Foreseeability of risk is a complex legal principle. The injury or harm a person may suffer from malpractice must be likely to occur, as well as likely to occur to a person who is owed a duty. In tort negligence lawsuits, foreseeability refers to whether a person could or should have reasonably foreseen the harms that resulted from their actions. If resulting harms were not foreseeable, a defendant physician or midwife might be able to successfully prove that they were not liable. Foreseeability is a legal concept in personal injury law that determines proximate cause following an accident.1

Foreseeability inquires about the likelihood that a person could have anticipated the potential or actual results of their actions, such as the plan of care and the actual care provided. In malpractice/tort law, the ‘reasonable person’ standard asks if an ordinary person in the same or similar circumstances would have reasonably acted in the same way. Even if a defendant could not have foreseen the scale of the resulting harm, they might still be found liable if a harm of that type was foreseeable.2

The concept of foreseeability of harm was first coined by Supreme Court Justice Benjamin Cardozo in 1916. It is entrenched in our legal system and serves as a roadmap for all obstetrical malpractice litigation. This concept, which is drilled into every law student in America, has its roots in the case of MacPherson v Buick Motor Company. Judge Cardozo wrote that “because the danger is to be foreseen, a liability will follow.”.3

An example of the application of this legal principle is the ordinary “stop sign case”. Stop signs are positioned to protect drivers when entering and proceeding through intersections. If two cars enter the intersection at the same time, it is foreseeable that an accident might result. Stop signs impose an obligation or a duty on drivers who enter those intersections to stop before proceeding through. If a driver fails to stop, goes through the intersection, and causes an accident, that driver can be held liable for the resulting accident.4

Applying this concept in medical-legal settings demonstrates the differences in training of doctors, midwives and lawyers. Regarding a fetal bradycardia: A midwife reflexively responds by starting the process toward cesarean section. The lawyer asks: Is this bradycardia foreseeable? Or avoidable? From an attorney standpoint, the midwife should have seen the bradycardia coming and avoided it altogether.

If an event is considered foreseeable or potentially avoidable (e.g. the presence of repetitive, severe variable decelerations followed by fetal bradycardia), the midwife or doctor is considered to be on notice. Notice means the circumstances in which the CNM had time to identify the potential for “acute fetal distress” and possessed the opportunity to prevent or correct the problem by timely intervention. The legal test becomes: “what a reasonably prudent certified nurse-midwife or doctor would do in the same or similar circumstances”. 5

To underscore the concept of notice/warning, an obvious fetal distress pattern that arises without warning departs from the concept of notice. When monitoring a FHR pattern that has a normal baseline rate and moderate variability and then suddenly decompensates without “notice” or “warning”, into a terminal bradycardia requires a different management analysis or litigation focus. The appropriate focus will be on how well the obstetric team handled the sudden emergency.6

Following is a litigation case where the foreseeability of harm principle was found to apply. Remember, as you’re reading the case, that the law evaluates conduct or what a midwife, physician, or nurse did or didn’t do “in a given circumstance”. As a reminder, a nurse’s general obligation to the patient is to identify the abnormality, attempt to mitigate it, while notifying the midwife or physician of the abnormality, and safeguarding the patient.

Brief Clinical Summary: By Expert Witness Physician.

Mrs. SOS was a 28 y/o G5P2 female, having received regular obstetrical care and experienced a normal prenatal course. She was admitted to the hospital at 37.5 weeks gestation with onset of spontaneous contractions and a cervix that was 4 cm dilated. Artificial rupture of membranes was performed, and a small amount of clear fluid was noted.

The fetal heart rate pattern from admission at 1430 to 1720 showed a baseline heart rate from 140-150 bpm with moderate variability and accelerations. More likely than not, the fetus was well oxygenated and neurologically intact during this time. Prior to admission and during the prenatal course, there were no noted issues that would compromise the health of Baby Tango. At this time, due to minimal cervical change, Pitocin was started at 1740. Dr. Unreachable performed a history and physical on the patient at 1810, about 4 hours after the patient was admitted.

