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Kuhbanani v. The Ohio State University Medical Center

Court of Claims of Ohio

March 20, 2017

NEWSHA KUHBANANI, et al. Plaintiffs

          Sent to S.C. Reporter 6/23/17

          Ellen M. McCarthy William S. Jacobson

          Julia A. Turner Mark L. Schumacher Sandra R. McIntosh Special Counsel to Attorney General

          Jeffrey L. Maloon Assistant Attorney General


          ANDERSON M. RENICK, Magistrate Judge

         {¶1} Plaintiffs, Shahram Gharibshahi, M.D. and his wife, Newsha Kuhbanani, who are the parents of plaintiff Sooshyance Gharibshahi, a minor, brought this action alleging negligence by the medical staff at defendant The Ohio State University Medical Center (OSUMC). The case proceeded to trial on the issues of liability and damages.

         {¶2} Plaintiffs' claims arise from the delivery and care provided to Sooshyance who was born on May 17, 2008 at OSUMC. During the afternoon of May 16, 2008, Newsha was admitted to OSUMC with a full-term, normal weight baby. Newsha's obstetrician, Sarah Artman, M.D., decided to induce labor and initiate fetal heart monitoring, which provided readings that, by all accounts, were not concerning prior to 1:00 a.m. on May 17, 2008. Dr. Artman was assisted by several obstetrical nurses who, among a variety of duties, observed and interpreted the fetal heart monitor. The fetal heart monitoring strips initially showed normal, moderate variability, meaning fluctuations in amplitude and frequency from the heart rate "baseline, " which is an indication that the baby was well-oxygenated. However, between 1:10 and 1:20 a.m., fetal heart rate "decelerations" were apparent, an indication of a transient interruption of the fetal oxygen supply. When meconium (fecal matter) was detected in the amniotic fluid a pediatric resuscitation team (peds team) was summoned to the delivery room. The peds team consisted of Christine Dugan (nka Adams), M.D., a third-year resident; Edward Nehus, M.D., a second-year resident; and Sheria Spain (nka Wilson) M.D., an intern. The peds team prepared in the event that the baby required resuscitation related to either late decelerations or an effort to prevent development of meconium aspiration syndrome as a result of inhaling the fluid. By 1:30 a.m., delivery was in progress and Dr. Artman had become concerned by a change in heart rate variability to minimal or absent variability, followed by recovery and a rise in heart rate. Thereafter, the fetal heart rate continued to deteriorate and by 1:40 a.m. it was low with prolonged decelerations and little variability. At 1:43 a.m., Dr. Artman removed the scalp electrode that detected fetal heart tracings so that she could begin use of a vacuum system to extract the baby. After the scalp electrode was removed, an external ultrasound device was used periodically to detect a minimal fetal heart rate in the minutes before delivery at 1:52 a.m.

         {¶3} When Sooshyance was born, he was not breathing and his heart rate was either dangerously low or non-existent. Sooshyance's condition was assessed using Apgar scores, a numerical rating system that reflects an assessment of a newborn's condition of breathing, tone, reflexes, movement, and color. The Apgar scores at 1, 5, and 10 minutes after birth were 0, 0, and 1, respectively. The members of the peds team followed an established protocol, the Neonatal Resuscitation Program (NRP), by first suctioning the airway to remove meconium and then administering oxygen with a "bag-mask" device to create positive pressure ventilation (PPV). The peds team continued use of the bag-mask and applied chest compressions for approximately three minutes. After Sooshyance did not respond, the residents performed an endotracheal intubation for ventilation. At 1:56 a.m., four minutes after delivery, Daniel Malleske, M.D., who was in his second year of a neonatology fellowship and had experience in resuscitating severely depressed neonates, arrived to assist with resuscitation. Dr. Malleske determined that Sooshyance was not adequately ventilated and he inserted a second endotracheal tube and then administered two doses of epinephrine (at 1:58 and 1:59 a.m.) to stimulate Sooshyance's heart. Approximately three minutes later, Sooshyance showed the first signs of a returning heart rate.

