Sarah:

Welcome back to Happy Hour with Bundle Birth Nurses. We are, I don't know if I can even say excited to talk about this case, but today we are going to be talking about the Georgia case that many of you have seen in the media that has been hot related to a case of fetal loss and decapitation. So if you are pregnant and expecting and or maybe your nervous system feels on edge, you've heard about this in the news, the media, and you're having a hard time with it, I encourage you to listen to this episode when you feel ready. And so this is sort of your trigger warning going forward that we are going to be talking about some sensitive issues and discussing this case. We have Jen and Marlee here who are experts on the legal side and we're going to talk through this case and have a discussion surrounding what we know publicly. So I do want to say right now as a disclaimer that none of us are involved with this case. We do not have firsthand knowledge of any insider scoop. Anything that we're discussing is mostly speculation and or what's already related or relayed out in the public. But we thought it would be very timely for us as labor and delivery nurses and for our profession to discuss this case because it's been so hot in the media and because it leaves a lot of gaps open for questioning. And I think all of us, when we hear a legal case like this, it sets us up to go, oh my gosh, what do I do? Now I'm scared, particularly related to my license. And so we want to come and give some facts, give some knowledge and bring in the experts to weigh in on what's our responsibility in cases like this and what could we do in the future to help prevent such tragic cases potentially. So that's what we're here to do today. I'm going to have Jen and Marlee introduce themselves because we are super excited to bring in some experts to weigh in on this and just give a little bit about your background. Those of you that have listened to our podcast before, you heard of Jen. She's already been on our podcast in the past and then she's back to weigh in on this particular case. And so if you haven't listened to that, go back and listen to her episode. Otherwise, we will let her introduce herself for this one as well.

Jen:

So I'm Jen Atkisson. I'm a labor and delivery nurse in Portland, Oregon, and an educator. And why most people listen to me is because I'm also an expert witness in birth injury cases, both for the plaintiff side and for the defense side. And now I've crossed over like the 300 case mark. So I've seen a lot of cases in a lot of states, including federal. And so, yeah, I'm going to share it with my friends, which is labor and delivery nurses, because it is a very secretive world. And like you said, there's a lot of gaps in this case. And what we like to do with gaps is we like to fill them with right or most likely wrong information. So that's the kind of thing I usually come in to talk about.

Marlie:

Hello, I am Marlie Willer. I am a lawyer that's based out of Boston, Massachusetts. I really appreciate you guys having me on here today to discuss this case. I am a plaintiff's lawyer, so that means I am the one that's filing the lawsuits against hospitals and doctors and nurses. But specifically when it comes to shoulder dystocia cases. So I've been practicing for approximately 10 years and I've really spent a majority of my practice focusing on obstetrical negligence cases. And like Jen, I've been involved with hundreds and hundreds of obstetrical negligence cases, but specifically on the issue of shoulder dystocia, I've personally probably litigated over a hundred of shoulder dystocia cases themselves. So I do more than just shoulder dystocia cases, but particular to shoulder dystocia in this case, it's in the hundreds as well. So I just wanted to come on and maybe help nurses reduce some fear, talk about how these cases typically unfold, the process, because my number one goal is better outcomes for moms and babies. So, you know, there are some attorneys that feel like they want to gatekeep. I don't believe in that because I'm trying to promote better care for moms and babies and better outcomes for them. So if I can do something to reduce the amount of fear that maybe some providers or nurses have about this case to prevent further injury, I'm happy to talk about it.

Jen:

So some more things about Marlee is she definitely is like a go to person for other lawyers. And so I just want to make sure she's tooting her own horn enough on that one. And I have to say, like she and I don't work together on any cases. Like now we're probably too good of friends to do that. But, you know, one of the things that I think a lot of nurses and doctors get wrong is we're really set up to not only be afraid of lawsuits, but to be afraid of plaintiffs attorneys. And I don't know that I've met a plaintiffs attorney that doesn't really, really care. They care about their clients, but they also really care about and like and respect nurses and doctors. They just typically expect us to expect a lot out of us, right, which isn't, I think, a wrong thing to do. So that's something I think a lot of nurses that goes along with fear of lawsuits is also that plaintiffs attorney or not. But as you can see, she's incredibly lovely, nice, wonderful human being.

Sarah:

Well, and a nice, lovely human being that can really offer some expert insight into this stuff that we just don't know as nurses. And we hear it's all speculation and we spread all sorts of comments on the unit about losing your license and oh, this nurse that we make a lot of judgment calls. We write, we write each other stories. And so I love that we have sort of this grounding force on this call between the two of you, even in the lack of our knowledge in this area. This is not our area of expertise, but to be able to have you guys come on and share is just so helpful for this community. So thank you for being here.

Justine:

And you're so right, Sarah. There is such a lack of knowledge, because even when you said plaintiff, I was like, what's that? I mean, explain it. I was like, oh, in my mind. But then on the unit, we talk all the time about like your license. Right. And Jen, you have a great point when people are like, well, when you're in court, you said this before on the other episode and you're like, have you been to court? And they'll be like, no. How do you know? You know, so there is such a fear and a stigma, but we've never been and we don't know. So thank you guys for being here. I'm really excited to listen to you and learn from you. But I know that we're going to go through the case now. And so, Sarah, if you want to run through that.

Sarah:

Yeah, Marlee, did you want to just kind of give us some words before I go through the timeline? So I'm literally just reading the complaint. This is public knowledge. It's on the Internet. And it is what the family Ross Taylor has filed online. And so I will just read what's been complained upon. That's not.

