Montana Birth Injury Supreme Court Opinion

In Kipfinger v. Great Falls Obstetrical & Gynecological Associates, the Montana Supreme Court reinstated a medical malpractice birth injury lawsuit against the remaining defendant, who had not yet settled the claim.


A pregnant woman arrived at Benefis Hospital in Great Falls, Montana, past her expected due date. An independent OB/GYN on call examined the patient’s prenatal records and found nothing significantly noteworthy. An attending nurse placed an electronic fetal heart rate monitor (EFM) on the woman’s abdomen, producing a fetal heart rate (FHR) record in relation to her contractions. This data can indicate whether the fetus is sufficiently oxygenated or at risk of hypoxic brain injury due to low oxygen supply.

During the patient’s labor, the OB found her cervix to be 70% effaced and two centimeters dilated. Later, the medical staff administered Pitocin, a labor-inducing hormone that is often the subject of birth injury lawsuits, as directed by the OB. Eventually, the OB reviewed the EFM tracings and ordered an urgent cesarean section (C-Section) due to nonreassuring heart rate tracings.  The question is, how long were the signs there?

The OB began the C-Section and noticed meconium in the patient’s amniotic sac. She advised the attending surgical nurse and requested the hospital’s Neonatal Intensive Care Unit (NICU) team.

The child was delivered but appeared pale and limp without any respiratory effort. A respiratory therapist arrived in the delivery room after being called by the NICU to respond to a “code” situation. Despite three unsuccessful attempts to intubate E.C., the respiratory therapist got help from a nurse who had never been asked to assist with intubation after a C-section.

Ultimately, he was discharged from Seattle Children’s Hospital with diagnoses of hypoxic-ischemic encephalopathy, cerebral palsy, developmental delay, microcephaly, and status post gastrotomy placement.

Years later, a pediatric neurologist conducted an independent medical examination of the child, who remained non-verbal, fully dependent on others for care, and exhibited profound intellectual disability, cortical visual impairment, and total incontinence. The neurologist found no likelihood of reversal for any of the child’s deficits and needs.

In October 2017, the pregnant woman filed a complaint against Benefis Health System, Inc. (Benefis), alleging medical negligence and seeking compensatory damages. The complaint claimed that the hospital staff had been negligent in several ways: (1) failing to stop administering Pitocin to the woman, (2) not ensuring a neonatal intubation team was available during the C-Section, and (3) not competently intubating the distressed infant for resuscitation and breathing. Benefis denied these allegations and argued that the OB, who was not a Benefis employee, was responsible for some of the alleged negligent acts.

In October 2018, the woman filed an amended complaint alleging medical malpractice against the OB and GFOGA concerning the care provided to her and her child. The claim stated that Dr. Kuykendall’s alleged negligence led to an excessive delay in properly oxygenating the infant, causing physical and neurological injuries.

The parties disclosed and deposed various medical expert witnesses during the discovery phase. The woman filed an expert witness disclosure for Dr. Fred Harlass, a double board-certified OB/GYN and maternal-fetal care specialist. Dr. Harlass’s report critiqued the care provided by the OB and Benefis hospital staff, asserting that it deviated from the standard of care in several ways.

In early 2021, the woman confidentially settled her negligence claims against Benefis, resulting in their dismissal from the action. That was likely the deepest pocket.  In June 2021, the OB and GFOGA filed a motion for summary judgment on the remaining negligence claims against them. They argued that the woman had not provided sufficient evidence to prove the OB’s negligence or that it caused the child’s neurological injuries and disabilities.

The woman’s birth injury lawyer filed a response in opposition, asserting various genuine issues of material fact supported by discovery materials. The District Court reviewed the complete deposition testimony of Dr. Harlass and other expert witnesses. The court ultimately granted summary judgment to the OB on the standard of care and breach elements of the woman’s remaining medical malpractice claim, reasoning that Dr. Harlass’s opinions were insufficient to preclude summary judgment on those elements.

Montana Supreme Court Opinion

It is hard to swallow summary judgment in this case.  Plaintiffs’ expert named eight breaches:

  1. The fetal heart rate abnormalities were not properly monitored due to the failure to place a fetal scalp lead monitor.
  2. The oxytocin was ordered despite the Category II tracing, which was a mistake.
  3. The oxytocin was not discontinued by 3:20 p.m., as it should have been.
  4. The decision to proceed with a C-section was not made until after it was too late
  5. The C-section was not performed within the recommended 30 minutes after the decision to proceed with one.
  6. No one was present at the C-section who was experienced in neonatal intubation.
  7. The presence of a neonatal response team was not ensured, as per hospital policy.
  8. The fetal heart tracings were misinterpreted.

The defense lawyers did an excellent job of picking at the expert opinion in the margins – he was not familiar with a national standard of care that specifically required a neonatologist, rather than any other type of neonatal provider, to be present at a C-section, his failure to give the “more likely than not” language, and his failure to treat HIE patients.  But the court was not buying any of it. It is clear that the doctor alleged breaches of the standard of care and that the breaches caused injury.

This is a really well-written opinion that provides an excellent overview of the science of birth injury lawsuits.

Contact Information