In this blog, I’ll be reviewing the common allegations specific to obstetrical triage.  I’ll also review the incidence of obstetrical triage, the sources of recommendation specific to the use of standardized obstetrical triage acuity tools, and offer an introduction to the Maternal Fetal Triage Index (MFTI):

Common Allegations Specific to Obstetrical Triage:

  • Failure to perform a medical screening exam
  • Failure to perform a timely assessment of the fetus
  • Delay in completing a medical screening exam
  • Failure to have a policy delineating conditions that require a bedside evaluation by an obstetrical care provider prior to discharge following a medical screening exam by an obstetrical nurse
  • Failure of the provider to perform a bedside evaluation for an obstetrical patient with a high risk medical or obstetrical condition
  • Discharge of a patient without confirming fetal well-being
  • Discharge of a pregnant woman who is unstable for discharge
  • Failure to meet all aspects of the Emergency Medical Treatment and Labor Act (EMTALA) regulations in assessing, treating, and discharging a pregnant woman who presents for care

Incidence of Obstetrical Triage:

According to the American College of Obstetricians and Gynecologists, ACOG (2020), obstetrical triage exceeds the overall number of hospital births by 20–50%.  Up to one third of evaluated obstetrical patients will not deliver. These obstetrical patients will be discharged home, or transferred to another unit following initial obstetrical evaluation.   In addition to labor evaluations, obstetrical patients commonly present for (but not limited to) evaluation of preterm labor, preeclampsia, decreased fetal movement, preterm premature rupture of membranes, vaginal bleeding, and acute abdominal pain.  Critical conditions such as motor vehicle collision injury, large placental abruption, or seizure, are less common, but require immediate triage, assessment, and management (ACOG, 2020).

Recommendations for Standardized Obstetrical Triage Acuity Tools:

ACOG recommends that women should be cared for according to triage acuity rather than by time of arrival.  Historically, women have been evaluated on a first come, first serve basis when presenting to the labor and delivery unit (or, obstetrical triage unit).  This method didn’t support timely identification of urgent or emergent obstetrical events (AWHONN).

Several obstetrical triage acuity tools have been developed to classify patients based on the urgency of the patient’s condition, often using a five-level system. These tools have increased the proportion of high-acuity patients being seen urgently.  Several of these tools have been tested for content validity and interrater reliability and may be used to improve quality and efficiency of care and guide allocation of resources (JOGNN, 2015).

Many professional organizations recommend that hospital obstetrical units develop triage protocols based on local conditions, resources, but also informed by evidence-based decision making. ACOG recommends the validated algorithm, the Association of Women’s Health, Obstetric and Neonatal Nurses’ Maternal–Fetal Triage Index (MFTI).

The Maternal Fetal Triage Index (MFTI):    

The Association of Women’s Health, Obstetric and Neonatal Nurses’ (AWHONN) implemented a Maternal Fetal Triage Index (MFTI) which serves as the first obstetrical acuity tool developed by a professional society for use across the United States.

The MFTI serves as an acuity tool (scale) that standardizes obstetrical triage and assists providers and nursing staff to prioritize urgency for provider evaluation and promotes effective multidisciplinary communication. 

The MFTI evaluates maternal vital signs, fetal heart rate, presenting condition, status of labor, fetal movement, current obstetrical, medical and surgical history. 

The ultimate goal of utilizing this tool is to improve patient safety and care.  These improvements will assist in mitigating the common allegations associated with obstetrical triage medical malpractice cases.  The elements of the MFTI prompts timely medical screening exams, with the inclusion of fetal assessment and evaluation of current history that supports risk stratification of the patient and fetus.  Based on the risk assessment, the tool offers clinical guidance specific to follow up care.     


American College of Obstetricians and Gynecologists (ACOG) 2020. Hospital Based Triage of Obstetrical Patients, Committee Opinion, #667.

Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN)

Ruhl C, Scheich B, Onokpise B, & Bingham D. 2015. Content Validity Testing of the Maternal Fetal Triage Index. J Obstet Gynecol Neonatal Nurs. 44(6):701-9. doi: 10.1111/1552-6909.12763.

P.S. Comment and Share:  What is your experience in representing an obstetrical triage case?  During case development, did you identify the use of an obstetrical triage acuity tool?


All adverse outcomes cannot be prevented; however, defensibility is strengthened when care rendered is consistent with standards of care.

Olympic Cool-Cap System, Natus Medical Inc.

In this blog I’ll provide a brief overview of Hypoxic Ischemic Encephalopathy (HIE) neonatal brain injury.  I will review the definition, the incidence (U.S. and worldwide), associated complications, possible causes, and recommended treatment.  I will also share possible defenses to consider when developing a HIE neonatal brain injury case. 

What Is It? HIE neonatal brain injury is injury to the brain as a result of hypoxia.  Hypoxia is a deficiency of well oxygenated tissue.  This can result from a combination of insufficient blood flow and/or decreased oxygen levels. 

How Common Is HIE? HIE is the leading cause of brain injury in the perinatal period.

  • Occurs in 1 to 8 of every 1,000 live births in the United States
  • HIE causes 30% of cerebral palsy cases in the United States
  • HIE causes 23% of neonatal deaths world-wide. The fifth leading cause of deaths worldwide in children under 5 years of age (World Health Organization, 2020).

Complications of HIE (including, but not limited to…): cerebral palsy, epilepsy, mental retardation, visual impairment, hearing impairment, learning disabilities, cardiac arrest, death.

Causes (including, but not limited to…) of HIE neonatal brain Injury: (literature suggests 70-80% of HIE neonatal brain injury cases are not preventable)

  1. Antepartum and Intrapartum Events – placental abruption, umbilical cord prolapse, uterine rupture, acute blood loss (maternal hemorrhage), infection
  2. Maternal Underlying Risk Factors – hypotension, hypertension, placental vasculopathies, insulin dependent diabetes
  3. Neonatal Risk Factors – congenital heart disease, pulmonary disease, severe apnea, patent ductus arteriosus, hypoglycemia, hyperglycemia, meconium aspiration syndrome, infection

Treatment:  Therapeutic hypothermia, or induced cooling, has been shown to reduce death and disability in many HIE cases.  Reduction in the core body temperature reduces the brain temperature resulting in neuroprotection.  Therapeutic hypothermia is the standard of care for infants who are diagnosed with moderate to severe HIE following birth (no later than 6 hours of life) and who meet specific criteria per standard of care adopted by organizational policy, procedure, and order set. 

*Sarnat Staging System is the standard of care to grade severity of HIE

Cooling can be done on the whole body, or through a cooling cap placed on the head.  The infant may need other medical interventions to support their organs or to treat seizures.

Infants who experience HIE may require early intervention therapy services after discharge.  These include services from a neurodevelopmental pediatrician, physical therapist, occupational therapist, speech therapist, feeding and swallowing therapist, and/or a pediatric neurodevelopmental ophthalmologist.

Possible Plaintiff Allegations for HIE Neonatal Brain Injury:

Failure to transfer mother to tertiary care center (higher level of care)

Failure to or delay in transferring infant to Level III NICU for hypothermia therapy

Failure to attend or delay in arrival of a NICU team to a high-risk delivery

Failure of medical staff to recognize and treat neonatal seizures

Failure of Midwife to have appropriate resuscitative equipment and personnel for home delivery

Failure to follow hypothermia treatment protocol

Possible Defenses for HIE Neonatal Brain Injury:

The infant did not meet criteria for hypothermia protocol

The manifestations of the brain injury were metabolic or genetic in nature and not a result of HIE

The infant was not stable for transport to a higher level of care

The mother was non-compliant with regimen for high-risk pregnancy conditions

The mother had no prenatal care

Synthesis of Data and Case Development:  Knowing which relevant maternal and infant medical records to request and what questions to ask are essential.  Having an awareness of standard physician orders, and standing nursing orders will support the development of a case.  A strong understanding of the electronic medical record and documentation requirements, as well as standard laboratory and diagnostics ordered will support case development. 