Marlie:

Pled. So Pled. So it's. Yeah. The allegations in a complaint are Pled. So a complaint. This is one of the reasons why I was excited to come on and talk about it is because we have such limited information about what actually occurred in this case, because we don't have access to the medical records, obviously. And we are only looking at it from one perspective. But the complaint is filed prior to any discovery that's conducted. So any sort of investigation that is conducted with the other party, so with the hospital, with the doctors, with the nurses. So the only thing that we have to rely upon are the medical records and then the recount from any witnesses, any lay witnesses like the family members or the funeral home directors, people like that who've made statements already. And so the complaint is really just designed to be a plain statement of the allegations. It's not supposed to be a full picture. There's missing pieces. There's a lot of questions that still need to be asked. And in Georgia, there are extra safeguards to protect against what we call a meritless or frivolous case. So in some states, you can file a medical malpractice lawsuit against a hospital or a doctor without an affidavit of merit. And an affidavit of merit is from somebody like Jen, who is an expert witness who can come in and testify to what the standard of care is in this particular situation and what either act or omission the provider did and fell below that standard of care. So not all states even require that. You can just file a lawsuit against a hospital or provider without an affidavit of merit. Georgia does require that an affidavit of merit be attached to the complaint. So we see in this case, there is an obstetrician that has filed an affidavit and there has also been a expert nurse witness who has also filed an affidavit. But again, that's just based off of the medical records and the affidavits don't need to include every single act and omission. So it's not required that the expert come in and say, these are all of the breaches or this is exactly how the breach of care unfolded. What they're only required to do in the initial phase, so this very beginning stage, is say this is what the standard of care is and there is at least one breach in this situation and identify what that breach was and their factual basis for making that claim. So there could be a lot more that comes out and there is going to be a lot more that comes out throughout litigating this. But we're only required to file at least one breach against each party that's being sued. And so, again, there's just not enough evidence to prove that. There's just not a lot of information and there's room to speculate. And the complaint, again, is drafted by attorneys, right? It's not drafted by medical professionals. So, you know, the expert witnesses assist in giving us our opinions. And that's another thing to kind of I'm kind of getting digressing, but that's another thing that I think initially needs to be addressed is that me as a lawyer, I can't just file a medical malpractice lawsuit because I heard a family story, read the medical records, and it just didn't seem right to me. I have to have expert witnesses come in and substantiate any claim that it is that I'm making against a provider. So I have to rely on people like Jen or obstetricians, depending on who it is that I'm suing.

Sarah:

So in this case, we could deduce there have been experts that have weighed in to substantiate this case enough that it has become an official complaint. Right. Based on medical records, which I'm so desperate. Like I'm reading this and I'm like, where are the medical records? I want to see the medical records so bad. I can't imagine how you guys feel. You want your hands on them, I'm sure. And all of us will because there's so many gaps to this. So we're saying there's probably enough in there and there's a lot missing.

Marlie:

Right. Correct.

Sarah:

OK, so for those of you that are totally lost, what in the world are they even talking about? You're about to find out exactly what we're talking about as I read the facts that they have filed. And then for those of you that need a refresher, here is what has been filed on January 10th. So this was recent. Twenty twenty three, 20 year old Miss Jessica Ross presented to premiere women's OBGYN due to missing her period. So that was her first appointment was back in January. She was diagnosed with type 2 diabetes in July, making her a high risk pregnancy. She's 4'9", weighing 200 pounds at the beginning of her pregnancy. She consistently went to her OB appointments. They say that her diabetes was not optimally managed with her blood glucose levels often running low and at times high. Not going to comment. I'm afraid my comments. She was seen at another place for maternal fetal medicine specialists throughout her pregnancy. Her H or A1C was six point three percent. And then here's where it starts for her case. So on July 9th, 2023, her water broke at approximately 10 a.m. She presented to the emergency department at 10:10 a.m. So 10 minutes later on that same day, IV Pitocin was started on that same day at 12:28. So about two hours later and her labor progressed at approximately 8:40 p.m. Miss Ross was fully dilated and was instructed to begin pushing. So she began pushing at 8:40 p.m. The baby did not properly descend due to shoulder dystocia. She pushed without delivery for approximately three hours. Dr. Tracy attempted to deliver the baby vaginally using various methods, including applying traction to the baby's head. There's no documentation of any nurse or doctor activating any emergency obstetrical protocol in a timely manner after the shoulder dystocia was recognized. Upon information and belief during a significant amount of time that the doctor was attempting to deliver the baby vaginally in the delivery suite. And after recognition of the shoulder dystocia, Miss Ross was not in McRoberts positioning. There was no documentation in the medical records of any nurse or other health professional involved in the care advocating for a stat C section to be done prior to the doctor deciding to do a stat C section at approximately 11:49. So just to recap the timeline, she started pushing around 8:40. She pushed without delivery for three hours. At some point there was a shoulder dystocia and they did a stat C section at 11:49 p.m. The fetal monitoring strips showed repeated and consistent category three strips beginning at 9:26 with persistent late decelerations until 10:36. No documentation of any resuscitative measures taken in response to that. The fetal monitoring showed a 10 minute period of profound bradycardia beginning at approximately 10:36. Thereafter, no evidence of fetal heart tones on the fetal monitoring strip. Eventually, they took her to the operating room, attempted a C section at approximately 11:49 p.m. The baby was delivered via cesarean on July 13th at approximately 12:11 a.m. with initial delivery of only the legs and body. The baby was capitated. The baby's head was delivered vaginally and upon delivery, the entire weight of the baby was seven pounds, six ounces. The C section was completed at 3:01 a.m. Now it says on July 10th. I think that was probably a typo, but we'll go with it. And then pitocin was discontinued at 3:01, sounding like the pit was on the whole time. And they did not tell it, 5 a.m. They did not tell them that the baby had been decapitated. Over the next couple of days after the death of their son, health care providers affiliated with their services and the medical center discouraged Ms. Ross and Mr. Taylor from getting an autopsy. Over the next couple of days after the death of their son, health care providers affiliated with them and that medical center encouraged them to have their son cremated instead of being sent to a funeral home for the burial of the baby. The family was told about the decapitation on July 13th after Ms. Ross had been discharged from the hospital. And that is the end of the facts.

Jen:

Yeah.

Justine:

Yeah. So there's a lot of mistakes. So there's a question for you guys.

Marlie:

Yeah.

Justine:

So we don't have the medical records in front of us, but we can assume that this is truthful that there wasn't any documentation. So if we were to look at it, we would also see like no intrauterine resuscitation for category three. None of that. The pitocin was still on. Is that the case?

Jen:

Yeah. I mean, that's my assumption.

Justine:

Pretty good picture, then.

Marlie:

Yeah. So, I mean, they're drafting their pleadings and they have to draft factual statements, right? And so these statements have been vetted by the obstetrician that reviewed the medical records and the nurse expert, whether there's always a question of, well, did it occur and not just get documented? And that's a lot of defense that we see sometimes is that we come in and we have oral depositions where you sit and you ask the provider certain questions. And then you have written discovery where I send, you know, 30 questions to the providers and then they make responses. But if it's not in the medical record and that's what has been pled, we can assume that it's factual.

