perfect, which makes doctors presumptively liable if they do not perform a C-section,” attorney Jennifer T. Fox wrote on the MHA’s behalf.

“This will compel them to perform C-sections that are neither medically indicated nor wanted by the mother. By treating the inevitable stress of labor and delivery as warning signs of fetal distress that require Cesarean sections for premature babies, the Court of Special Appeals unwittingly takes the scalpel out of the obstetrician’s hands and places it in the hands of a judge,” she continued.

If upheld, the Court of Special Appeals’ decision could compel hospitals to close their maternity wards due to the liability exposure, MHA stated in its filing, which was formally a “petition for leave” to submit its views as a friend of the court.

“[T]he economic impact of the increased legal pressure to perform expensive Cesarean sections, when not medically indicated or desired, along with recently spiking jury awards, threatens Marylanders’ access to obstetrical services,” wrote Fox, of Blades & Rosenfeld P.A. in Baltimore. “By driving up the costs of both the liability for the delivery and the delivery itself — without facilitating any actual improvements in medical care — [the decision] creates real pressure on the hospital system to consolidate birthing services and pressures physicians to stop performing deliveries in jurisdictions favored by plaintiffs’ lawyers.”

Shantiah Norfleet was admitted into Harbor Hospital on Sept. 6, 2002, when she was 32 weeks pregnant.

On average, a pregnancy lasts 40 weeks. However, both Norfleet and the baby had high blood pressure, a condition dangerous for mother and child alike. Thus, the doctor decided to induce labor, according to court documents.

While Norfleet was in labor, a fetal heart rate monitor showed the baby was low on oxygen, according to the lawsuit.

At trial, the family’s experts testified that Jaylan’s low oxygen levels called for a prompt C-section delivery. But Dr. Kathleen Ward decided to let labor continue three more hours, the plaintiffs alleged.

When Jaylan was born, the umbilical cord was wrapped around his neck and he was deprived of oxygen, the experts added. Jaylan developed spastic diplegic cerebral palsy, in which he is not mentally impaired but has difficulty moving his legs and arms and will always use a wheelchair, the experts said.

But the hospital’s experts testified that vital signs taken after delivery indicated Jaylan had not been deprived of oxygen. The experts called it nearly impossible for the jelly-like umbilical cord to have compressed Jaylan’s carotid arteries and jugular vein; in fact, they argued such a result would be so “novel and extraordinary” it could not have been foreseen by an obstetrician.

After the jury found for the family on July 31, 2012, the hospital moved for judgment notwithstanding the verdict.

The hospital argued that as a matter of law the jury could not have found a causal relationship between Jaylan’s delivery and his cerebral palsy.

Circuit Judge John Philip Miller rejected the motion and the Court of Special Appeals agreed.

“Running through [the hospital’s] causation in fact contentions is the suggestion that the evidence presented by their expert witnesses was so overwhelming that the court erred by letting the matter go to the jury,” the appellate court held in its unreported opinion. “The argument is misplaced. As in any case the jurors were entitled to believe all, some, or none of either expert’s opinions.”

The hospital then sought review by the Court of Appeals. The high court has not stated when it will consider the hospital’s request.

The case is Harbor Hospital Inc. v. Norfleet, docketed at the Court of Appeals as No. 535, September Term 2014.