         {¶4} Sooshyance has been diagnosed with a significant and permanent brain injury caused by hypoxic ischemic encephalopathy (HIE) which, according to plaintiffs' pediatric neurology expert, resulted in a diagnosis of spastic quadriparesis, a type of cerebral palsy which affects all four limbs and fine motor activity. As a result, Sooshyance is fed primarily through a gastric tube in his abdomen, although he can eat some food by mouth. Sooshyance also has a significant cognitive abnormality that impedes learning, seizure disorder which is partially controlled by medication, and a significant problem with speech and language.

         {¶5} Plaintiffs contend that Sooshyance's resuscitation was delayed and that the delay was a proximate cause of his HIE. According to plaintiffs, the standard of care required an experienced resuscitator to be present prior to Sooshyance's delivery and the resuscitation team breached the standard of care by failing to timely notify Dr. Malleske of Sooshyance's grave situation. Specifically, plaintiffs maintain that either the nurses in the delivery room failed to notify the pediatric residents of Sooshyance's severely depressed heart rate, or if a nurse did communicate that there was a reasonable expectation that the baby would be born in a severely depressed state, that the peds team negligently failed to timely notify Dr. Malleske of the situation. According to plaintiffs, Sooshyance's injuries would not have occurred if Dr. Malleske had been present at the beginning of the delivery.

         {¶6} "In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things." Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976), paragraph one of the syllabus.

         {¶7} The same standard applies equally to claims that a nurse negligently caused injury to a patient. Ramage v. Central Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, (1992). "Because nurses are persons of superior knowledge and skill, nurses must employ that degree of care and skill that a nurse practitioner of ordinary care, skill and diligence should employ in like circumstances. Whether a nurse has satisfied or breached the duty of care owed to the patient is determined by the applicable standard of conduct, which is proved by expert testimony." Berdyck v. Shinde, 66 Ohio St.3d 573, syllabus (1993).

         {¶8} Plaintiffs' expert, Joseph Ouzounian M.D., is board certified in obstetrics and gynecology (OBGYN) and maternal-fetal medicine, a subspecialty related to the care of high-risk pregnancies. Dr. Ouzounian testified that the fetal heart monitor tracings showed nothing remarkable prior to 1:00 a.m. Dr. Ouzounian estimated that Sooshyance's initial fetal heart rate baseline was approximately 145 beats per minute, which he characterized as normal, and he testified that moderate variability was a favorable finding. Dr. Ouzounian related that between 1:00 and 1:10 a.m. fetal heart rate decelerations became apparent, which could have been caused by either compression of the umbilical cord or contractions of the mother's uterus. Dr. Ouzounian testified that Soohyance's fetal reserves were "fine" at 1:20 a.m. as indicated by his recovery from the decelerations with moderate variability. At 1:30 a.m., the delivery was in progress and Dr. Ouzounian noted a change in variability to minimal, with at least a short period of absent variability with a deceleration, which he testified was very common in the minutes before delivery. However, Dr. Ouzounian opined that the deceleration at this point, down to the 60s, was "concerning" and that the baby would likely "need some help" at delivery. Dr. Ouzounian opined that by 1:40 a.m. a pediatrician or nurse would have a reasonable expectation that the baby would have respiratory distress and require intubation. At 1:43 a.m., the scalp electrode was removed to effectuate delivery. Dr. Ouzounian explained that thereafter, the fetal heart rate was detected in the 60s, as recorded in nursing notes for the time just prior to delivery. Dr. Ouzounian opined that the fetal heart rate tracings indicate that "with proper resuscitation, the baby would be fine" and that "the majority of these kids do great." Dr. Ouzounian did not have any criticisms of Dr. Artman.