Jen:

And like you said, Justine, it's, I'm not sure who said it, but this is, I mean, for all of the shoulder dissociation cases that I've reviewed, this is minus the coverup and the decapitation, obviously, like that's, I think what makes this so shocking is the rest of it reads very, you know, I think both Marlee and I are, it's like our human hearts are very sad, but like our more legal or expert side or like just complete recognition, because we've seen this so many times of, you know, there was somebody with maybe some risk factors. There was a tracing that, you know, we don't know how much pitocin we don't know was it tachycystally, we don't know, you know, those sorts of things, but that there was this category three tracing, especially during the second stage, it's not recognized in that. I would say, I don't know, you've done, you've certainly done more shoulder dissociation than me, but of the ones I have done, it tends to be that the premise of the case is that like vaginal delivery was clearly not, shouldn't have been attempted and a C-section should have been called even prior to that C-section or to the shoulder dissociation even happening. And so it sounds like that's sort of what they're leading up to in this one as well, right? As nurses, we know category three for two hours is usually something that we would have recognized and done something. And if we couldn't remedy it, we would advocate for a change in that plan of care.

Marlie:

Yeah. I think that the way that the facts are pled in a, in the way that it's consecutively pled, right? So it goes from like A through I personally, you know, not to criticize, but I think that the information regarding the strips and everything should have come first chronologically. And then the discussion of the shoulder dystocia, because it's very confusing here about the allegations regarding when the nurses should have called for the STAT C-section because they discuss the shoulder dystocia first versus discussing the strips and the issues with the resuscitation prior to discussing the shoulder dystocia, because this is a situation where that should have been addressed first. And I think that that's where the nurses and Jen can correct me if I'm wrong, but that's really where we're looking at the breaches, the breach for the nurses in this case, not necessarily how the nurses handled the shoulder dystocia and we'll talk a little bit about that as well. And I mean, the fact that there's no, we don't have a head to body interval time for a shoulder dystocia. I mean, how do, I don't know, right? The standard of care.

Sarah:

Well, it sounds like it was three years or three years, three, three hours.

Marlie:

Correct.

Sarah:

Like how it was written, I'm like, there wasn't a three hour shoulder dystocia, right?

Marlie:

Yeah. A hundred percent.

Jen:

If you read the doctor's affidavit, he, his timeline is a little clearer. He flips those. His is like slightly more clear. Yeah. Okay. Yeah. And obviously it's not a three hour shoulder dystocia.

Marlie:

Right. And I think Jen and I talked a little bit of that, about that. I think there might, I think perhaps there might have been, you know, more of a failure to descend versus the way that it's pled in the case where it says, let me find the, the baby did not properly descend due to shoulder dystocia. Right. So when shoulders dystocia is occurring, the head is already delivered and the shoulder is stuck behind a pubic bone. So I think that that is a confusing statement, the way that it's, I think that there might have been because this month, and again, the baby was only seven, six, but she was four, nine, 200 pounds and a diabetic. So, you know, this probably was a large baby for her and she probably was having difficulty, you know, getting the baby to descend and go through the cardinal movements, right. But I think that the way that it's pled. So I think that nurses, from my perspective of handling the shoulder dystocia, you know, there's an allegation here about calling for a stat C section during the shoulder dystocia. I think it's more that that should have occurred prior to that, because when you're in the face of a shoulder dystocia, the head is delivered and you're doing the maneuvers methodically that we've been, you've been trained to do. You're not stopping and immediately going to a cesarean section. And that actually is not the standard of care. Right. So I think that that can be confusing because I don't want nurses to think that, okay, in an uncomplicated labor and delivery, right, where there's no risk factors, there's nothing that leading the providers to think that this baby was going to have a shoulder dystocia baby goes into the shoulder dystocia with good fetal reserve. There's no problem with the strips. Like everything is fine until that moment where the head is delivered. My concern with this case is that nurses are going to be like, Oh, I need to be advocating for a stat C section. And that's absolutely not the case.

Jen:

No, you don't want that. That's not the move.

Marlie:

Yeah. And I've heard, like, I've actually gotten DMs from nurses about like, well, wait a minute. Am I supposed to be advocating for a stat C section when there's a shoulder dystocia and the head is delivered? I'm like, no, no, no. You've got to go through your call for help, move into McRoberts, super pubic, continue those maneuvers that are known to resolve the dystocia. And I mean, again, we don't know how long this dystocia was and the standard of care, as far as the provider does change, right? Versus when we've got a shoulder dystocia that most shoulder dystocia are resolved within, you know, 60 to 90 seconds with McRoberts and super pubic pressure alone. Right. But the standard of care does change when we're, you know, at the five, six, seven minute mark. Okay. So there needs to be some understanding here when we're talking about shoulder dystocia, okay, what it is that we're doing and how we're performing our maneuvers during that first five minutes when a baby is going into it without prior concerns, right? And this case is not your average shoulder dystocia. It's nowhere near it. And so I almost hate the fact that the media is just talking so much about how this is a shoulder dystocia case, whereas there was a shoulder dystocia in this, but it's not a shoulder dystocia case. I mean, I think that the point of that is that, you know, it led to other allegations like the decapitation and the concealment and fraud. I think that's where this shoulder dystocia has a place in this case. But as far as the liability of the nurses and the ultimate liability of the doctor, we've got way more going on here that was occurring prior to the recognition of the shoulder dystocia. You know, we've got hours of it versus a typical dystocia where everything looks good and then the head delivers and it's like, oh s—, what are we doing now?

Sarah:

So there's a component with the shoulder dystocia. Obviously that's going to play into this case, the covering up of the decapitation and all of that. But what do you see as the other big components here where we do have a lawsuit related to nursing care and obviously everybody else but for nurses?

