---
title: Fetal Monitoring Data Retention & OB Malpractice Defense
description: Lost EFM data can cripple an obstetrical malpractice defense. Learn how to retain, retrieve, and test fetal monitoring records before a claim arises.
image: https://blog.curi.com/hubfs/GettyImages-2271278171.jpg
---

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# The High Cost of Lost Fetal Monitoring Data: Defending Obstetrical Care

[Margaret Curtin MPA, HCA, DFASHRM, CPHRM, CPCU](https://blog.curi.com/author/margaret-curtin-mpa-hca-dfashrm-cphrm-cpcu)  Oct 01, 2026

[Risk Management](https://blog.curi.com/tag/risk-management)

![Electronic fetal monitor tracing used as evidence in obstetrical malpractice defense](https://blog.curi.com/hs-fs/hubfs/GettyImages-2271278171.jpg?width=960&name=GettyImages-2271278171.jpg)

Years after a delivery, fetal monitoring data can become critical evidence in defending obstetrical care. Curi Advisory's Margaret Curtin shares why preserving it matters.

In my work conducting obstetrical clinical risk assessments and analyzing malpractice claims, one issue continues to stand out: organizations may have provided appropriate care, but years later, they cannot always produce the fetal monitoring data needed to demonstrate it.

Obstetrical malpractice claims involving neonatal neurologic injury remain among the most severe and costly healthcare claims. In these cases, the electronic fetal monitoring (EFM) record frequently becomes the single most scrutinized piece of evidence.

## Key Takeaways:

- Electronic fetal monitoring (EFM) tracings are often the most scrutinized evidence in birth injury claims.
- Organizations that cannot retrieve EFM data years after delivery lose critical objective evidence and face higher defense costs and settlement pressure.
- Retention policies should be tested regularly, especially after EHR conversions, upgrades, and vendor changes.
- Strong EFM competency, clear escalation, and consistent documentation are essential parts of defensibility.

Plaintiff and defense experts alike often spend hours reconstructing labor minute-by-minute, carefully evaluating EFM patterns, provider interpretation, communication among team members, and the timing of interventions. Years after a delivery, I’ve seen how EFM tracing data can tell the story of what happened far more objectively than recollections from clinicians involved in the event.

Unfortunately, during obstetrical clinical risk assessments and claims analysis, my team and I continue to identify organizations that cannot reliably retrieve EFM data years after delivery.

When that happens, one of the most important pieces of evidence in defending the care provided is lost.

## A Common Birth Injury Litigation Scenario

Consider a scenario I have seen play out in different forms:

A term infant is delivered via cesarean section after concerns arise regarding fetal intolerance of labor. The infant initially requires resuscitation and is later diagnosed with hypoxic-ischemic encephalopathy (HIE). Several years later, a malpractice lawsuit alleges that providers failed to recognize fetal distress and delayed delivery.

Members of the healthcare team recall that the EFM tracings remained reassuring throughout much of labor and that interventions occurred appropriately. However, when defense counsel requests the EFM data, significant portions of the tracing cannot be retrieved due to an electronic system conversion that occurred several years earlier.

Without the EFM data, defense experts lose their ability to objectively assess fetal status and support the clinical decision-making process.

Good medicine may have occurred. Unfortunately, without the objective evidence to support it, proving that care was appropriate becomes substantially more difficult.

## Potential Financial Impact of Missing EFM Data

The implications extend beyond documentation. I’ve seen how the absence of objective evidence can complicate the defense of a claim when EFM data is unavailable,. Defense experts may be unable to objectively evaluate fetal status, the appropriateness of clinical interventions, or the timing of deterioration.

In our experience, the lack of EFM data frequently increases defense costs due to the need for additional expert review and often creates substantial settlement pressure because the organization cannot fully demonstrate what occurred during labor.

| **Evidence Status** | **Potential Effect on Claim** |
| --- | --- |
| EFM data available and supports care provided | Stronger ability to defend clinical decision-making, potentially reducing indemnity exposure and settlement pressure. |
| EFM data unavailable or incomplete | Increased defense costs, reduced ability to refute allegations, and greater likelihood of settlement consideration. May result in allegations of spoliation of evidence. If a court finds the evidence was improperly lost or destroyed, it may instruct the jury to infer that the missing evidence would have been unfavorable to the defense. |

The financial stakes in catastrophic birth injury claims can be substantial. We’ve seen birth injury claims involving permanent neurologic injury commonly exceed **$1 million**, with catastrophic cases frequently resulting in **$5 million to more than $30 million** in indemnity payments.