         {¶9} Dr. Ouzounian related that HIE is brain damage due to a hypoxic event. Dr. Ouzounian explained that acidemia, a buildup of acid in the blood, usually precedes acidosis, which involves acid buildup in the tissue. Dr. Ouzounian testified that an interruption in oxygen flow causes respiratory acidosis in the blood, the first step in a continuum which is followed by respiratory acidemia, mixed respiratory/metabolic acidosis, then metabolic acidemia, ultimately resulting in brain injury. Dr. Ouzounian explained that if an interruption of oxygenation and the development of respiratory acidosis continues, acid will begin to build up at the tissue level, leading to respiratory acidemia. Eventually, a mixed respiratory and metabolic acidosis develops as the fetus begins to use its "buffer bases" (bicarbonate) to counter the acidemia. When the buffer bases begin to become depleted, acid will build up in the blood as metabolic acidemia and oxygen deprivation eventually cause brain damage. Dr. Ouzounian opined that metabolic acidemia is a prerequisite for brain damage due to intrapartum hypoxia. According to Dr. Ouzounian, respiratory acidosis is generally not harmful to the fetus.

         {¶10} Soon after the delivery, umbilical cord gases for both the umbilical artery and umbilical vein were measured by OSUMC staff from blood that was drawn at the time of birth. Dr. Ouzounian related that the fetus gets oxygen from the mother and from the placenta. The umbilical artery contains blood coming from the baby to the placenta and the vein contains blood from the placenta to baby. Dr. Ouzounian testified that, conceptually, blood gases from the umbilical artery reflect the fetal status. Dr. Ouzounian explained that the blood gases that were measured included pH, a measure of acidity; PCO2, or carbon dioxide, which reflects respiratory status inasmuch as carbon dioxide increases as breathing decreases; PO2 which reflects oxygenation; and HCO3, or bicarbonate, a measure of a buffer base that can offset the buildup of acid. Dr. Ouzounian testified that normal readings for umbilical artery blood are: pH between 7.25 and 7.35; PCO2, about 50; PO2, about 20; and HCO3 between 20 and 25. According to Dr. Ouzounian, the arterial blood gas readings, which reflect fetal status were within the normal range for PO2 and HCO3, while the PCO2 was very high and pH was very low. Dr. Ouzounian testified that a formula is used to correct the pH reading based upon the high PCO2, which in this case results in a corrected pH of approximately 7.35. According to Dr. Ouzounian, a pH of 7.35 is "basically normal" and indicates respiratory acidosis, or possibly a metabolic component, but does not suggest a brain injury because the lack of metabolic acidemia shows that the baby had fetal reserves. Dr. Ouzounian defined base excess, or base deficit, as a calculated value that demonstrates whether a component of metabolic acidemia exists. Dr. Ouzounian testified that base excess or base deficit builds up when bicarbonate has been depleted and is not available to neutralize acid buildup. Dr. Ouzounian calculated the base deficit as approximately 11. Dr. Ouzounian opined that prior to birth Sooshyance did not sustain any brain injury caused by intrapartum oxygen deprivation based upon Dr. Ouzounian's assessment of Sooshyance's fetal reserves, considering his oxygenation and buffer bases.

         {¶11}Dr. Ouzounian testified that he would defer to the opinion of a pediatric neurologist regarding Sooshyance's condition after birth and his ability to respond to the supportive treatment that was provided thereafter. Nevertheless, Dr. Ouzounian was critical of the level of experience of the peds team, characterizing the team members as "rookies" who had never treated a baby in such a depressed condition. According to Dr. Ouzounian, every minute is critical when treating a baby who is born with no respiration and no heart rate. Dr. Ouzounian testified that according to times noted in the medical record, there was approximately three and one half minutes between the time that Dr. Malleske testified that he would have intubated (an estimate of one and a half minutes after birth) and the time that the baby was effectively ventilated at 1:57 a.m. Dr. Ouzounian explained that there are five categories that are assessed in assigning an Apgar score and he opined that the one-minute Apgar was not significant in determining a prognosis, in part, because it is dependent on the effectiveness of resuscitation efforts.