Jen:

Yeah. I mean, like we said, we had this category three tracing that was going on. You know, we'll have to see like, was she properly consented for a Pitocin augmentation, right? You're four foot nine. This is your first baby. Do we have an EFW? Do we have, was she properly consented for an augmentation? And I'm seeing that being more and more a piece of lawsuits that I'm involved in is that especially around Pitocin, that there's really a lack of informed consent and nurses don't have to do informed consent. Like that's not a norscopal practice, but AWON, Kathleen Rice Simpson, many people have made it very clear. Like we have a duty to make sure it's been done. So that patient who comes in and you can't just walk in and say, Hey, doctor wants me to start this bag of pit on you. Right. Which is, was very typical when I first became a nurse, just middle of the night. Hey, just talk to the doctor. They want me to start pit where no, we actually have to have the provider talk with them, explain the risks, the benefits, all of that sort of a thing. And then moving forward, just our good nursing care, right. Monitoring for tachycystole monitoring for, you know, oxygenation on the fetal monitor strip with our category two. And then if it moves to a category three and doing those maneuvers, and then if they don't work, advocating for the patient. And so I think that's where people, especially nurses, we've been really told like shoulder dystocia are unpredictable and they're unpreventable. And now we're like, and this can happen where like, right. And so that's where I think Marlee and I were both like nervous to see so many folks piping up so quickly on this case. And really talking about and reinforcing like, Oh, well, these things happen. They're unpreventable. They're unpredictable and not understanding that so much led up to this. And then the other thing with nurses, because if you read the complaint, it names the nurses, but it quickly says very clearly, and the hospital is the one that's liable for them, right. They're an agent of the hospital. So no one's like personally getting sued at this point in it. But the, the standard of care for the hospital is when was this the last shoulder, dystocia training? When was their last fetal monitoring class? Do they have a policy on what, on what is their Pitocin policy saying to the nurses follow it? What do they have a cat two, cat three policy and did the nurses follow it? I've seen hospitals that don't even have a chain of command policy . So how could you expect nurses to do something that the hospital doesn't provide for them? And so nurses see that these six nurses are listed, but they don't understand that it's it, they're the symptom and it's almost always the hospital that's in the system, that's the root of it. And so where the canary in the coal mine, our names are on there. We're, we're held to account and to explain, but it's that why. And so that's where we don't want nurses to suddenly be like advocating for C-sections. We don't want to drive up our C-section rate because of this situation.

Sarah:

Out of fear. Yep. Yeah. Well, and when six nurses are named, they're not officially named in the document, but you know, all six of them, I was reading it, I'm like, all six of them literally never caught a single thing.

Marlie:

Yeah. So, just to pipe in on the, the number of the defendants and who's specifically named. So in lawsuits, we have timeframes to file claims against individuals. It's called the statute of limitations. This was really quick. I mean, this happened extremely quick. I don't even review cases unless I have at least six months before a statute of limitations is about to expire. And this was filed within a month or two.

Sarah:

Yeah.

Jen:

I don't even know how they got the records, got the nurse, because we both know the nurse and I know the doctor. I don't even know how they like reviewed this and got, I don't understand how this time limit was even possible, it was that fast.

Marlie:

Yeah, it takes, and I know it's, it's like making me look bad because my clients are like, what, it's taking so long, you know, but this is very, very, very quick. So it's, that's a little bit unusual, but when you're filing a lawsuit, you, from the perspective of a plaintiff's attorney, you sue everyone that could have potentially been at fault and then you kind of dismiss as you go. So there'll be situations where, Hey, there, we think that six nurses were responsible, but not only for maybe the labor and the delivery and the management of that, but also the concealment because there's several counts, right? So we have, so we have accounts against the doctor who is an independent contractor, not an employee of the hospital, which is why the doctor is sued individually. Then we have the nurses that are unidentified and apart are agents of the hospital and the hospital that's being sued. We have negligence, gross negligence counts for those individuals. We also have a count for fraudulent misrepresentation and infliction of emotional distress. There could have been nurses one through six that are responsible for that count and not necessarily the gross negligence of the management of the delivery. So we don't really know yet. And that, that is in the complaint. It's saying, you know, we are identifying that we believe that these individuals are responsible. We don't have enough information now. And within the complaint, they filed that, but they've also filed things like requests for admission of documents, interrogatory questions, and requests for production of documents. They filed all of that all at the same time. So what that is, is in addition to the complaint, they filed documents to these individuals that they've sued for documentation of certain things, statements, written questions and requests for admissions, which essentially is, you know, states like confirm or deny that this occurred, and then they have to affirm it or deny it. And if they deny it, then they have to give the factual reasoning behind why they're denying it. So all of that has been filed and served upon these individuals. So just because they're six, we don't really know exactly which six are for which count in the complaint.

Jen:

And they can totally get dismissed. I had a case recently in the middle of the deposition of this pediatrician, the lawyer, basically it was a, I think it might've been a shoulder dystocia with a resuscitation doc couldn't get ahold of, didn't get in the hold. So they called, you know, this other doctor who comes in. Well, at the beginning of a case, you just see names in a chart, but during her deposition, they're like, so were you on call? And she's like, no, I just call them cooking dinner. And then the nurse just called and I dropped everything and ran in. They're like, so you just ran in, you weren't on call. You had, you just came to help. Yeah, that's what I do. And he goes, I am so sorry. I sued you. Right. She's just like right in the middle of the deposition, right? Cause you just don't know, you just see names on a chart and you don't always know where they fit in until you get more information. So people are definitely removed all the time.

Justine:

I had no idea any of that.

Jen:

It was really sweet to read that position. Cause I felt the attorney, his name is daddy's like, I'm so sorry. I sued you. And she's like, it's okay.

Marlie:

And it's just a piggyback off of that too. There are situations that occur when you don't, let's say I'm reading a medical record, there's multiple people that could possibly have something to do with this. In my opinion, I think it was, you know, Joe 1. I also have Joe 2. There will be situations as if I sue Joe 1, Joe won's defense is going to be, well, it was really Joe 2. So sometimes you have to protect yourself or the plaintiff by including more people. And then once the actual defenses come in and you know, the theory of their defense, then you can eliminate another one because you don't want to be in trial and have the jury saying, well, why the heck did you sue this person and not the other if they were also a part of the care and this doctor saying really they had something to do with it.

Justine:

Makes sense.

Jen:

I think if we summarize it, we're like, don't read too much into the complaint.

