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.

What the Vacuum Does

A vacuum extractor -- also called a ventouse assisted delivery -- uses a small suction cup that is placed on the top of 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 suction from the vacuum assists in pulling the baby's head out of the birth canal to expedite childbirth.

The Vacuum is Sometimes Useful

There is a place for the vacuum in the obstetrician's toolkit. It has a 95% success rate when used properly. So the vacuum extractor is not a bad choice when used judiciously and in circumstances where the vacuum is called for because of specific delays in the 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.

How the Vacuum Goes Wrong

Child During DeliveryThe 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 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 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 extractor 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.

The Big Risk Factor with the Vacuum

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, they can cause a rupture in the child's head that leads to a brain bleed.

Informed Consent

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 the 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.

Defense Arguments in These Cases

The biggest defense argument in these cases is their claim that there are no are no accepted standards for the appropriate use of vacuum extraction. The defense lawyers 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, they try to extrapolate that it is all just one wide open 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.

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