By Meredith Cohn, The Baltimore Sun
6:17 PM EDT, July 14, 2012
When a jury ordered Johns Hopkins Hospital to pay $55 million to a Baltimore family whose newborn was brain-damaged, the case hinged on what doctors and nurses did in the two hours before birth.
But the jury never heard about the nurse midwife trying to deliver the baby at home during the half-day before the mother arrived by ambulance at the emergency room because of what court documents called "fetal distress."
Evelyn Muhlhan's license was suspended by the Maryland Board of Nursing for her alleged actions during that delivery and four other home deliveries over three years. In one of those cases the baby died, according to the board, which has not completed its investigation.
"The question of whether Ms. Muhlhan was negligent is absolutely irrelevant to determining whether Hopkins was negligent," lawyers representing the family successfully argued to keep information about the midwife from jurors, according to court records.
Information on the suspension would prejudice the jury, the lawyers said.
Rebecca Fielding and Enso Martinez sued Hopkins in February 2011 in Baltimore Circuit Court, alleging that their son Enzo, now 2, was deprived of oxygen to his brain as Fielding waited for a C-section at the hospital. The baby was diagnosed with hypoxic-ischemic encephalopathy, which causes permanent and severe cognitive delays. The $55 million judgment is one of the largest malpractice awards in state history, and if it stands, the family will receive $29.6 million after a state cap on damages is applied.
Whether the baby would have fared better in a hospital from the start is not known, though court records show that was Hopkins' contention. The hospital said it will appeal the award.
The nursing board will hold private hearings to determine whether to permanently revoke or to reinstate Muhlhan's license. The board did not respond to several inquiries, so the timing of a hearing could not be determined.
Muhlhan could not be reached for comment by phone or email or through a visit to her home. Her legal counsel also could not be reached.
Malpractice cases rarely go to trial, typically being dismissed or settled. The public details of this case provide fodder for both sides in a growing debate about when it's safe to deliver babies at home.
"There wasn't a shred of definitive evidence that showed anything that happened at home resulted in any injury to the child," said the family's attorney, Gary A. Wais, in a recent interview. The family did not sue Muhlhan and has taken the baby to see her since the birth in March 2010, he said.
Supporters say midwives are unfairly blamed and targeted in a state that has among the nation's most restrictive laws governing home births. Unlike many states, only certified nurse midwives, and not certified professional midwives with no nurse's training, are allowed to perform home births in Maryland.
Only three or four nurse midwives in Maryland currently deliver babies in homes, though about 220 are certified in the state and mainly deliver in hospitals, according to Jeremy Galvan, a Hagerstown paramedic and president of Maryland Families for Safe Birth, which works to expand the number of professionals able to perform home births.
Galvan said he supports peer review and punishment of midwives who make mistakes but is unsure that Muhlhan will get a fair appraisal by the nursing board. The board, as well as state health officials and the state's physicians' society, oppose loosening home birth rules, he noted.
"Doctors have this tendency, even if the midwife does exactly what she's supposed to do, to say if they need to go to the hospital there was failure somewhere," Galvan said.
When Kate Lynch hired Muhlhan to help her deliver at home five years ago, the midwife made sure Lynch understood that if there was something beyond her abilities that she would take the woman to the hospital near her Frederick home, but the delivery was easy. The experience was so positive that Lynch recommended Muhlhan to friends and became a doula so she could support other women who want home births. She has worked with Muhlhan several times, though not since the midwife's suspension, she said.
Muhlhan has been advertising her services as a doula since the suspension, able to assist home births with another midwife. She has attended 500 births in 26 years, according to her website.
Muhlhan's suspension has made the task of finding a legal midwife for home births in Maryland much harder, Lynch said. Some might be resorting to illegal midwives, she said, "which isn't good for anyone, the midwives, the mothers or the babies."
"People hire midwives and doulas because they feel like they have absolutely no control over their birth experiences," Lynch said. "Women don't feel like their doctors are on their side. They get pushed into doing things they really don't want to do. They're told they have no choice."
Complaints against midwives should be investigated, Lynch said, but she believes regulators are "hunting people and making issues where there aren't any."
When hospitals complained about Muhlhan, the Board of Nursing responded with the suspension.