Sarah:

Yeah, it sounds like it. But I think even saying that is so helpful because I mean, I was literally getting my nails done yesterday texting Justine, like, what the heck, what is happening here? It looks like they had a three hour shoulder dystocia. Like, how is this making sense? And then there's like, none of it, like it's, you do, you have to fill in the gaps. And we have a lot of knowledge. And when reading this, it's like, how in the world, how in the world did this even happen? But I think also, like, it sounds like what I'm hearing from you all is that we know and these facts may not be, first of all, they're not likely in order and more often are more like this word cloud of components that play into this case that hopefully we will learn more about now that we're all invested.

Jen:

It's incredibly rare for like, for nurses in general, but especially like the public at large to even look at these things, right? Like she and I look at these things, she writes them. I write the affidavits all the time. So we're our brains are kind of like, OK, OK, OK. You can imagine how shocking it is as a nurse who's never looked at this. I had a nurse that I was hanging out with the other day and she was just saying she's been a nurse for two years. All of her family has been asking her about this, too. And so, right, that's such a new situation for the public to see these things, let alone just nurses. And so I think that's why it seems so shocking and a little discombobulating, right, to make heads or tails of things.

Sarah:

Why would they go to the media?

Jen:

I don't know.

Sarah:

Interesting.

Jen:

I mean, I can speculate, but I don't know if I want to say. 34:48

Sarah:

Well, yeah, we're speculating on this whole. This is all our it's all speculation. Right.

Marlie:

I don't know. You know, I feel like I really think a lot of this now. We talked briefly about informed consent. There was in the affidavits, it's not discussed in the complaint, but in the affidavit, the doctor does reference audio and visual recordings that he reviewed. So there is a video and there is an audio. What that entails, I don't know. But I think that because of how it was handled afterwards, that had a lot to do with kind of press release in this, because I think it it's hard to talk about it without being I'm desensitized to a lot of this because every single thing that comes across my desk is a horrific, tragic situation of a family. And so for me, and I am required to get up in court and talk to a judge factually about this. And so I've had to kind of build myself and Jen has to go and sit, get deposed and get interrogated and cross examined. And so and she also has to do that in a professional way. So for us, it's it's a little less shocking, but I think that it was really how it all unfolded afterwards that probably brought it to that next level of we're going to do a press release. I've never had a press release for any of the cases, and I've had plenty of fetal death, neonatal loss, severe brain damaged children, severely injured mothers, all horrific. But that's mothers who die, maternal death, the whole thing. I mean, it's just horrible. But I think that's probably why this might have been other and other things. I'm not sure. I think the funeral home, the fact that that person has been so vocal about it as well is an added layer. And there's also like hospital requirements to report severe adverse events to the Department of Health, things like that. So I think that there's other layers of, you know, they were required to report something like this to the medical examiners, the public medical examiner. And that didn't occur. So I think there's other layers that might have been missed. And so it's bigger than the providers in this situation.

Sarah:

I think when I when I look at it, like just to simplify from a nurse's perspective, and you can please correct me here, like I'm seeing failure to recognize that the tracing was needed resuscitation and or escalation, potential failure of chain of command, following chain of command and emergent and like activating emergency help when there was concerns. And then but so those two things, I feel like and then the pitocin, the pitocin was on, sounds like the whole time that's concerning and something that needs to be looked at from a nursing perspective that we can learn from. I think the part that is new to me and not that we can't talk about the other stuff, but I think the concealment, what went down, you mentioned fraud. I'm like, is that fraud? Like, and I'm just thinking about the number of times truly I can think of three off the top of my head where I was asked to not say something to the patient, you know, or like, don't go there, you know. And in the moment now, looking back, I'm like, oh, my gosh, what? You know, and so I would love just some like if you both have some input for us on what to look for, what's legal, what's not and why that component might be like or is fraud slash why it's so egregious, you know, and just imagining the nurse in that circumstance, like somebody comes to you and says, you know, we're not talking about this. What do you do?

Jen:

Well, Marlee's better with the legal fraud stuff. I can speak to the nursing standard of care and an oh shit situation. So, Marlee, go for it.

Marlie:

Yeah. So the fraudulent misrepresentation in this case, so there's different elements that a plaintiff has to prove. So when I just kind of wrote down what it is when you're making a claim for fraudulent misrepresentation, the elements that they have to prove. So they have to prove, number one, the provider made a false statement and that when the provider made that false statement, they knew that it was false at the time. So it's not just that it was false, but they knew it was false and that they made that representation with the intent to deceive. And the plaintiff relied upon that representation and it resulted in emotional distress and severe distress. OK, so it's I think what it is, is that they actively concealed the ability for them to really hold their baby, see their baby. And I think that there were probably questions that were asked and they knew the providers knew that the baby had been decapitated and they falsely misrepresented what actually occurred during the delivery. And that is really legally what has to be proved. And I think that if they have the audio and the video and the rest of it and the baby was, in fact, decapitated and the funeral director is willing to come and testify that nobody knew about this until that point. I mean, I think that those elements are going to be met. And so I think from a legal perspective, there's a big difference between and Jen will get into this, a big difference between a nurse not really knowing exactly what happened during the delivery or the cause or what have you and a provider being like, hey, let's not get into it. And then being empathetic with the patient and saying to them, listen, I'm not the right person to discuss this with you. I don't necessarily know if they truly don't know. And escalating it, if they are unaware of how to handle the situation, absolutely escalate it. But if they are actively concealing something or actively misrepresenting knowledge they have, that's when it becomes an individual problem legally for the provider.

Sarah:

That could be as simple as what? Like in this case, like the capitation is very obvious, you know, but like, is that lab results or is like, could that be as simple as like, you know, a test result or a I don't know, like what other circumstances?

Marlie:

Well, I think the question here, too, is, is the severity of the situation and whether or not and Jen will talk about this. But if you're evaluating a patient and the patient doesn't have certain information and you know, as a nurse, that that could cause potential further harm, either physically, mentally, whatever it be, you know, you're withholding a lab result that you know, or withholding something that you know, the patient needs in order to stay safe or healthy, then that's a problem. Right. But that really turns then into more of a standard of care issue than a concealment issue, too, you know, those two aspects. But, you know, I'll have Jen weigh in on that as well.

Jen:

Yeah, so now I'm thinking nurses are like, oh, go ahead.

