Vacuum Extraction Birth Injury Lawsuits in Maryland

Operative vaginal delivery is when one of two medical devices -- forceps or a vacuum extractor -- is used to assist the mother during childbirth.

A vacuum extractor -- also called a ventouse-assisted delivery -- uses a small suction cup  placed on the top of the child's head in the birth canal. During the mother's contraction, the OB/GYN pulls or applies gentle traction to the baby's head while the vacuum's suction helps pull the baby's head out of the birth canal. 

There is a place for a vacuum-assisted extraction in the obstetrician's toolkit. Ventouse-assisted deliveries have a 95% success rate when used properly.  Our birth injury lawyers will never argue that OB's should never use a vacuum. Vacuum delivery is a fine choice when used judiciously and in circumstances where specific delays in the delivery require extra help with extraction. 

Notwithstanding that 95% statistic, you want to avoid a vacuum extraction delivery if possible. Why? The medical literature is clear that brain hemorrhages are strongly associated with vacuum-assisted delivery. Most cases that find their way to a medical malpractice lawyer's desk are because the vacuum was used when the indications are are that a vacuum extraction in that particular situation was unwise.

As a practical matter, a vacuum is a medical device to assist with delivery for OBs who are unskilled with forceps (this seems to be disproportionately younger OBs) which require much more skill. The vacuum also fits on top of the child's head which means less room is needed than forceps might require.

Malpractice lawsuits arise when obstetricians misuse a vacuum when it is not warranted or stick with the vacuum when a prudent doctor would have moved to plan B.  

The vacuum is a bad idea if there has already been an attempt with forceps. The vacuum is also not a good instrument for rotation. While a high level of operator skill is required, forceps is an instrument that's used for rotation and traction and descent. The standard of care also prohibits the use of vacuum extraction when the infant is above +2 station. In layman's terms, this means the head cannot be too high in the birth canal if you want to use a vacuum.

There are exceptions, of course, both real and imagined by defense birth injury lawyers. But in the vast majority of cases, the OB has to be prepared to drop the vacuum extraction and get the mother an emergency c-section.

One other big cause of medical malpractice cases the doctor just not paying attention to the delivery. The number one thing you have to do when you use a vacuum suction cup for delivery is you have to know the presentation and position and station of the fetus. If you do get this wrong and the child is in the wrong station or position, using the vacuum can cause grave consequences.

Other counter-indications for a vacuum delivery: 

• Delivery of a baby that has less than 34 weeks of gestation (even ACOG agrees with this because of the risk hemorrhage is so high)
• Prior use of a mechanical device, prior scalp sampling, or repeated efforts to fetal scalp electrode placement because of increased risk of a brain bleed
• There is a risk the baby weighs more than 10 pounds
• Cephalopelvic disproportion is suspected 

The purpose of the vacuum is to get the baby out quickly to avoid oxygen deprivation. The biggest risk in using a vacuum in delivery is a hematoma which is a swelling of clotted blood in the issues. More specifically, the concern is a subgaleal hematoma which is a brain bleed under the baby's skull. The infant's brain is so vulnerable at this point of life that a small insult can have tragic consequences. Usually, if there is a subgaleal hematoma, the child will suffer some neurological injury,

What happens with vacuum deliveries that lead to subgaleal hematomas is that the vacuum is either incorrectly placed, the OB twisted the head, or the doctor pulls too long or too hard. When the OB does this, it can cause a rupture in the child's head that leads to a brain bleed.

Other things to keep in mind with vacuum suction cup deliveries:

• In a correctly performed vacuum-assisted delivery, the suction cup must be pulled downward. When the fetal head starts to appear, the path of upward traction should be gradually changed.
• If there are more than 2 or 3 vacuum attempts (we would say 2) and there is an injury, that is a cause for concern that medical malpractice was a cause of the baby's injuries.
• Again, it is hard to defend the use of a vacuum on a child that is under 34 weeks gestation.
• It is a terrible idea in almost any case to use both vacuum and forceps

There is a dispute as to whether there is an informed consent requirement with a vacuum. Our view is that a patient needs to know all of the risks and costs involved when someone is using a medical instrument for childbirth. It would seem rather obvious to anyone who has read about the risks that come with a vacuum that this is a material risk that should be discussed with the patient.