Defense costs alone often exceed **$100,000–$500,000 per defendant**.

Preserving fetal heart monitor strips is not simply a documentation issue—it is a critical risk management strategy that can significantly influence an organization's ability to defend the care provided. 

## Why Fetal Heart Rate Monitoring Matters in Litigation

The medical record frequently contains only snapshots of fetal status. The EFM tracing, however, provides continuous physiologic information regarding fetal well-being.

When my team reviews an obstetrical claim or conducts a risk assessment, we’re often looking at questions that will ultimately be examined in litigation (often posed by plaintiff experts):

- When did fetal status begin to deteriorate?
- Was the tracing appropriately categorized?
- Were Category II or Category III patterns recognized?
- Were appropriate intrauterine resuscitative measures implemented?
- Was provider notification timely?
- Was escalation appropriate?
- Was delivery expedited when indicated?

When the underlying EFM data is unavailable, answering these questions objectively may be impossible. That can make it much more difficult to reconstruct the clinical decision-making that occurred in real-time.

## The Importance of Training and Competency (EFM Data Retention Best Practices)

Having access to EFM strips is only one component of defensibility. Equally important is ensuring that clinicians possess the knowledge and skills necessary to accurately interpret and respond to fetal heart rate patterns.

I often advise organizations to take a comprehensive approach to fetal monitoring competency and team response. This process includes:

- Validating initial and ongoing EFM competency for nurses and providers.
- Providing interdisciplinary EFM education.
- Using simulation training to reinforce escalation and communication.
- Standardizing expectations for the management of Category II and Category III tracings.
- Conducting regular drills and interdisciplinary case reviews to strengthen both patient safety and team performance during high-risk events.
- Reinforcing chain-of-command processes when concerns arise.

These processes are particularly important because fetal monitoring is not simply an individual clinical skill. Effective response depends on communication, shared expectations, timely escalation, and coordinated decision-making across the care team. 

# Preserving the Evidence

I also encourage organizations to look beyond clinical competency and examine whether their systems are designed to preserve and retrieve fetal monitoring data when it is needed.

Organizations should:

- Assign clear ownership for fetal-monitoring data retention among OB leadership, Health Information Management (HIM), IT/clinical informatics, and risk management.
- Test data retrievability after EHR conversions, software upgrades, downtime events, and vendor changes.
- Confirm whether archived tracings preserve annotations, timestamps, metadata, and audit-trail information.
- Establish clear processes for triggering litigation holds following sentinel events, neonatal transfer for suspected HIE, unexpected neonatal depression, or serious maternal/neonatal injury.
- Include fetal-monitor strip retrieval in mock claims drills or adverse-event review checklists.

A retention policy is only as strong as the organization’s ability to retrieve the data years later. I recommend periodically testing that process rather than assuming archived data will remain accessible.

# Don’t Forget About Documentation

Even when the tracing is available, documentation gaps may create significant challenges.

The EFM tracing tells one part of the story. The clinical record should tell the rest by clearly documenting:

- Fetal heart rate interpretation and category
- Presence or absence of accelerations and decelerations
- Interventions performed
- Communication with providers
- Provider response
- Clinical decision-making rationale
- Patient counseling discussions

When the objective tracing and the clinical documentation tell a consistent story, they can provide a much stronger picture of the care delivered and the decisions made.

# Risk Reduction Strategies

Based on what I see in clinical risk assessments and claims analysis, I encourage healthcare organizations to consider the following risk reduction strategies:

`✓` Establish formal fetal monitoring retention policies.

✓ Audit archived tracings periodically to ensure they remain retrievable.

✓ Validate retrieval processes after EHR conversions or monitoring system upgrades.

✓ Standardize fetal monitoring education and competency validation.

✓ Conduct interdisciplinary drills focusing on escalation, communication, and emergency response.

✓ Monitor compliance with fetal monitoring documentation expectations.