Sarah:

Well, no, I'm just thinking like, because to bring it broader, right, because like, how often are we going to see this exact case? I hope like this is a once a thing, you know, but I'm thinking like, I'm looking at the tracing and it's category one and the patient has been, you know, laboring for X, Y, Z amount of time and the and the doctor comes in and says we need a C section and makes it sound urgent and concerning. And, you know, literally my last case was you could have an infection and be septic when she wasn't even in labor and was like no core, her membranes were intact and no signs of infection whatsoever, but made it sound like this big urgent thing. Right. Like how much of that is concealment? Like, and it's like this idea of lying to a patient based on knowledge that they have of the baby's fine, you don't have an infection and they gave her no more options. You know, and I know I'm going broad here, but in my head, I'm like, I've never thought of this concealment thing as a potential liability for us nurses. Does that make sense? Sort of what I'm asking, like I'm sort of out of like we have knowledge. We're not telling the patient all the time.

Jen:

Right. OK, so we've definitely so, yes, there's never going to be there's no policy on what to do in this exact scenario for nurses. Right. But we've all been faced with like an holy shit situation, something unexpected, unpredictable, a massive trans that didn't, you know, that's gone so far. We've had I've had an eight minute shoulder dystocia, right. I've you know, we've had a patient with no cranial care come in and she was seasoned, you know, just these more above our normal. And we don't there's no policy for each one of these. But the standard of care is set by each state, but it usually reads something like what a reasonable and prudent nurse would do in a same or similar situation. So what do we do in those crazy, unexpected situations? Right. We call the nursing supervisor. We call, I don't like my manager. I don't think she's a good manager, but I do know a hundred percent that she would. She knows it. She doesn't like her, but what I do know about her is that there has been times at 2 a.m., 3 a.m. that something's gone crazy. And she comes down to handle the what now, like, do we call chaplain? Do we call risk management? Do we call, you know, we have a huddle, we make a plan and that's usually the, and so most, I think nurses, if they think about it, Oh, I've had something else scary or unexpected happen, what do I do there? So no, no nurse needed to go in and be like, look at your baby and be the disclosure. But we do have a duty to make sure that that process is being handled. And certainly being told, do not say anything, no one's saying anything. That really brings in some like ethical, moral and like tomorrow's point, legal, where now it's gone above the like, Oh, the doctor's going to come in and explain your lab results to you. I'm not going to do that. This is no one's going to be doing that for you. And so in your situation that you just explained about someone being lied to about needing a C-section and the nurses saying like they know they don't. Yeah. That's the question we all need to ask ourselves is like, do you say something in that case or not? And every nurse needs to answer that for themselves. And we do need to say something a hundred percent. If we think someone's going to be getting an unnecessary C-section, will you get yelled at, will you get talked to by your manager? Will you not make friends on the unit? Yeah, but I don't know, probably. But we did sign up to be the patient's advocate. We do have an independent duty to the patient and every single nurse practice act describes what to do in situations like that, which is going up your chain of command. Most hospitals have something like team steps. They've got high reliability, something that's for you. Stop, you know, you're just a cuss. I'm uncomfortable. I'm concerned. I'm uncomfortable. This is a state you break. And so our hospitals have given us those tools and we're still so like, don't really trust that we can use them. But unfortunately, we're seeing more and more and more how dangerous a silent nurse is.

Marlie:

Yeah, and it breaks my heart from legal perspective when I hear about nurses feeling as though they can't advocate because there's going to be either retaliation against them from either upper management or certain OBs will refuse to deliver babies with them and what have you. And that breaks my heart because the failure to exercise a chain of command or question a physician's decisions is a viable cause of action. And, you know, if it causes injury to the mother and the baby, so providers will bully nurses and be like, well, your license is on the line. Well, your hospital and as Jen was talking about system failures, as far as the hospital protecting the nurses, hospitals should be protecting the nurses when it comes to instituting chain of command and speaking up and advocating for the patient, because at the end of the day, bottom line is that if the nurse is advocating for the patient and the patient has, and it doesn't have an out adverse outcome, the nurse is protecting the hospital. And so the hospital needs to be protecting the nurses, right, from poor care or improper physicians decisions. And that is really what they should be doing, because the in most situations, the doctors are not in labor and delivery are not employees of the hospital. So and again, the standard of care is not what the physician is telling the nurse to do, right? The standard of care is what an average qualified nurse would do in similar circumstances. So if the doctor is telling you to do something that you know is below the standard of care from your practice and your advocating of the patient, that's a problem. And that needs to be addressed. And that needs to be exercised, the chain of command period, regardless of whether or not the provider likes it or not.

Jen:

Right. It is getting harder and harder to be a nurse. And but we do need to understand that and be make that decision well before you're faced with that decision. Right. Just like sit down. Like, I mean, basketball players, they train so much in their minds right before even a game. And it's like, we don't we're like, oh, we don't want to do it. We don't want to think about it. But I mean, I think if everyone was supposed to like pause the podcast, like think about that last really scary situation that you knew you wanted to speak up and you didn't and then then play it out, we have to develop that that muscle memory of doing it something scary because our outcomes are suffering. We're not getting better. And you don't want to have to decide what you're going to do when you're finally faced with what that situation because we all will be right. We've all already been faced with those situations. And, you know, I do see a lot of folks on the Internet talking like, oh, my God, you know, this is this we are talking about a family and we also are talking about some individual nurses, people, and I don't know how well they're sleeping right now. So

Justine:

Like I'm excited that it's it went viral in the sense of we talk about nurses saying they want to lose, you know, I don't want to lose my license. I don't want to lose my license all the time. And so this could change the narrative of like, well, I have to advocate and I have to tell the truth because I don't want to lose my license. And, you know, that's a positive in that sense because your points are so right. And Marlee, I know you mentioned on your stories today of malpractice insurance for nurses. I don't know if you wanted to mention that because I know that's a big thing.

