This page is about vacuum delivery birth injury lawsuits. Our vacuum injury lawyers look at what type of vacuum extraction medical malpractice lawsuits are most successful and the settlement amounts and jury payouts families can typically expect to see if a negligent delivery has harmed their child.
Our medical malpractice lawyers are based in Maryland, but we handle birth injury lawsuits nationwide. Do you want to talk to an attorney about your possible claim or find out if you have a claim? We can help you. Call 800-553-8082 or get a free online consultation.
What the Vacuum Does
Operative vaginal delivery is when one of two medical devices — forceps or a vacuum extractor — assists 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.
The Vacuum is Sometimes Useful
There is a place for a vacuum-assisted extraction in the obstetrician’s toolkit. Ventouse-assisted deliveries have a 95% success rate when used correctly. Our birth injury lawyers will never argue that OBs 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, if possible, you want to avoid a vacuum extraction delivery. Why? The medical literature shows that brain hemorrhages are strongly associated with vacuum-assisted delivery. One-third of these deliveries go sideways and need a C-section anyway.
Most cases find their way to a medical malpractice lawyer’s desk because the vacuum was used when the indications 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, sadly), 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.
How the Vacuum Goes Wrong
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 are used for rotation, traction, and descent.
The standard of care also prohibits vacuum extraction when the infant is above +2 station. In layperson’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 most cases, the OB has to be prepared to drop the vacuum extraction and get the mother an emergency C-section.
Another significant cause of medical malpractice cases is the doctor not paying attention to the delivery. The number one thing you have to do when you use a vacuum suction cup for delivery is know the fetus’s presentation, position, and station. If you 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 the risk of bleeding 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 Big Risk Factor with the Vacuum
The purpose of the vacuum is to get the baby out quickly to avoid oxygen deprivation. The most significant risk in using a vacuum in delivery is a hematoma, a swelling of clotted blood in the issues.
More specifically, the primary concern is a subgaleal hematoma, a brain bleed under the baby’s skull. The infant’s brain is so vulnerable at this point that a minor insult can have tragic consequences. Usually, if there is a subgaleal hematoma, the child will suffer some neurological injury from the trauma of the vacuum.
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, leading 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, using a vacuum on a child under 34 weeks gestation is hard to defend.
- It is a terrible idea in almost any case to use both vacuum and forceps
An Ignored Safety Rule: If the Vacuum Pops Off Twice, Do a C-Section
The mistake our birth injury lawyers see in these cases is the obstetricians often do not decide to use the vacuum to facilitate labor and delivery but stick with the vacuum when a reasonable doctor would realize that the risk of trauma continuing with the vacuum outweighs the possible benefit the device getting the infant out.
In birth injury lawsuits, it is not hard to find an obstetrician to say that after two pops off, the doctor should move on to plan B, usually a Caesarean section.
Informed Consent for Vacuum
There is a dispute about whether there is an informed consent requirement with a vacuum. There is no vacuum trauma law regarding informed consent, but reasonableness is required.
The law requires a doctor to tell the patient all the risks and costs involved when someone uses 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 a vacuum is only used in an emergency, which can give healthcare providers a backdoor around the informed consent requirements in Maryland. But this is silly. The mother is almost invariably lucid and can make quick decisions at the moment. The easiest thing to ask the mother is whether you want to use a vacuum forceps or 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 circumstances.
Defense Arguments in These Cases
The most significant 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 is 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 can reject this argument. Many argue that the ACOG guidelines are void of scientific merit and that their real purpose is as a legal tool to defend obstetricians against medical malpractice lawsuits.
Defense lawyers also argue that 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 minimal.
Can Use of a Vacuum Extractor During Delivery Cause Birth Injuries?
Yes. A vacuum extractor is a medical device that doctors use to facilitate vaginal delivery by gripping the top of the baby’s head and maneuvering them out of the birth canal. However, when the doctor uses too much force, gets the wrong grip on a baby’s head, or makes too many attempts with a vacuum extractor, it can cause severe birth injuries.
The most common are injuries to the child’s head and skull from improper placement or unskilled use, which lead to oxygen deprivation that can cause cerebral palsy and other head injuries that can permanently damage the baby’s brain.
Vacuum misuse can also result in nerve injuries. What kind of cases do our vacuum trauma lawyers see the most? Erb’s palsy and shoulder dystocia. These injuries occur when the doctor uses excessive force or lateral traction when pulling the baby out.
How Common Is Vacuum-Assisted Delivery?
Vacuum-assisted vaginal delivery is not very common. Only about 5 out of every 200 babies are delivered with the assistance of a vacuum extractor. However, vacuum extraction is more common than the use of obstetrical forceps.
Which Is Safer Vacuum or Forceps?
Vacuum extraction is generally considered a lower-risk assisted vaginal delivery than obstetric forceps. The vacuum extraction method requires less anesthesia, presents a lower risk to the baby than forceps, and requires less skill.
Vacuum extraction also has a lower risk of maternal trauma. However, negligence vacuum extraction can and frequently does cause major birth injuries, just as forceps.
Why Is Vacuum Delivery Done?
Vacuum extraction is used to help facilitate vaginal delivery when the natural contractions and pushing alone are ineffective. The likelihood of serious infant injury is increased when multiple or excessive efforts at extraction are performed or when certain complications arise, such as shoulder dystocia.
Vacuum Trauma Injuries Settlement Amounts Factors
Vacuum trauma lawsuits have wildly varied settlement compensations and jury payouts based on a ton of different factors that all have different weights. Here are the nine factors our malpractice attorneys believe drive settlement amounts in vacuum injury cases.