The contraction pattern of Baby Tango was more than adequate prior to the initiation of Pitocin, which was not required, and potentially dangerous given the frequency of contractions and lack or rest between contractions. An epidural was started around 1730. After the CLE was in place the FHR baseline dropped to the 120’s but returned to 140-150 bpm around 1800 hrs.

At 1826, Pitocin was increased to 7mIU/min and at 1830, the baseline dropped to the 120’s. There was evidence of tachysystole revealed by 7 contractions in 9 minutes with no accelerations. The Pitocin was turned off. A sudden terminal bradycardia then began at 1835. Dr. U was in the room at 1837. At this time, the pattern was pre-terminal. At this time, an emergency crash c-section would have been the appropriate standard of practice. The FHR pattern is predictive of severe metabolic acidosis in the fetus, often resulting in brain injury and death.

Resuscitative efforts began at this point

- IV bolus, oxygen, Pit off, left lateral positioning, right lateral positioning

- Naloxone

- Ephedrine

- Terbutaline

- Ephedrine

An order was not given to move to the OR until 1853, 18 minutes after the bradycardia commenced. In the OR, Dr. U examined the patient, and she was found to be 9cm dilated. At this point, he had her begin pushing, which further decreased oxygenation to the fetus still in preterminal status. Resuscitation measures were ineffective and the terminal FHR pattern continued. At 1915, the pushing was stopped. By 1920, a sinusoidal pattern had developed. Dr. U, at this point, abandons Mrs. SOS (1935) to go to another delivery. The FHR pattern is now tachycardic with absent variability. A nurse inquires whether Dr. U requires additional MD assistance, and he says, “No, he will go to the labor room delivery”.

A nurse was concerned by the events and departure of the doctor. She tore off a piece of the strip at 1949 and 1957 to show to Dr. U. He finally called for a cesarean section at 1958, an hour and 23 minutes after the sudden bradycardia and absent variability.

2016: Delivery of viable male infant via C/S. Blood gases obtained, cord small/thin, ABGs sent to respiratory.

Apgar scores: 1 and 7

cord arterial pH 6.788 BE-20.6

cord venous pH 6.941 BE-18.4

Medical Standards for treating Obstetrician , Dr. U.

1. Avoid starting Pit as contractions were more than adequate and too frequent

2. Appropriately interpret EFM patterns (pre-terminal tracing for over an hour)

3. Diagnose tachysystole and mitigate excessive uterine activity; increase oxygen flow to the fetus

4. Recognition of sudden-onset bradycardia as an acute emergency.

5. Crash c-section after the onset of sudden bradycardia

6. Recognize signs of hypoxia and acidosis due to absent variability

7. Avoid delay in rescuing the baby after the sudden onset of bradycardia

Analysis:

It appeared from the onset of bradycardia that the physician in the case could have reasonably foreseen the harm of not immediately managing a terminal bradycardia and urgently delivering the baby. In contemplating the “reasonable person” standard, would an ordinary physician have failed to deliver what was clearly a fetus in distress? I believe most jurors would conclude the answer is “no”. Courts also consider if a person “had adequate knowledge about the specifics of their situation”. If a board-certified, university-trained obstetrician could not have foreseen the probability of a damaged fetus left undelivered, then who could?? By waiting to deliver Baby Tango, a reasonable obstetrician or midwife should know that a specific harm might occur. The potential for harm was readily apparent to everyone involved in the delivery.

One More Thing: Duty

The general rule of Duty depends on foreseeability. Where harms are foreseeable, both moral and legal notions suggest that it is proper to prevent them unless the costs or risks of doing so outweigh the costs or risks of not doing so.

The Importance of Foreseeability in NY Malpractice Cases. https://www.sullivangallesshaw.com
LII/Legal Information Institute. https://www.law.corness.edu. Wex
Utilizing causation - PMC-NCBI. nih.gov
Phelan JP. Perinatal Risk Management: Obstetric Methods to Prevent Birth Asphyxia. Jeffrey P. Phelan, MD, JD. Department of Obstetrics and Gynecology, Citrus Valley Medical Center, West Covina, CA, US
Ibid. Pg 2
Ibid. Pg. 6

https://www.midwivesontrial.com

Foreseeability Of Harm: A Tragic Clinical Summary

News Briefs: Midwifery/Obstetrical Issues and Practice