Electronic Fetal Monitoring and Malpractice

Electronic fetal monitoring (EFM) is a process under which an ultrasound device is used during labor and birth to record the baby’s heart rate, and sometimes mother’s contractions. The EFM machine produces a written graph of the baby’s heart rate beat by beat throughout the time the machine is attached to the mother. EFM can be used intermittently during labor or continuously. Introduced into U.S. obstetrics practices in the 1960s, EFM is relied on by many obstetricians to determine how the unborn baby is reacting to the mother’s contractions.

The purpose of EFM is to detect fetal distress on the baby from the delivery process and prevent brain damage or death of the baby. If the baby’s heart rate slows, or decelerates, during contractions, the obstetrician can decide whether to perform an emergency Cesarian delivery or other immediate intervention. Because EFM provides a written history of the baby’s heart rate during labor, EFM has become the basis for numerous obstetric malpractice cases alleging “failure to monitor.” Likewise, the written reports — or EFM strips — usually become an essential part of an obstetric malpractice case.

In an obstetric malpractice case claiming failure to monitor, the critical issue becomes whether the obstetrician acted reasonably in the decisions he or she made with respect to what the EFM strips showed. To make the reasonableness determination, experts for both sides examine the EFM strips to assess liability. Experts for the plaintiffs will claim that there was a certain point during the labor and delivery during which the obstetrician should have intervened in order to avoid the outcome that was the basis for the lawsuit. Experts for the obstetrician will claim that the EFM strips did not indicate fetal distress and thus did not indicate that intervention was warranted. Conversely, experts testifying for the obstetrician may claim that by the time the EFM strips showed the fetal distress intervention would have been futile.

In addition to proving that an obstetrician acted unreasonably in response to the EFM results, a plaintiff in a failure to monitor case must prove that the failure to respond to the EFM strips was the cause of the injuries alleged. Establishing this proof is not always easy. Increasingly, studies have indicated that cerebral palsy and other neurological problems are often caused by something other than the birthing process. Researchers are unclear as to what impact decreased heart tones in a fetus during the mother’s contractions have on the baby’s neurological well-being.

Because the stakes in obstetrics malpractice are very high, the reliance on EFM strips to establish liability will likely continue. Plaintiffs will need to refute studies that show that EFM does not improve the outcome of deliveries involving fetal distress. Obstetricians will need to refute written evidence contained in the EFM strips that show, for example, that the baby’s heart rate decreased and that no immediate action was taken.