CEREBRAL PALSY COMPLAINT AND ELECTION FOR JURY TRIAL
COMMONWEALTH OF KENTUCKY
Fayette Circuit Court
Civil Action No.:
Division No.:
___________, a minor,
by his mother and next friend
___________
Plaintiff
v.
_________________
SERVE ON: Registered Agent
and
________________
SERVE ON: Registered Agent
Defendants
* * * * * * * * * * * * *
COMPLAINT AND ELECTION FOR JURY TRIAL
___________, a minor by his mother and next friend ___________, Plaintiff, by and through his attorneys,sue Defendants___________________________, and in support state as follows:
Parties, Jurisdiction and Venue
1. This is a medical malpractice case arising from care rendered to Mrs. ___________ (now known as ___________) and her then fetus, ___________, on and around April 4, 1995. As a consequence of the negligent treatment rendered by Defendants, ___________ was not timely and safely delivered and as a result suffered brain damage, mental retardation and cerebral palsy.
2. At all relevant times, Hospital, the facility is referred to as “___________Hospital.”)
3. At all times pertinent, Defendant ___________ held itself out to the public as a competent provider of medical, nursing, obstetrical, and gynecological services. Defendant indeed provided medical, nursing, obstetrical, and gynecological services to Plaintiffs at Hospital through its actual and/or apparent agents, servants and employees, who all acted within the scope of their agency or employment.
4. At all relevant times, Defendant held itself out to the public as a competent provider of medical, nursing, obstetrical, and gynecological services. Defendant indeed provided medical, nursing, obstetrical, and gynecological services to Plaintiffs at Hospital through its actual and/or apparent agents, servants and employees, who all acted within the scope of their agency or employment.
5. Defendant __________, M.D. is a physician who specializes in obstetrics and gynecology and at all relevant times held himself out to the public as a competent provider of medical, obstetrical, and gynecological services.
6. Defendant __________________ is a Kentucky professional services corporation which at the time of the incidents complained of herein was in the business of providing medical, obstetrical, and gynecological services, and did so holding itself out to the public as a competent provider of such services.
7. In his care and treatment of Plaintiffs, Defendant Dr. ____ acted as the agent, servant or employee of Defendant __________ and did so within the scope of his agency and/or employment.
8. The nurses at ___Hospital, including ____R.N, acted as the actual and/or apparent agents, servants and/or employees of Defendant ___________, and did so within the scope of their agency or employment.
9.. The nurses at __Hospital, including ____ R.N, acted as the actual and/or apparent agents, servants and/or employees of Defendant J, and did so within the scope of their agency or employment.
Facts Common to All Counts
10. At or about 9:35 p.m. on _____________, Plaintiff presented in labor to ___________ Hospital under the care of her prenatal doctor, Defendant ___ M.D.
11 She was at term and had experienced a relatively benign prenatal course.
12. When the fetal heart rate monitor was initially placed at about 9:35 p.m. it showed a reassuring fetal heart rate tracing, indicating fetal well being.
13 On or about _____________, at 3:05 a.m. Plaintiff’s membranes ruptured and clear fluid was present, again indicating the fetus had not been experiencing any stress during the labor process.
14. The fetal heart rate continued to be monitored and was overall reassuring until 9:00 a.m. when Plaintiff became fully dilated and began to push.
15. It was during this phase that the fetal heart rate was described by ___________ R.N. as being “very irratic” and “unable to tell baseline.”
16. Despite these findings of fetal stress during the pushing phase of labor, Nurse ___________ did not attempt any intrauterine resuscitative measures to alleviate the situation.
17. Instead, approximately twenty minutes later at 9:30 a.m. Nurse ___________ placed an internal monitor on the fetus to obtain a more exacting reading of the fetal heart rate. Nurse ___________ described “variable decelerations with late components.” These are indications that the fetus is not receiving as much oxygen as he should and thus is at serious risk for suffering brain damage if not alleviated promptly by resuscitative measures or prompt delivery. Still, Nurse ___________ did not attempt any intrauterine resuscitative measures to alleviate the situation, nor did she notify Dr. ___________ about the situation. Thus, the abnormal fetal heart rate tracing continued.
18. Belatedly at around 10:20 a.m., Dr ___________ was notified of the situation but he did not order an emergency cesarean section to be performed. Instead he arrived to bedside at approximately 35 minutes later and attempted a forceps delivery even though “it was difficult to evaluate the fetal skull position.” Predictably, therefore, the attempt at forceps delivery failed.
19. Despite continuing severe variable decelerations of the fetal heart rate, Plaintiff was not taken for an emergency cesarean section delivery but rather was treated as merely an “urgent” cesarean section case, therefore further delaying delivery and prolonging the fetal distress.
