$2.1M Verdict: Animated Malpractice in Birth InjurySteve Shapiro, Esq., and Angela McGraw, Esq., Shapiro Winthers & McGraw, PC, Denver, CO
When a pregnant woman entered a hospital in respiratory distress from an asthma attack and pneumonia, she needed an endotracheal tube inserted to secure her airway and restore her breathing. After two failed intubation attempts by the defendant Pulmonologist, an ER doctor completed the intubation. Hours later, the defendant determined from an X-ray that the tube was dislodged. Her next decision would start the patient down a grueling path of prolonged oxygen deprivation and unsettling negligence.
Instead of re-intubating the patient - or doing anything to ensure its correct placement - the defendant ordered to have the tube advanced 5 centimeters. And instead of the endotracheal tube being advanced into the patient's trachea to pump oxygen into her lungs, it was advanced down the patient's esophagus where it would force air into her stomach.
Steve Shapiro, Esq., and Angela McGraw, Esq., needed to show jurors the emotionally vivid chapters of dithering negligence that would unfold over the next two hours, which would ultimately result in the wrongful death of the mother, and severe brain damage for her now-seven-year-old son.
After settling for an undisclosed amount over the mother's death, the following visuals helped return a $2.1M verdict for her son, which is expected to exceed $3M after interest.
Someone Do Something About My Breathing
Minutes after the tube was advanced down the patient's esophagus, the oxygen saturation in her blood dropped from 100 percent to a dangerous 82 percent.
Somebody do something about my breathing.
The Patient, According to the Defendant
Despite the dramatic drop in oxygen saturation, an increase in pressures on the ventilator, and gurgling sounds coming from the patient's mouth - the Pulmonologist neglected to re-intubate the patient, or confirm the location of the tube. Had the defendant followed proper procedure to identify her mistake, this problem could have been immediately and safely rectified.
Instead, the defendant attempted an unnecessary, time-consuming suction method meant for clearing an obstruction in the tube. Her team saw no improvement.
Concerned The Tube Was Not In The Right Place
The patient's oxygen saturation remained at levels non-conducive to the baby’s life for an entire hour before the defendant made another attempt to save the patient - again disregarding whether the tube was in the correct location. This time she tried replacing the tube by sliding a new one in place of the original using a tube exchanger.
This unnecessary procedure did nothing to address the fact that the tube was pumping oxygen into her stomach at an alarming rate - further increasing ventilatory pressures and prolonging her persistent hypoxia.
Following the tube change and noting a significantly distended abdomen [the Defendant Pulmonologist] aspirated the tube without significant improvement and noted she was concerned the tube was not in the right place.
Entry from the Defendant's Medical Record
After replacing the tube, the patient’s blood saturation began dropping again to 79 percent and then 68 percent. The defendant made one more irrelevant adjustment to the tube before attention would shift urgently to the baby.
Something Wrong With The Baby
As the patient’s blood oxygen saturation continued to drop, so did her baby’s heart rate - from a baseline of 120 bpm to the 90’s, the 60’s, the 40’s and finally into undetectable levels. One nurse recalled in her deposition, "We could neither see a heartbeat or hear a heartbeat."
It was at least a half hour after the ET Tube was advanced 5 cm that the nurse said there was something wrong with the baby.
Testimony from Respiratory Therapist
With his mother cut off from oxygen, her baby's brain was also deprived of oxygen. Brain cells would begin dying off in a mechanism of injury called "fetal hypoxia." The animation below showed jurors what fetal hypoxia looks like.
Oxygen Was Going Into The GI Tract
The infant's condition had collapsed so catastrophically, he required delivery via emergent crash C-section - eight weeks before his due date. The full reality hit as the OBGYN doctors began cutting into the patient.
Her abdomen was so bloated, the doctor needed to cut through muscles to access her abdominal cavity, which was not normal. Medical staff reported hearing air escape the patient's rectum with each squeeze of the Ambu bag. Her intestines were described by the general surgeon as looking like “balloons used to make balloon animals.”
The defendant finally realized what she had done.
The ET tube was in the esophagus and not the trachea. The anesthesia doctor was continuously manually bagging the patient and as she would squeeze on the bag, air would come out of the patient's rectum. All of this oxygen was going into the GI tract.
Deposition from ER Doctor on Staff
Medical providers removed the old tube, replaced it, and positioned it correctly down the trachea. Saturation returned to 100 percent. However, the hours her brain suffered without adequate oxygen would prevent her from living without life support. She was removed from life support nine days later.
Animating Cellular Evidence
Microscopic slide's of the baby's tissue would later prove the baby's oxygen deprivation permeated much longer than the minutes before and after birth, and with much more intensity than the Defense was willing to admit. But conveying this level of intensity to a jury would be difficult with just words. Animation was needed to show on a cellular level what this evidence meant and why it was important.
To summarize the animation: red blood cells form in the liver, but before they become red blood cells (RBC’s), they start out as nucleated red blood cells (NRBC’s). Each immature NRBC contains a dark nucleus.
Normally, the dark nucleus leaves the cell before the cell enters the bloodstream as an RBC. However, under extreme circumstances - such as oxygen deprivation - the body pushes the underdeveloped NRBC’s into circulation prematurely in a desperate effort to survive.
The dark spots on the microscopic pathology slide above are nucleated red blood cells (NRBC's) that this infant body prematurely forced into circulation in response to prolonged oxygen deprivation. They paint a dark picture of damages that deteriorated over a long period time, emphasizing the egregious negligence that directly injured this young boy for life.
90 Minutes of Missed Opportunity
What was the doctor doing for more than an hour and a half, from 11:00 pm to 12:33 am, as her patient and her baby were obviously dying of oxygen deprivation? The timeline below illustrates massive gaps of inaction and dithering between the few irrelevant attempts the defendant made to rectify the rapidly deteriorating situation.
Giant gaps of time filled with inactivity beg jurors to ask important questions that lead to their own obvious conclusions of neglect.
Right Versus Wrong Pathways
What the defendant did do in that two hours was make five bad decisions that resulted in dangerously prolonged oxygen deprivation for the mother and her infant. This Pathways Chart breaks down where and how this death and brain injury could have been avoided.
Had the defendant simply followed proper procedure and checked whether the placement of the tube was correct, she would have known to re-intubate the patient, which would have likely saved the mother and her baby.
Instead, the defendant advanced the tube into the stomach; waited hours on unnecessary suction methods and irrelevant X-rays; switched the tube in-and-out in the exact same location; and wasted hours of precious time while inflating her patient's intestines with air.
Digistrip Translates Infant Desperation
What was happening inside the womb this entire time?
The only communication an infant has with the outside world is a heartbeat. Hospitals monitor this heartbeat, and the results are printed out on a physical strip of paper called a Fetal Monitoring Strip.
The DigiStrip is a custom product we built to present these Fetal Monitoring Strips in an interactive application that enables attorneys to make custom annotations, bookmark important points, and highlight enormous gaps in negligence.
This case was fought long and hard by many lawyers at our firm over the past 6-7 years. We wish to thank and recognize High Impact for all the innovative and important animations and exhibits that were created for this case. And for all the last minute and late night hours that were spent revising exhibits after motion battles that fought right down to the commas, periods, and fonts of these exhibits. We will continue to create animations and other important exhibits as technology advances and options for explaining our cases to juries continue to increase.
Steve Shapiro, Esq., Shapiro, Winthers & McGraw, PC, Denver, CO