Disha Mookherjee was in her first pregnancy at age 30. She was seeing the defendant, OB/Gyn physician Elizabeth Nye, M.D., for her prenatal care. Disha was also a physician — a cardiology fellow at Rush University Medical Center. Because Dr. Nye had concerns regarding low amniotic fluid and abnormally slow fetal growth, Dr. Nye referred Disha to a specialist in maternal/fetal medicine. That doctor recommended induction of labor at 39 weeks gestation.
Dr. Nye followed this recommendation and at 39 weeks, Disha was admitted to Rush for induction on May 5, 2008.
Labor progressed slowly until it was complete. Disha began pushing at 4:45 p.m. on May 6, 2008. At 5:30 p.m., Dr. Nye used a vacuum extraction device in an attempt to facilitate delivery. There were three “pop-offs” (sudden detachment of the vacuum device from the baby’s head).
At trial, Dr. Nye testified that she recommended C-section delivery because she did not think the baby could be delivered vaginally. Disha, her husband and two other family members who were present, testified that Dr. Nye never raised C-section as an option in the place of a vaginal delivery.
All the experts in the case agreed that the fetal monitor strips showed no signs of distress at 5:30 p.m. Dr. Nye charted the patient’s response to her recommendation as “the patient and her husband are adamant about vaginal delivery and do not want a Cesarean section.”
Dr. Nye maintained that she informed Disha as to what she was charting regarding the need to consider C-section. Disha testified that she only wanted to do what was best for the baby and she never refused a C-section. The obstetric nurse testified that the mother repeatedly delayed the process and chose not to consent to the C-section because she kept insisting the baby was so close to being delivered vaginally.
Disha eventually did consent to a C-section at 7:45 p.m. after another failed vacuum extraction attempt. Dr. Nye did not order the C-section on an emergency basis despite the development of tachycardia. After having first recommended the C-section at 5:35 p.m., the baby was born at 9:29 p.m. Immediate resuscitation was required with a full code lasting over 20 minutes.
The newborn baby was found to be anemic having lost nearly 1/3 of her blood volume. She was diagnosed with bleeding between the skull and scalp from ruptured veins. All of the experts in the case agreed that the bleeding was likely caused by the vacuum extraction device.
After delivery, the baby was transferred to Northwestern Memorial Hospital where she was diagnosed with hypoxic ischemic encephalopathy and disseminated intravascular coagulation. Complicating matters further, the baby suffered a myocardial infarction on day 3 of life. Afterwards, the baby was found to have no electrical brain activity and was eventually removed from life support. The baby died 5 days after birth.
The family of the child contended that Dr. Nye should have insisted on a C-section because that was the only course under the standard of care. It was further alleged that Dr. Nye failed to fully inform the mother (Disha) of the risks/benefits and alternatives to the use of the vacuum extraction method of delivery. It was also maintained that had Disha known of the risk of bleeding to the baby, she would have not agreed to the vacuum extraction procedure.The lack of perfusion to the fetus ultimately was a leading cause of death.
An autopsy was performed by a perinatal pathologist who found marked heart muscle damage that had not been previously diagnosed while the baby was alive. A follow-up consultation with a neuropathologist revealed global brain damage, but no eosinophils in the brain. The eosinophils are white blood cells present to combat an infection. The plaintiff’s expert pathologist testified that the eosinophils were present because of the efforts in resuscitating the child. None of the other treating neonatologists or other experts has ever made this kind of finding in a neonate.
The defendant argued at trial that Dr. Nye gave the appropriate advice, recommendations and ordered the appropriate urgent, but not emergent C-section in accordance with the standard of care. The defendant also maintained that eosinophilia was the proximate cause of the baby’s death.
Before trial, the plaintiff’s demand to settle was $1 million. There was no offer to settle the case.
The jury answered “no” to the special interrogatory: “Was Dr. Elizabeth Nye professionally negligent in the management of the labor and delivery?”
Kreisman Law Offices has been handling birth injury cases and medical malpractice matters for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Evanston, Skokie, Rosemont, Chicago (Albany Park), Palos Park, Calumet City, Blue Island, Inverness, Lansing and Tinley Park, Ill.
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