Below are some clinical areas of focus for case development:

  • pathophysiology of fetal monitoring and fetal strip interpretation: identification of fetal hypoxia
  • acid-base balance: identification of fetal and/or neonatal metabolic acidosis
  • newborn Apgar scoring: identification of the presence of birth asphyxia
  • gestational age assessment: evaluation of the appropriateness of implementing hypothermia treatment
  • staging and classification criteria for HIE: identification of the level of neurological compromise, identification of eligibility criteria of newborn for hypothermia treatment
  • hypothermia treatment: identification of treatment as the standard of care, criteria for treatment, treatment modalities, procedure, staff competencies and continuing education

Perinatal Safety and Professional Liability: All adverse outcomes cannot be prevented; however, defensibility is strengthened when care is consistent with relevant, current evidence-based practice recommendations and standards of care. 

P.S. Comment and Share: What were your successes and challenges working through a HIE birth injury case?


Douglas-Escobar & Weiss. (2015). Hypoxic-Ischemic Encephalopathy: A review for the clinician. JAMA pediatrics. 169(4):397–403. doi:10.1001/jamapediatrics.2014.3269 

Simpson K.R., & Creehan P.A. (2020). AWHONN’s Perinatal Nursing. 5th edition. Lippincott Williams & Wilkins

World Health Organization. (2020). Newborns: improving survival and wellbeing. https://www.who.int/news-room/fact-sheets/detail/newborns-reducing-mortality

World Health Organization. (2022). The top 10 causes of death. https://www.who.int/news-room/fact-sheets/detail/the-top-10-causes-of-death


Facts found within the electronic medical record (EMR) and electronic health record (EHR), or missing from either source, can strengthen or weaken a medicolegal case.  Having an understanding of the EMR and EHR is crucial to the discovery process.   In this blog, I’ll be addressing the differences between the EMR and EHR.  I will also share EMR and EHR elements to consider for discovery. 

Differences Between the EMR and EHR: The EMR is an electronic record of health-related information on an individual that can be gathered, stored, managed, and consulted by authorized clinicians and staff within one healthcare organization.  The EHR is also an electronic record of health-related information on an individual, however, it must conform to nationally recognized interoperability standards.  The EHR can be created, managed, and consulted by authorized clinicians and staff across more than one healthcare organization (McBride et al., 2019).

Discovery: Discovery involves procedures for obtaining information (admissible to trial) from other parties, and witnesses prior to trial. 

Objective: The purpose of discovery is to get the facts, narrow down the issues of the case, identify the strengths and weaknesses of the case, plan a trial strategy, or negotiate a settlement. 

Having someone knowledgeable about the EMR and EHR systems on the legal team proves to be a valuable approach to success.  The reason for this is that there are many elements of the EMR and EHR to consider in the process of discovery. McBride et al., (2019) references that there are unintended consequences of missing the patients story secondary to “data noise.” These unintended consequences include patient morbidity, poor outcomes, and even death.  The problem is that there is so much EMR/EHR data.  Professionals need to know where to find the needed (or missing) information in the EMR and EHR, both within clinical and legal practice.    