Marlie:

So when it comes to malpractice insurance for nurses, number one, I really, again, every time somebody says to me I'm being bullied by someone or someone's telling me I'm going to lose my license, that is extremely rare, extremely, extremely rare. So even in this situation, this is a civil lawsuit. Even if I wanted to, I cannot request in my damages that the nurse lose her license. I am requesting monetary damages in this civil action or any civil medical malpractice action. It's for money damages. The only board that can do that is the nursing, the licensing board of the state of nursing. Okay. That's a separate action. And then the third action is a criminal. So there are three different processes and they all have three different potential penalties. Okay. Nurses are, it's extremely, extremely, extremely rare that a nurse is going to lose their license for a medical malpractice case. I cannot stress that enough. I cannot stress that enough. It just doesn't happen as frequently as people want to say that it does. So that's number one. Number two, I do not know or go shopping for potential people to sue based on whether or not they have excess malpractice insurance or not. Okay. I review the medical records. I see who is involved. If the standard of care is breached, the standard of care is breached. I cannot look at the medical records and decipher, okay, this nurse has excess coverage. This nurse doesn't. So therefore I'm going to sue this nurse. That's not how it works at all. Most of the times I don't even get that information until I'm halfway through the discovery phase and I'm asking what the policy limits are for that case. So that's another kind of myth that I hear. There's no target on your back if you have excess coverage. If you are employed by a hospital and you are acting within the scope of your employment, they will be on the hook for covering you in a civil medical malpractice case. You are an agent of the hospital and they are required to provide the cost of defense. And if there's any recovery, you can ask specifically for a copy of the policy. You can say, hey, I want to keep this in the file so that I know what's covered, what's not covered. Okay. That is typically and most often completely sufficient. And if you are a hospital employee and you have your documents, you know that they have insurance, you're going to be covered and you're going to be fine. If you're risk adverse and everybody has different peace of mind, what's going to bring them peace of mind? It's extremely cheap to get additional nursing insurance. You have an idea of what your assets might be. Fine. Go ahead and get it. It's also going to provide you coverage for, if you ever or rarely end up going before the nursing board. Okay. Because your hospital's coverage is not going to represent you in a licensing action. And then finally, no one's going to ensure you for criminal acts. So I saw there was like this question about, you know, if there's a criminal lawsuit or what have you, people don't ensure anybody, criminals, nurses, they're just not going to ensure it. There's, it doesn't happen. So if there's ever the drastically unlikely event that something ends up into a criminal investigation that, that you're just going to have to pay for, for the cost of defense, but it's really a personal decision. It's not necessary. And again, you're not going to have a target on your back if you do or don't from the perspective of the plaintiff's attorney.

Jen:

Right. I did a bit of research because it was like that. Yeah. It's that question that comes up every single time. And I found it really challenging to do any sort of like meaningful dive on this, on the internet, because almost exclusively what's out there information wise on the internet is from the insurance companies who were selling this or people who have like a financial incentive towards this. So, but you're also never going to find anyone who's like, do not get it right. Cause it is so cheap and you know, no one's going to be the one that says it and then have that person be like, you told me not to get it. And now I'm going before the board or whatever. But like Marlee said, I've never, I've actually, I've never known as an expert. I don't think it's ever any of the nurses who have ever been in any of my cases have had it that I've known of. And I don't know of any that have had licenses pulled. I know in this case, after the press conference, the police in this area said that they were going to open an investigation, but not about the medical care, about the coverup, it sounds like.

Marlie:

Yeah. So, I mean, the only other thing that I would say is that some States have what's called charitable immunity against hospitals. So some States, your recovery or the plaintiff's recovery is limited based on the fact that the hospital is a charitable organization and there's a cap on damages. In those States, you know, there are nurses that get additional coverage or excess coverage because they know that the cap is grossly or severely under whatever the potential damages are. But again, I have never personally of the hundreds of cases that I've participated in, never A, gone after a nurse individually outside of the scope of her employment and C tried to seize any of her personal assets. That does not happen. And secondly, I have never had a nurse get suspended, let alone a license being revoked from a medical negligence lawsuit that I filed. So that just goes to show like, this is, this just doesn't happen.

Justine:

Right.

Marlie:

That frequently. The board really cares about dishonesty, recklessness. So Jen was talking about the average qualified labor and delivery nurse under similar circumstances. We're not entitled by law to the best care. We're just entitled to that average qualified care. And then a nursing board or even a medical board, it's typically minimal. So whereas a civil lawsuit, you're looking at what the average provider would have done in that situation, a medical board, when they're considering a suspension or revoking a license, they're looking at a minimal standard. So it's even like, would anybody, would any provider, whether it be a nurse or an obstetrician or whoever it is that the board is hearing, do this. And if they wouldn't, then you're in the territory of like reckless disregard for patient safety. They really care about like, are you being reckless here versus was this a medical error? Did you make a mistake? And in those situations, you're going to be fine. Also a lot of patient abuse. So these are reasons why people lose their license. Patient abuse, drug abuse, sexual misconduct, repeated offenses, things like that. You know, I just listened to the retrievals podcast and she was swapping fentanyl with saline and pocketing the fentanyl, this particular nurse. She was suspended and had her license reinstated. So, I mean, that just goes to show you how egregious a behavior can be. And it wasn't even revoked. It was suspended. And then she did get her license back. And then she subsequently withdrew her own license, probably because she had a relapse or whatever it is, but they reinstated her license. So, I mean, there's, you have to be seriously falling below minimal care, reckless disregard, or doing something that is criminal and illegal, like drug abuse, patient abuse, sexual misconduct.

Jen:

Yeah. And Oregon, I think I mentioned this the last time I was on your podcast, they actually sent out a newsletter and paper still to every licensed nurse in the state. And it tells you who got their license suspended and exactly what they did. And so you can read it. And it's always like everything that Marlee just said, it's like, you can go on their website right now and even look it up and see what's going down in Oregon. But yeah, like taking medications and coming to work impaired, violating, like taking patients' identity. And there's one, I'm just reading that they like, yeah, they stole their identity, basically, you know, being impaired, going outside of the scope of nursing practice and those sorts of things. So it has to be pretty egregious. Nursing, Board of Nursing doesn't want to take people's licenses. They also know we're in a shortage. So.

Marlie:

You know, just one last thing, since we're on the topic of like civil cases and criminal cases and all that stuff, you know, I'm always very careful about the language that I use. So we don't prosecute, I don't prosecute nurses, I don't prosecute doctors. That's not the term. I file lawsuits, I'm the plaintiff, I'm filing a lawsuit against for negligence. Similarly, you don't, when a jury comes in and reads a verdict, we're not finding nurses and we're not finding doctors guilty. That's not the proper term either legally. So we don't prosecute, that's a criminal term. We don't find them guilty, that's a criminal term. It's either they were negligent or not and did that cause harm to the patient. So I'm always kind of careful about how I'm talking about it because it increases anxiety, it increases fear when we're using things like criminal words.