         {¶12} Dr. Ouzounian related that the American College of Obstetricians and Gynecologists (ACOG) is a professional organization that publishes clinical guidelines, including a guideline for determining the existence of HIE during labor due to intrapartum hypoxia. Dr. Ouzounian testified that the ACOG criteria included pH of less than 7 and a base excess greater than 12. Dr. Ouzounian stated that even if all the enumerated ACOG criteria were met, the guidelines also provide that all other possible causes for neonatal brain injury must be excluded and that Sooshyance's cardiac respiratory arrest after delivery was another explanation for HIE. During cross examination, Dr. Ouzounian testified that neonatal resuscitation is outside his area of expertise and that he has not performed that service since his residency. Dr. Ouzounian stated that he did not have any criticism of either the peds team, Dr. Malleske, or the nurses who assisted during and after delivery.

         {¶13} Plaintiffs nursing expert, Laura Mahlmeister, RN, PhD., had worked as a floor nurse for over 40 years before retiring to teach as a clinical professor of nursing at the University of California San Francisco School of Nursing. Dr. Mahlmeister also writes, lectures and serves on committees that formulate polices and procedures regarding labor and delivery. Dr. Mahlmeister testified that obstetrical nurses are "the eyes and ears of the doctor." Her review of the medical record showed that there were four experienced obstetrical nurses in the labor and delivery room, Nurses Cox, Jenkins, Elliot, and Cowles, and one nurse in training. Dr. Mahlmeister testified that she had no criticisms in this case if Nurse Cox notified the residents of the decreased fetal heart tracings as Cox testified in her deposition. Dr. Mahlmeister opined that the standard of care required the nurses to notify the residents of that change in condition. Dr. Mahlmeister explained that ensuring the proper personnel and equipment was ready for resuscitation was a crucial part of the nurses' duty. According to Dr. Mahlmeister, in the last 10 to 15 minutes before delivery, a reasonable obstetrical nurse under the same conditions would have had an expectation of severe birth depression based upon the very low fetal heart rate and rapidly diminishing variability. Dr. Mahlmeister testified that by about 1:40 a.m., a reasonable and prudent nurse would have communicated concerns about the fetal heart rate tracings. According to Dr. Mahlmeister, the peds team would have had to be notified of the depressed fetal heart tones by no later than 1:48 a.m. to allow them to notify Dr. Malleske in time for him to arrive prior to delivery.

         {¶14} During cross examination, Dr. Mahlmeister testified that a pattern of decelerations and minimal variability is a characteristic fetal pattern of metabolic acidosis and that the pattern was cause for the nurses to notify the peds team. Dr. Mahlmeister stated that metabolic acidosis is associated with a baby being born with an Apgar score of 0. Dr. Mahlmeister admitted that there is some controversy regarding the predictive value of electronic fetal monitoring. Dr. Mahlmeister acknowledged that lactic acid causes metabolic acidosis which then causes the decrease in heart rate variability. Dr. Mahlmeister testified that the residents knew there were decelerations when they were called, but she was not aware whether the heart rate monitor was audible in the delivery room. Dr. Mahlmeister opined that the only difference between Sooshyance's condition at birth and that of a stillborn baby is the fact that Sooshyance was able to be resuscitated.

         {¶15} Edward Karotkin, M.D., plaintiffs' neonatology expert, testified that he has over 40 years of experience and that he is board certified in pediatrics and neonatal- perinatal medicine. Dr. Karotkin is a coeditor (with defendant's expert, Dr. Goldsmith) of the textbook, Assisted Ventilation of the Neonate. Dr. Karotkin testified that for most of his career, he has practiced in a teaching hospital, instructing medical, resident, and fellowship students. Dr. Karotkin related that, ...

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