The end-run around this obligation is that the idea that a vacuum is only used in an emergency which can give healthcare providers an end run around the informed consent requirements in Maryland. But this is silly. But the mother is almost invariably lucid and can make quick decisions at the moment. The easiest thing to ask the mother is do you want to use a vacuum or forceps or do you want an emergency c-section? Often, the c-section is not only a choice the mother was never offered, but it was the best choice under all of the circumstances.

The biggest defense argument in these cases is their claim that there are no accepted standards for the appropriate use of vacuum extraction. The defense birth injury attorneys push an American Congress of Obstetricians and Gynecologists (ACOG) bulletin that purports to reflect a lack of consensus in the medical community over the acceptable duration that vacuum could be safely used. 

From this ACOG bulletin, they argue it a judgment call and we should defer to the doctors to do what they think is best and not second guess them. Most of these cases reach a settlement before trial before juries have a chance to reject this argument. Many argue that the ACOG guidelines are void of scientific merit and their real purpose is as a legal tool to defend obstetricians against medical malpractice lawsuits.

Defense lawyers also like to argue the same brain bleed outcome is possible with forceps and a c-section. While technically true, the argument rarely holds up in a specific case because the circumstances in which you can get a similar brain bleed from a c-section or with forceps are very limited.

Listed below are summaries of jury verdicts and reported settlements from actual malpractice cases in which a birth injury was allegedly caused by negligent use of a vacuum extractor.

• Infant v Erhart (New York 2019) $850,000:  Shoulder dystocia is often a risk of vacuum misuse during labor and delivery.  A mother with a history of gestational diabetes is admitted to the hospital for labor under the care of OB/GYN defendants. Defendants are unaware that the fetus is macrosomic (overly large) and proceed with vaginal delivery. Labor is prolonged and the baby becomes stuck with shoulder dystocia. Defendants eventually deliver the infant with the use of vacuum extraction but the baby’s right brachial plexus nerves are damaged in the process. The baby is diagnosed with Erb’s Palsy and has developmental delays. The family brings a vacuum misuse lawsuit, alleging excessive force during the vacuum extraction. The case quickly settles for $850,000.
• Plaintiff v OB/GYN (Massachusetts 2018) $3,500,000: The mother is admitted to the hospital for labor at 38 weeks. After hours of pushing, the fetal heart tracings begin to show signs of distress. Instead of an immediate emergency C-section, defendant OB/GYN does an episiotomy and then makes 3 failed attempts to deliver the baby via vacuum extraction. Finally, after spending 40 minutes on the failed vacuum extractions, a C-section is performed. The baby suffered oxygen loss during the botched vacuum attempts and was later diagnosed with cerebral palsy. The case settled for $3.5 million just before going to court. 
• Rudnicki v Bianco (Colorado 2017) $4,000,000: A petite mother with a history of having large babies is induced for labor because of the baby’s large gestational size.  This should set alarms but apparently it did not. After hours of pushing the baby had still not descended into the birth canal. The doctor decides to attempt vacuum-assisted delivery instead of a C-section. There were no signs of fetal distress but there were very clear signs of possible cephalopelvic disproportion. After 20 minutes of maneuvering with the vacuum, the baby is delivered. He has signs of external trauma to his skull. He is diagnosed with a brain injury causing permanent mental impairment. His parents allege that the vacuum extraction never should have been attempted and that the doctor negligently placed the vacuum suction cup in the wrong location on the baby’s head. Again, proper placement of the vacuum is critical. The case went to trial and the jury awarded $4 million in damages.
• Dixon v United States (Florida 2017) $33,813,496: Plaintiff, a 19-year-old first-time mother, was admitted to federal hospital for labor. During labor, the baby’s heart rate starts to drop. Plaintiff allegedly asks for a C-section but the doctor refuses and then leaves the room to call his financial advisor. The doctor comes back and uses a vacuum extraction pump to facilitate delivery. After three separate attempts with the vacuum extractor, the baby is finally delivered. But he suffers permanent brain damage in the process. The injury leaves the baby in a near vegetative state requiring round-the-clock care. Jury awards $33 million in damages.

Our law firm handles vacuum extraction birth injury claims. If your baby was delivered with vacuum extraction and has been diagnosed with a birth injury, you may be entitled to compensation. Contact the birth injury lawyers at Miller & Zois for a free consultation and investigation of your case.