I Overrode the Physician Expert’s Opinion and Helped Settle a Multimillion-Dollar Case*
by Becky Mungai, RN, BA, CLNC
I seriously could write a book about this case. I met the attorney of this memorable case at a legal seminar. I was asked to review the medical records and fetal monitoring strips of a baby who was severely brain injured. An OB/GYN expert reviewed the records and found no deviations to the standard of care (SOC) by the physician or the labor nurses. It was the OB/GYN’s opinion that the fetal monitoring strips showed no distress.
We never would have gotten here without you. It was because of you that we won this case.
The attorney, a very accomplished medical malpractice attorney, was then led to believe that the cause of the baby’s injuries was a negligent resuscitation after delivery, with a “0” Apgar score as “proof.”
The attorney hired me on this legal nurse consultant job to review the records with a focus on resuscitation. After reviewing the records, my opinion was that there were significant hyperstimulation and hypertonus causing a brain compression injury to the baby during labor. I developed a 50-page chronology that detailed every aspect of the labor and delivery, complete with a section that compared and contrasted the documented interpretation of the FMS to mine. I addressed the SOC for nurses and physicians for staffing guidelines, Pitocin®, intrauterine pressure catheters and amnioinfusion. The hospital had gone against its own protocols in the use of Pitocin® and amnioinfusion. Because the heart beat of the baby showed no “sentinel event” and did not look “ominous,” the original OB/GYN who reviewed the case missed the six hours of hyperstimulus and hypertonus of 50 mmHg. The nurses continued the amnioinfusion and increased the Pitocin®despite the ominous contraction pattern which are both deviations from the SOC and against hospital policy.
The attorney reviewed my interpretation of the case and when we met again, she greeted me with “Okay, I get it! I’m filing this case”, and that was the beginning of one of the best cases of her career. It became as satisfying for her as it was for me.
I was able to secure top medical experts – one of whom she had contacted before on another case but who said he was too busy. When I contacted him he said, “As long as you’ve determined it’s a viable case, I’ll review it”. This wasn’t the first time an expert had agreed to take on a case for me when they had said no to the attorney.
In addition to providing the chronology, educating the attorney and finding several expert witnesses, I flew to Houston to meet the attorney in a labor suite and operating room to teach her about all of the equipment used on the mother i.e., IUPC, fetal monitor, IVs, cardiac monitor, pulse oximeter, O2, etc., during labor and delivery and the resuscitation of the newborn.
The defense had their usual arguments explaining why the injuries couldn’t have happened during labor – infection causation, prenatal causation, no sentinel event. The defense also tried a Motion in Limine to prevent the theory of hyperstimulus and hypertonus causing a compression brain injury during labor. All to no avail.
Because of the detailed chronology and up-front, early and thorough education provided to the attorney, the case actually settled prior to any disclosure of expert reports or expert depositions – which is unheard of in brain-injured baby cases.
The impact on my financial status is immeasurable and this attorney-client has referred me to other attorneys. I would not make any changes to the way I prepared this case. My advice to other Certified Legal Nurse Consultants is to follow your instincts about what you think will help your attorney-clients the most.
My mission statement as a CLNC® consultant is to make medicine safer for all. This baby, while injured, will have his life care plan fully funded and will have the most satisfying life possible because of my involvement. My attorney-client continually expresses her gratitude saying: “We never would have gotten here without you. It was because of you that we won this case.”
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