The on-call pediatrician wrote an order for transfer of both babies to the neonatal intensive care unit (NICU) per the hospital’s policy requiring transfer to the NICU for all neonates born at less than thirty-five weeks.  The babies were not immediately transferred.  The girl, three hours after birth, was sent to the NICU because of low blood glucose.  She was treated successfully for hypoglycemia and sepsis and was monitored for jaundice before being discharged home a week later a normal, healthy infant.

  The boy, however, was not sent to the NICU until late that afternoon after he turned blue while his mother tried to breastfeed him.  Neonatal apnea was suspected, but later a diagnosis of meningitis was confirmed.   He died five days later.

  The California Court of Appeal did not accept the testimony of the parents’ nursing expert and their expert pediatrician that there actually is a recognized standard in neonatal care that infants automatically are to be transferred to intensive care when born at thirty-five weeks.  Further, it was only speculation that transfer to the NICU immediately after birth or at the same time as his sister would have made any difference in the boy baby’s tragic outcome.  His sister’s altogether healthy outcome after going to the NICU much sooner in no way proved that his outcome would have been just as favorable if he had been sent to the NICU at the same time.