# The Bottom Line: Preserve EFM Data to Defend Good Medicine

Years after a delivery, memories fade. Objective evidence does not.

That is why I encourage organizations to think about fetal monitoring data as more than part of the clinical record. It can be critical evidence in demonstrating the care that was provided and the clinical decisions that were made.

Organizations should ensure that fetal heart monitoring data remain accessible long after delivery occurs. In today's challenging obstetrical malpractice environment, preserving and appropriately interpreting fetal monitoring data may be essential to defending good medicine.

# A Proactive Risk Management Opportunity

The good news is that organizations don’t have to wait for a claim to identify vulnerabilities.

Curi Advisory’s Risk Consulting team, powered by ERC Risk, conducts comprehensive Obstetrical Clinical Risk Assessments designed to evaluate fetal monitoring practices, communication, escalation processes, documentation, and overall obstetrical safety culture. These assessments enable organizations to identify vulnerabilities before an adverse event occurs, strengthening patient safety and medical malpractice defensibility.

Our **Obstetrical Clinical Risk Assessment** evaluates high-risk clinical practices, including:

- Electronic fetal monitoring interpretation and competency
- Emergency cesarean delivery response
- Communication and escalation processes
- Documentation practices
- Shoulder dystocia preparedness
- Obstetrical emergency simulation
- Teamwork and culture of safety
- Policies, procedures, and guideline compliance
- Medical malpractice defensibility

Whether your goal is improving patient outcomes, strengthening your medical malpractice defense, preparing for underwriting review, or reducing organizational risk, our experienced obstetrical risk consultants can help.

We partner with hospitals, health systems, and physician organizations nationwide to identify clinical and operational risks before they result in patient harm or medical malpractice claims.

Contact my team at [risk.consulting@curi.com](mailto:risk.consulting@curi.com) to learn more about an Obstetrical Clinical Risk Assessment. 

##### ``

---

**References**

- [https://www.expertinstitute.com/resources/insights/jury-awards-family-30-55m-for-failure-to-monitor-fetus-heart-rate/](https://www.expertinstitute.com/resources/insights/jury-awards-family-30-55m-for-failure-to-monitor-fetus-heart-rate/)
- [https://www.lubinandmeyer.com/cases/fetal\_heart\_rate.html](https://www.lubinandmeyer.com/cases/fetal_heart_rate.html)
- [https://www.medlawhelp.com/blog/fetal-decelerations-29m/](https://www.medlawhelp.com/blog/fetal-decelerations-29m/)

*The content contained herein was generated by Curi Advisory with the assistance of an AI-based system to augment the effort.*

*These resources and guidance are offered for educational and risk management purposes only. This information is not medical or legal advice, does not replace independent professional judgment, does not constitute an endorsement of any kind, should not be deemed authoritative, and does not establish a standard of care in clinical settings or in courts of law. If you need legal advice, you should consult your independent/corporate counsel. We have found that using risk mitigation efforts can reduce malpractice risk; however, we do not make any guarantees that following these risk recommendations will prevent a complaint, claim, or suit from occurring, or mitigate the outcome(s) associated with any of them.*

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### About the Author

![](https://blog.curi.com/hubfs/Margaret%20Curtain.png) 

[Margaret Curtin MPA, HCA, DFASHRM, CPHRM, CPCU](https://blog.curi.com/author/margaret-curtin-mpa-hca-dfashrm-cphrm-cpcu)

 Margaret Curtin joined the Curi Advisory team in 2023, as Program Director for its risk consulting arm offering clinical risk assessments, claim management, practice management and education support services to hospitals, healthcare organizations and physician groups. With over 30 years of experience in risk management and patient safety, Margaret is a well-known leader in the field.

In addition to the medical professional liability insurance industry, she has first-hand healthcare experience, having worked in acute, managed, and ambulatory care settings. Throughout her career, Margaret has also held positions in provider relations, contracting, business development, marketing, education, and underwriting.

She is a published author and frequently speaks at industry events and conferences. Margaret is a certified coach and Five Behaviors Certified Practitioner with Wiley in association with Patrick Lencioni. Focusing her coaching practice on leadership and unlocking the power of teamwork for aspiring professionals in the healthcare and the insurance industries.

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