Sarah:

So based on this case, when you're looking like high level, the both of you, what advice would you want to leave these nurses with as they're watching the news, seeing the TikToks, reading the whatever comes out about it? What do you want them to take away?

Jen:

So I, for me, it would be just the things that keep patients safe, which is, what was your last shoulder dystocia drill? Right? The standard of care is that we are doing those every single year, have providers been participating in those also? I did in my clinical educator job, I was really shocked at that there were many providers who left residency, not knowing posterior arm sweep or something like that. Like it is a rare thing and they don't always are able to practice with that. Your bigger facilities, there is actually a doll, a mannequin for shoulder dystocia drills that's got a sensor in the neck that will tell exactly how much force and if the force is being placed wrong. And I don't know if it's Lairdoll, I think it might be Lairdoll, but your bigger facilities are probably, your bigger systems probably have that for shoulder dystocia practice and make, I had a midwife who was shocked at how much force she was putting on a baby, but give them those numbers. Look at your policies. Do you have a cat two, cat three policy, a PIT policy? And have you actually looked at it? Is it actually up to date? And do you actually have a chain of command policy and do you guys all know it? But sitting down and talking with your teams, with your nurses, with your colleagues, with your managers and just amongst yourselves making that pact that you will speak up for your patient if you're ever faced with this.

Marlie:

Yeah. And from my perspective, I want to reiterate the importance of training because that is a question that I ask in my, to every single provider when I'm suing them is when was the last time you participated in a shoulder dystocia drill, right? And the doctors, every single one I have deposed has never participated in a simulation or a drill or whatever. It's always been, they learned it in residency and then, you know, when it comes up in their practice. Now, my point about this is because they argue, well, it doesn't, we don't know if the training is going to reduce the amount of injury, right? My point always is, okay, this is a unpredictable, unpreventable obstetrical emergency. That's what they tell me when I'm deposing them, right? You are training because it's unpredictable. You're training because it's unpreventable, because you know that it could occur or it could not occur. You're not training for shoulder dystocias that are resolved within 30 seconds with McRoberts and Super Pubic. And so, I think what happens is that people or providers might get comfortable thinking that that's going to resolve all the shoulder dystocias, and it's not. You know, you're not training for that. You're training for better communication with your team. You're training for a methodical, utilizing these maneuvers in a methodical, calm, as calm as possible understanding, but reducing that anxiety, right? And communicating as a team, you're training for the situations where you have to do an internal rotation maneuver. You have to do a posterior arm. You have to put the mom in gaskins. You're training for those situations, right? And if you haven't ever done a rotation, I just finished a case where the first time she had ever done a posterior arm maneuver was 16 years later. You know, she had never done it before. The first time she had ever done it was on this particular patient. So, I always just try and reiterate that. Firefighters train to run into burning buildings where they know there might be death, right? They don't do that because they're running into buildings every month or even every year that are on fire and there's somebody that they need to save, you know? So, I just, I really like to highlight that. That's just based off my experience on the answers that I receive when I'm asking people. This is not normal. That's my other takeaway. This is not a normal situation. This is not a normal shoulder dystocia. I've deposed people who literally wrote the practice bulletin in ACOG, the shoulder dystocia practice bulletin in ACOG. I have deposed and this is something that he has seen and even read about two other times in his 35 years and review of the hundreds of thousands of shoulder dystocia data that we have. This is not normal, okay? So, don't be scared. The other thing is don't change the standard of care based off of speculation that you've read or change your practice, right? Do what Jen is saying. Freshen up on the standard of care as far as fetal monitoring. Freshen up on shoulder dystocia, things like that. Don't make any change in what it is that you're currently doing based off of incomplete factual situation that we really don't really know much about.

Sarah:

Awesome. Well, thank you both for being here and sharing your expertise. I feel like we could go on and on and on. I still have open questions and, you know, this opens up multiple can of worms on other topics and so more to come just wherever you are and make sure you follow the both of you. If you're looking, I'm just listening to all of this, I'm like if you're looking for more information, more education, we always come out of literally every single podcast being like, well, we need to just know more and do better. And so if you're looking for more, you can check out Bundlebirthnurses.com. We have lots of classes over there including in our mentorship program, we talk shared decision making. There's legal included in that. There's fetal monitoring. There's shoulder dystocia on high risk stuff. So if you haven't done our mentorship program, I'm going to suggest that to you. And then we also do have a legal class that talks you through what would happen if you were deposed. What are the steps? What actually goes down and what is required of you in the process defining plaintiff and complaint and defendant? And, you know, if it went to trial, what can you expect there and gives you tips for going to trial? So honestly, by the end of that class, I took it and I was like, well, fine, depose me. Like I'm ready. And so it's not going to give you legal advice if you are, but in preparation, if this is an area of stress for you, take that class and you'll walk away being like, okay, I know what to expect. It's not this unknown world. And I'm ready also to protect myself in the process. I know Jen also has a class, the legal and prudent one. And that's also another resource to you. And so if this is an area of stress, if this is a prompt to you where you're like, oh my gosh, I don't know, answer those questions. We are responsible for our profession. We are responsible to be experts for the sake of the families that we care for. They are expecting us to be those experts, to know what to do, to go up the chain, to advocate for them when they're walking into the biggest day of their life potentially, and one that does hold risk. And so in response to all of this, take a deep breath, go decompress, know that this is a rare circumstance, but also take this as a warning to all of us to say we're responsible and what we do really matters and what we do carries a lot of weight. And so we don't want to take that lightly, fill your brains with that knowledge, continue to push into those areas of discomfort, advocate for those policy updates and those drills. And together we will make a better world for our laboring families.

Justine:

Thanks for spending your time with us during this episode of Happy Hour with Bundle Birth Nurses. If you like what you heard, it helps us both. If you subscribe, rate, leave a raving review and share this episode with a friend. If you want more from us, head to bundlebirthnurses.com or follow us on Instagram.

Sarah:

Now it's your turn to go and take a deep breath, get out in nature, walk around and rest your nervous systems. We'll see you next time.