Failure to Diagnose Fetal Distress resulting in Cerebral Palsy

The Vesco Case

The treating OB/GYN ordered fetal monitoring in the 17th week of the mother’s first pregnancy (full term would be 40 weeks). The test showed that the fetus’ heart beat was “flat” meaning that the baby was in distress. The OB/GYN took no action to confirm the fetal distress, treat the fetal distress or prepare the mother and fetus for delivery as soon as the baby would have been viable (22-24 weeks). The mother went into pre-term labor due to fetal distress and delivered the baby prematurely due to distress. Baby Boy Vesco was born with brain damage and severe cerebral palsy caused by both the injury in the womb and the unforecast preterm delivery. Minor Plaintiff will be wheel-chair bound for his entire life, requires assistance for feeding, toileting and dressing, attends special schools and rehabilitation daily, and will require life-time care.

In defending the case the OB/GYN testified that he did not order the 17-week fetal test for distress or for any other medically accepted reason but merely to reassure the anxious first-time mother that the baby’s heart was beating. Evidence uncovered during discovery, however, revealed that when he submitted the 17-week fetal testing to the insurance carrier for reimbursement he had claimed that the testing was justified by fetal distress. This resulted in a conflict for the OB/GYN because he either: (1) tested for fetal distress, found it, and was negligent for not doing something about it; or (2) committed insurance fraud by ordering an unnecessary test, and was then negligent for not doing something about the test when the result was abnormal.

The case was tried before a jury for one week and settled when Plaintiff rested his case. The 7-figure settlement was paid into a court-supervised trust to pay Minor Plaintiff’s special needs, life-time nursing and expenses related to his severe cerebral palsy.