Elements of the EMR and EHR to Consider for Discovery (including, but not limited to:)

  • Name of EMR/EHR, EMR/EHR version, vendor representative contact, technician support service member contact
  • Each component part, section, sub-section of the systems
  • When the EMR/EHR system was originally implemented and when any upgrades were installed
  • The programs capabilities and limitations, how and where entries are made, who can make entries, how dates and times are entered, who has access to the EMR/EHR
  • Does the EMR have pre-set standard responses (E.g., automatic times for medication administration), are templates used for the pre-set standard responses, number of templates created or used to create the EMR
  • Are electronic signatures (e-signatures) used,  if so which health care providers (HCPs) are assigned and use e-signatures, do medical and nursing staff share signature blocks, does the facility and/or provider have a policy specific to the use of signature blocks and passwords
  • Is there a requirement to verify entries of unlicensed staff, if so, which entries must be verified
  • Is there a policy specific to making corrections to the EMR/EHR
  • Is the EMR, or section of the EMR printed, is so when (E.g., daily, or at the end of admission)
  • How is the EMR/EHR secured, who is responsible for security
  • Downtime policies (precautions to secure the EMR/EHR, as well as policies specific to documentation)

P.S. Comment and share how the presence, or absence of specific documentation either bolstered or weakened a recent case.

P.P.S. Comment and share if strong knowledge of the EMR/EHR system was able to better support your case.


McBride S., & Tietze M. (2019). Nursing informatics for the advanced practice nurse. Patient safety, quality, outcomes, and interprofessionalism. (2nd ed.) Springer Publishing Company.


In 2000, the Institute of Medicine (IOM) published a book titled, To Err Is Human: Building a Safer Health System.  Alarming statistics were revealed within this text, referencing that an estimated 98,000 people die annually in the U.S. from medical errors occurring in hospitals.  Medical errors were referenced as the third leading cause of death in the U.S.  Within the text, the IOM outlined a national agenda for reducing medical errors and improving patient safety through the design of a safer health system.  The IOM made broad range recommendations for improving patient safety, in the areas of leadership, improved data collection and analysis, and the development of effective systems at the level of direct patient care. The text reinforced that the problem is not bad people in health care, rather good people working in bad systems that need to be made safer.

In 2016, Johns Hopkins patient safety experts calculated that more than 250,000 deaths annually were due to medical error in the U.S.

The U.S. DOH and Human Services, along with the Agency for Health Care Research and Quality (AHRQ) published a November, 2021 U.S. DOH report referencing strategies to reduce medical errors.

In response to the increase in medical errors, the U.S. DOH and Human Services, along with AHRQ, have proposed the following defense strategies:

  • Monitor risk by using analytical approaches to patient safety research, measurement, and practice improvement.
  • Monitor patient safety problems by increasing the use of research methodologies
  • Implement evidence-based practice in real-world settings supported by useful tools and infrastructure.
  • Utilization of patient safety strategies outlined in the National Action Plan by the National Steering Committee for Patient Safety.

Key Highlights:

  • The report referenced the importance of developing learning health systems as such healthcare systems are better able to support the integration of the most current evidence to improve care.
  • The report referenced the importance of analyzing healthcare data, specific to procedures and patient outcomes to evaluate safe practices and opportunities for improvement.
  • The development of a learning healthcare system requires a culture of safety and a shared mental model to drive improvement in clinical practice that is outcomes based. 

To view full report, see the AHRQ.gov link below:

AHRQ.gov: https://psnet.ahrq.gov/issue/strategies-improve-patient-safety-final-report-congress-required-patient-safety-and-quality

HealthcareITnews.com: https://www.healthcareitnews.com/news/feds-point-learning-health-system-key-patient-safety

Institute of Medicine. 2000. To Err Is Human: Building a Safer Health System. Washington, DC: The National Academies Press.https://doi.org/10.17226/9728.

John Hopkins Medicine: https://www.hopkinsmedicine.org/news/media/releases/study_suggests_medical_errors_now_third_leading_cause_of_death_in_the_us

Product Liability

In this blog I’ll be reviewing another type of case Barber Medical Legal Nurse Consulting, LLC has the expertise to assist with.  Product Liability is a claim brought for personal injury, death, or property damage caused by the manufacture, construction, design, formulation, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, or labeling of any product.