- The Strength of the Negligence Case: It all starts with how hard it will be to prove that doctors and/or nurses are responsible. The stronger the case, the higher the expected settlement amount. Some cases are easy to prove, and some are nearly impossible to prove responsibility. The “more liable” the healthcare provider is for the injury, the higher the payout will be.
- Severity of the Injury: One of the most critical determinants of the compensation amount is the severity of the injury sustained. If the injuries are not permanent, you will unlikely find a birth injury attorney to help you. But if the harm is life-altering or the baby does not survive, there is a lot of upside for a high damages award or settlement.
- Extent of Medical Treatment Required: The past and future medical expenses related to the injury often play a significant role in determining the compensation. Future medical expenses are usually the more significant number – it can be in the tens of millions in some cases – for brain bleeds that lead to brain injuries.
- Long-term Consequences: If the injury results in permanent disability disfigurement, or requires long-term care, the compensation will be higher. This includes considerations for future lost wages, future medical care, and decreased quality of life.
- Pain and Suffering: This factor is more subjective and pertains to the physical and emotional distress caused by the injury. It’s challenging to put a dollar amount on this, but it’s what juries must do. Caps limit these damages in some jurisdictions.
- Lost Wages and Loss of Earning Capacity: If the injury has caused the child (or the caregivers) the ability to earn a living in the future, this will be factored into a settlement amount, and it can often be a huge number over the course of a lifetime.
- Your Lawyer: The most significant decision you may make for your child with severe injuries is who you hire as your medical malpractice lawyer. It makes that big of a difference.
- Venue of the Lawsuit: Some jurisdictions generally award higher compensations than others. So where the lawsuit is tried can be a big deal to the claim’s settlement value.
- Defendant’s Ability to Pay: The insurance coverage of the defendant (often a doctor or hospital) will often play a big role. Many doctors only have $1 million or less in coverage. So getting a hospital on the hook can really drive the value of a birth injury lawsuit involving vacuum trauma.
Verdicts and Settlements for Vacuum Injuries
Below are summaries of jury verdicts and reported settlements from malpractice cases in which the negligent use of a vacuum extractor allegedly caused a birth injury. You cannot use these to determine the value of your family’s claim. But they do help you better understand the potential range of settlements and verdicts in these cases and you can see how the nine factors listed above drive the results.
- Rongione v Jiang (Pennsylvania 2023) $8,000,000: The plaintiff was admitted into labor with her second child at 39 weeks, began to push in the afternoon, and the baby’s fetal heart rate became bradycardia. The defendant OB/GYN attempted a vacuum delivery and ordered an emergency C-section. The baby was delivered, but several hours later, the plaintiff suffered an internal hemorrhage and cardiac arrest and had to undergo a hysterectomy.
- D.S. v. Mercy Hosp. (Iowa 2022) $97,400,000: A woman went into labor and was admitted to an Iowa City hospital. Although her pregnancy had been uneventful, complications arose during her delivery. After being admitted, her baby displayed a concerning heart rate. An operating room was set up for a potential c-section, but instead of performing the surgery immediately, the attending doctor attempted to slow the labor with medications. The doctor then left the mother for an hour to attend to other deliveries. During this absence, the baby’s heart rate worsened, indicating fetal distress. When the doctor returned, both forceps and a vacuum extractor were used to assist the delivery, resulting in the infant suffering skull fractures, bleeding in the brain, and oxygen deprivation. A lawsuit ensued, with the family’s attorneys arguing that a timely c-section could have prevented these injuries. The jury awarded the family $97.4 million, deeming it the largest medical malpractice verdict in the state’s history.
- K.S. v United States (Kentucky 2022) $500,000: The delivery team at the defendant, a federally funded hospital, attempted to deliver the baby via vacuum extraction. The vacuum extractor caused significant force and injury to the baby’s head, resulting in a sizeable subgaleal hemorrhage and HIE, prompting multiple organ failure. The baby died three days after birth from complications related to the brain injury caused by the vacuum. The case settled for $500,000.
- S.K. v Mercy Hosp. (Iowa 2022) $97,402,553: The baby sustained permanent brain damage resulting in seizures, developmental delay, facial nerve palsy, and loss of a normal life, requiring the life-long placement of a ventriculoperitoneal shunt and full-time, 24/7 attendant care. The lawsuit alleged that the injuries were caused by grossly excessive force used during delivery. The OB/GYN first used forceps, fracturing and indenting the baby’s skull, then after that, he completed the delivery with a vacuum pump, which made the head injuries even worse.
- A.R v Catholic Health (Colorado 2021) $8,030,003: The baby suffered permanent disabling neurologic, brain, and physical injuries due to intracranial hemorrhage, resulting in left-sided hemiparesis, seizure disorder, and epilepsy, during his birth. The injuries were caused by the delivery team’s negligent use of a vacuum pump extraction device, and the lawsuit accused the hospital of negligently failing to ensure that its staff and doctors were properly trained on the use of vacuum extractors.
- 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 using vacuum extraction, but the baby’s right brachial plexus nerves are damaged. 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 show signs of distress. Instead of an immediate emergency C-section, the defendant OB/GYN does an episiotomy and then makes three failed attempts to deliver the baby via vacuum extraction. Finally, after 40 minutes of 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 into 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 obvious 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 on the baby’s head in the wrong location. 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 a federal hospital for labor. During labor, the baby’s heart rate starts to drop. The 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. The baby is finally delivered after three separate attempts with the vacuum extractor. 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.
Contact Miller & Zois About Vacuum Extraction Negligence
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 at 800-553-8082 or get a free online case evaluation.