During labor and delivery, obstetricians, nurses and hospital staff involved in the birth are responsible for taking every reasonable step to ensure that the process goes as smoothly as possible. One of the ways they can do this is by properly monitoring the vital signs of mother and baby during labor and delivery and taking appropriate actions when signs of distress are present. Improper monitoring often leads to serious birth injuries.
The obstetrics team has several options for monitoring the health of mother and baby. For example, some hospitals use external monitors that are attached to the mother’s abdomen. These monitors then use Doppler ultrasound to detect the heartbeat of the fetus. Other hospitals may use internal monitoring systems that are attached to the fetus’s scalp. The information collected by these monitoring systems is printed on what are known as “fetal monitor strips” (also referred to as “fetal monitor tapes”). In addition to the fetus’s heartbeat, fetal monitor strips also record when the mother has contractions.
While a woman is in labor, nurses should frequently check the fetal monitor strips and alert the doctor immediately if there are any patterns indicating distress, such as low oxygen levels or a slowing heartbeat. Fetal distress can be caused by any number of factors, including the possibility of the fetus becoming entrapped by the umbilical cord. In cases of fetal distress, the doctor may need to perform an emergency c-section, use suction or forceps to remove the baby from the birth canal, or take other action to speed delivery of the child.
If the doctor, nurses or other support staff fail to properly monitor the mother’s and baby’s vital signs or fail to act swiftly once the fetus begins showing signs of distress, serious injury may occur, ranging in severity from mild to traumatic. In the most severe cases, the baby may suffer brain damage from oxygen deprivation (also known as anoxia). These babies may develop cerebral palsy, muscle atrophy, or other physical and mental disabilities. In the worst cases, the baby may die.
Duty to Retain Fetal Monitor Strips
When a birth injury has occurred, the fetal monitor strips can be invaluable pieces of evidence. They will show when the fetus went into distress and how long it remained in that state. This information may be used to show that the treating physician committed malpractice by not responding to the distress in a timely manner.
Fetal monitor strips constitute a part of the medical record. As such, hospitals are required to keep them for a certain amount of time. Under New York Hospital Code §405.10(a)(4), hospitals must save the strips for whichever time period is longest:
- 6 years from the date of discharge
- 3 years after the child reaches the age of majority (18 years old)
- 6 years after the child’s death
Though the law requires hospitals to keep these records, fetal monitor strips go missing more frequently than they should. When this happens, there are two legal remedies that may be available to plaintiffs: the court may give a missing document charge or the court may strike the defendant hospital’s answer for spoliation of the evidence.
- Missing document charge: this means that the jury is given an instruction to draw the strongest adverse inference from the missing fetal monitor strips as evidence against the defendant hospital. This is the most common remedy provided to plaintiffs in birth injury cases when fetal monitor strips have gone missing. In Martelly v. New York City Health & Hosp. Corp., 276 A.D.2d 373, 373-74 (1st Dept. 2000), the appellate court held that it was proper to give the missing document charge in part because the hospital had a legal obligation to keep the record and had been unable to give a reasonable explanation for its failure to produce it.
- Striking the answer for spoliation of evidence: this means that the court will enter a default judgment against the hospital on the question of liability (i.e. the court will find the hospital committed malpractice). Since this outcome is quite severe, it is only available in very limited circumstances. The plaintiff must prove that the loss of the fetal monitor strips deprives him or her of the means to prove that the birth injury was the result of malpractice. The Baglio v. St. John's Queens Hosp., 303 A.D.2d 341 (2d Dept. 2003) is an example of one of the rare cases in which the court ordered the hospital’s answer struck for failing to produce fetal monitor strips. In that case, the appellate court noted that "the fetal monitoring strips would give fairly conclusive evidence as to the presence or absence of fetal distress, and their loss deprives the plaintiff of the means of proving her medical malpractice claim against the Hospital."
For either remedy to be available, the plaintiff must show that the fetal monitor strips existed, that the hospital exercised control over them, that the hospital violated the law by failing to keep the strips, and that the strips are relevant to the case.
Contact a Medical Malpractice Attorney
Children who have suffered birth injuries may face a lifetime of medical complications. In some cases, these children may have shortened life expectancies. The law gives parents of children who have suffered a birth injury the right to take legal action in their name and recover damages on their behalf. In New York, there is a 10-year statute of limitations on parents’ rights to bring these types of claims.