Medical Verdicts

Assigning responsibility, liability for neonatal resuscitation



<huc>Q</huc> At the community, non-training hospital where I work, the administration states that it is the pediatrician’s responsibility to perform neonatal resuscitation. However, the pediatricians, as well as the anesthesiologists, contend that it is not their duty, ultimately leaving it up to the obstetricians. For their part, the Ob/Gyns are frustrated with this situation, especially in light of increasing malpractice lawsuits.

In this type of hospital, who is responsible for performing neonatal resuscitation? And who is at fault if this lack of a sense of duty leads to brain damage or death?

<huc>A</huc> According to a recent joint committee opinion of ACOG and the American Society of Anesthesiologists (ASA), “Personnel other than the surgical team should be immediately available to assume responsibility for resuscitation of the depressed newborn. The surgeon and anesthesiologist are responsible for the mother and may not be able to leave her to care for the newborn even when a regional anesthetic is functioning adequately.”1

This opinion reflects the Guidelines for Perinatal Care2 and the now defunct ACOG Standards for Obstetric-Gynecologic Services,3 which stated—as early as 1988—that a separate, specially trained individual (a physician, nurse-midwife, labor and delivery nurse, neonatal nurse practitioner, nurse-anesthetist, or respiratory therapist) whose primary responsibility is the care of the newborn infant should be present at every delivery or immediately available in the hospital. In addition, the documents placed the responsibility of developing protocols for the resuscitation of a distressed neonate on the individual hospitals.

The cost of time. The problem, of course, is economics. Pediatricians, neonatologists, and anesthesiologists who are not already assisting in the delivery have found that they are frequently uncompensated for “waiting around” for a neonatal resuscitation. As a result, many of them are reluctant to make themselves “immediately available” unless they already are in the hospital and simply can be paged to the labor and delivery room.

The joint committee opinion of ACOG and ASA attempts to address this issue in the following fashion: “The availability of the appropriate personnel to assist in the management of a variety of obstetric problems is a necessary feature of good obstetric care. The presence of a pediatrician or other trained physician at a high-risk cesarean delivery to care for the newborn or the availability of an anesthesiologist during active labor and delivery when VBAC is attempted and at a breech or twin delivery are examples.

“Frequently, these professionals spend a considerable amount of time standing by for the possibility that their services may be needed emergently but may ultimately not be required to perform the task for which they are present. Reasonable compensation for these standby services is justifiable and necessary.”1

Weighing medicolegal risks. With regard to liability, hospital protocols have the same force and effect as standards of care in malpractice lawsuits. As a result, a pediatrician’s failure to obey your hospital protocols in the case of a distressed neonate could, and should, make him or her legally responsible if brain damage or death ensues. Unfortunately, if you were the delivering Ob/Gyn in such a case and you attempted the neonatal resuscitation yourself when the pediatrician failed to respond, you would likely be sued as well. The pediatrician would have primary culpability because of the violation of the hospital protocol, but since you provided care to the patient and a bad outcome occurred, a plaintiff attorney would probably name you in the lawsuit as well.

The good news is that the hospital also would be a co-defendant in this type of case. Therefore, you might want to bring this matter to the attention of your hospital administration. This sort of turf battle between Ob/Gyns, pediatricians, and anesthesiologists is a perfect example of how the system itself can lead to bad outcomes. The hospital administration would be well advised to revisit its protocol to provide financial incentive for the physician responsible for neonatal resuscitation—in this case, the oncall pediatrician. The best defended lawsuits are the ones that are avoided in the first place.


Mr. Heland’s comments reflect generally applicable legal principles. However, these comments should not be construed as constituting legal advice. Because laws can vary considerably from state to state and because each legal situation has its own unique characteristics, readers should consult their own attorneys about how best to manage a particular situation or issue.

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