3 major types of product liability claims:

  1. Manufacturing defect: occurs in manufacturing and usually involves poor-quality materials or workmanship;
  2. Design defect: occurs when the product design is inherently dangerous, and fails expectations on what is a safe product, whereby its risks outweigh its benefits; and
  3. Failure-to-warn (marketing) defect: occurs in products that carry inherent non-obvious dangers which could be mitigated through adequate warnings to the user, and these dangers are present regardless of how well it is manufactured.

In the event a company fails to disclose warnings about the possible health hazards or when it tries to minimize the dangers, public health can be in jeopardy from defective materials.

Examples of medical devices and drug related products liability cases include:
Celebrex ®, hormone therapy, birth control pills, Vioxx ®, Ephedrine, Oxycontin ®, Botox ®, Fosamax ®, hip implants (all metal), implantable defibrillators, and ventilators.

We Can Help Give Your Next Product Liability Case a Competitive Edge!

Examples of non-medical device products liability cases include: Machinery and equipment, children’s toys, cigarettes and lighters, motor vehicles, automobiles, and automobile parts, food, household products, and personal care products.

What is the role of Barber Medical Legal Nurse Consulting, LLC in a product liability case?

  • Case screening / assess case for merit
  • Assess injuries, damages, and prognosis / life care planning
  • Evaluate causation
  • Summarize and translate authoritative literature to attorney, and legal team
  • Educate attorney, and legal team
  • Evaluate validity, and reliability of research from opposing side
  • Report writing
  • Develop chronological timeline
  • Development of evidence to assist with deposition and/or trial
  • Identify and review tangible items
  • Interview client witnesses
  • Identify and locate testifying experts

P.S. Comment and respond if you have experience with product liability cases


In this blog, I’ll be addressing personal injury cases, specifically motor vehicle accidents, one of the seven types of cases Barber Medical Legal Nurse Consulting, LLC can review. In the event of a personal injury case involving a motor vehicle accident (MVA), the plaintiff has a history of ankylosing spondylitis (AS). The plaintiff has a 5-year history of low back and bilateral hip pain.  Status post MVA, the plaintiff reports worsening mid to low back and left hip pain with a new onset of left leg pain radiating down the full length of extremity associated with numbness and tingling making it difficult to stand or walk for long periods of time.

 Is this a non-meritorious case secondary to a pre-existing medical condition?  Or, is this a meritorious case secondary to exacerbation of a pre-existing medical condition as a result of the MVA?

Per Patient Safety in Surgery, cited in Pitfalls and complications in the treatment of cervical spine fractures in patients with ankylosing spondylitis, (AS) is:

  • A chronic system wide inflammatory rheumatic disorder primarily affecting the axial skeleton (sacroiliac joints and spine)
  • Characterized by remissions (reduction in severity of disease symptoms), and exacerbation (acute increase in severity of disease symptoms).  Exacerbation’s can be triggered by traumatic incidences, such as an MVA.  Exacerbation’s should be distinguished from traumatic lesions which have been reported to occur in rigid AS spines (which usually resolve within two weeks.) 

>The defense is likely to argue that the damages were unavoidable and were due to a pre-existing condition of AS.

The below links are useful resources specific to AS with a great case study in the first link provided:

Handle with care: the dangers of cervical spine fracture in patients with ankylosing spondylitis. (Cases in Point). https://link.gale.com/apps/doc/A97295577/HRCA?u=nysl_ca_sal&sid=bookmark-HRCA&xid=f46a940f   

Pitfalls and complications in the treatment of cervical spine fractures in patients with ankylosing spondylitis. https://link.gale.com/apps/doc/A181172821/HRCA?u=nysl_ca_sal&sid=bookmark-HRCA&xid=35390642

P.S. Comment and share what your thoughts are about the merits of the case based on the limited information provided

P.P.S. Comment and share if you have experience with a personal injury case involving a plaintiff with a history of AS. How did this medical history impact the outcome of the case?