In the Hopkins case, the nursing board said Muhlhan failed to keep proper labor and delivery records and did not properly treat potentially dangerous bacteria or document that the mother understood the risks of refusing antibiotics. The board said she performed an unnecessary surgical procedure, inappropriately applied pressure to the mother's belly to hasten delivery and improperly administered a drug to stimulate labor and did not document its effects.
The board's suspension order, dated October 2011, also said she had no collaborative agreement with a doctor or an approved plan to deliver at home, as required by Maryland law.
"The complaints regarding her practice involve her incompetent, negligent practice during home deliveries resulting in serious complications for the mother and/or death or a poor prognosis for the infant," the suspension order said. "Her practice shows a blatant disregard for the laws and regulation governing her practice as a [certified nurse midwife] and reckless disregard for the health, safety and welfare of her pregnant patients."
Johns Hopkins was not allowed to present information on her suspension during the trial. The jury heard about some of the treatments provided by Muhlhan but not that the nursing board or other experts hired by the hospital's defense considered them violations of the standard care that should be given to patients, according to the court record.
That included how Muhlhan administered the labor-stimulating drug Pitocin. According to court records, she gave it in intramuscular shots when it is supposed to be given slowly through an intravenous drip with monitoring. Published side effects include brain damage and seizures, and Hopkins doctors believe this, along with prolonged labor and other missteps at home, is what injured the baby.
"I feel strongly that the care rendered at Hopkins was completely appropriate, and I believe all the injury that unfortunately occurred happened while the patient labored at home," Hopkins attorney Donald DeVries said in an interview.
However, the judge decided to exclude information on Muhlhan's suspension and expert testimony on standards of care, agreeing with the family's lawyer that it would prejudice the jury.
The family's attorney said the baby would require expensive care, and the family rejected an initial settlement offer from Hopkins as too low. The plaintiffs' medical experts said the harm was done at Hopkins while the mother waited for a C-section, a delay the hospital insisted in court was appropriate to run tests on a previously unknown and "uncooperative" patient.
A doctor not involved in the case said families rarely blame the midwife or themselves after home births go wrong. They tend to go after hospitals, which carry malpractice insurance, said Dr. Amy Tuteur, a Harvard-trained obstetrician who no longer practices but writes a blog that challenges home births.
Home births make up fewer than 1 percent of deliveries in the United States, though the appeal is growing primarily among upper- and middle-class white women, Tuteur said. There were about 500 home births last year in Maryland.
State records show that among all deliveries in and out of hospitals, 30 birth injuries were reported in 2010 and 24 in 2011.
A 2011 British study found that the risk of serious complications during home and hospital births was low and about the same, which home birth supporters point to as evidence of safety. But opponents say that most women at high risk for complications deliver in hospitals, meaning that the statistics are not comparable.
Lisa Walters of Westminster thought she was a low-risk mother when she chose home births for four children and hired Muhlhan. Now she wishes she had known more about the midwife and the potential for complications.
She'd had two easy births at the Naval Medical Center in Bethesda, and three of her home births also went smoothly. Muhlhan didn't even arrive in time for two of them.
Then came baby No. 6, who also came quickly and easily but turned blue shortly after birth. Muhlhan called for an ambulance and tried to resuscitate her, Walters said. The baby went to two hospitals before being taken to Johns Hopkins, where she was put on a breathing machine. In October, the month Muhlhan's license was suspended, the baby was removed from life support and died.
Muhlhan was not accused of wrongdoing, and the case was not included in the suspension order. The death cited by the Board of Nursing had occurred three months before. In that case, the board alleged that Muhlhan had delayed transport of the mother to a hospital despite signs of fetal distress. The umbilical cord was around its neck and the baby was stillborn, the board said.
In the other three cases included in the Muhlhan suspension order, the board cited violations that included working without a collaborating doctor, attempting home births on women with risk factors such as obesity and hypertension, lack of documentation, and allowing protracted labor. In one case she was cited for attempting to remove a placenta outside a hospital. All of the cases were based on complaints from health care facilities, and none of the patients was identified.
As for Walters, she now supports tighter restrictions on home births.
"I'd become complacent because all my births were so uneventful," she said. "But there's no such thing as a no-risk delivery."
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