20. At no point did the nurses at ___________ Hospital access the hospital’s chain of command to assure that the mother and fetus would receive proper and timely care, which demanded an emergency delivery.
21. Baby ___________ was finally born at 11:37 a.m. His Apgar scores (a 0-10 scale for assessing the well being of a newborn) were only three at one minute of life and seven at five minutes of life. Baby ___________ was hypotonic and began to have grunting respirations, both indicative of his prolonged oxygen deprived condition in utero.
22. At around 14 hours of life the baby began to have seizures. A CT scan of the brain at about 20 hours of life showed diffuse swelling consistent with cerebral edema.
23. The baby was transferred to the ___________of Kentucky for further management and care.
24. At _________Hospital it was determined that baby ___________ had suffered from a hypoxic or ischemic event.
25. The Defendants’ negligent delay in delivering ___________ caused him to suffer perinatal asphyxia (lack of oxygen to the brain), acidosis (excessive acid in the blood), seizures, neurologic injuries and other injuries. He sustained permanent and disabling injuries as a result of Defendants’ negligence, including but not limited to past, present and future pain and suffering and mental and physical disabilities.
Count I - Negligence
26. Plaintiffs reallege paragraph 1 though twenty-five as if fully stated herein.
27. The Defendants, directly and through their respective actual and/or apparent agents, servants and employees, owed Plaintiffs the duty to exercise that degree of care and skill which like health care providers would have exercised in meeting the standards of care applicable to each under the same or similar circumstances.
28. The Defendants, directly and/or through their respective actual and apparent agents, servants and employees, departed from the applicable standards of care for reasonably competent like health care practitioners acting under similar circumstances and were negligent in the following ways, among others:
A. Failing to properly and timely deliver ___________;
B. Failing to appropriately manage ___________’s labor;
C. Failing to properly recognize and diagnose the condition of the
fetus;
D. Failing to implement a proper plan to assess the mother and unborn child;
E. Failing to implement a proper plan for and perform monitoring of the fetus for continued well-being;
F. Failing to respond appropriately to the mother’s condition and the baby’s condition on a timely basis;
G. Failing to properly monitor and manage labor and delivery so as to prevent avoidable injury to Plaintiffs;
H. Improper use of foreceps;
I. Failing to perform a timely cesarean section; and
J. Failing to other ways to manage the condition of mother and fetus.
29. Defendant ___________ , directly and/or through its actual and apparent agents, servants and employees, was further negligent and departed from the applicable standard of care in the following ways:
A. Failing to access the chain of command to assure that proper care was given to Plaintiffs;
B. Failing to establish and follow safe policies and practices in managing ___________’s labor; and
C. Failing to adequately train and/or supervise its agents, servants, and/or employees.
30. Defendant directly and/or through its actual and apparent agents, servants and employees, was further negligent and departed from the applicable standard of care in the following ways:
A. Failing to access the chain of command to assure that proper care was given to Plaintiffs;
B. Failing to establish and follow safe policies and practices in managing ___________’s labor; and
C. Failing to adequately train and/or supervise its agents, servants, and/or employees.
31. As a direct and proximate result of the Defendants’ negligence, directly and/or through their respective actual and apparent agents, servants and employees, the infant, ___________, suffered severe and permanent injuries and damages, including but not limited to:
A. Severe and permanent impairment of his cognitive, language, social fine motor and gross motor skills;
B. Past, present and future pain and suffering;
C. Prolonged hospitalizations and the need for ongoing medical, nursing, hospital, pharmaceutical, rehabilitative, therapeutic and custodial care and specialized equipment;
D. Loss of future income and diminished earnings capacity;
E. Loss of enjoyment of life;
F. Diminished life expectancy; and
G. Substantial past, present and future expenses for: medical, nursing, custodial and related care; various forms of therapy, such as physical, occupational, speech, rehabilitative, psychological and pharmaceutical therapies and treatments; various specialized devices, equipment, transportation and housing; and, other necessary and reasonable care and equipment.
32. Had the Defendants adhered to the applicable standards of care, Mrs. ___________’s condition and the condition of her unborn child would have been appreciated, and appropriate measures as required by the standard of care would have been taken, and the injuries to ___________ would have been avoided.
WHEREFORE, ___________, a minor by his mother and next friend ___________, by through his attorneys demand judgment against the Defendants, jointly and severally, for compensatory damages in an amount which is fair and reasonable taking into consideration the proof at trial, a trial by jury, and such other relief to which Plaintiff may be entitled.
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