Andrew I. Kaplan, Esq

Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.

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Before being treated by Defendant ob/gyn A, the plaintiff had seen Co-defendant ob/gyn B in January 2013 for worsening symptoms of prolapse. Her complaints included incomplete voiding, urinary frequency, nocturia, urgency two to four times per day, and some rare episodes of stress urinary incontinence (SUI). 

Dr. B found that the plaintiff had evidence of Stage II uterovaginal prolapse 1 cm past the hymen. His impression was uterine prolapse, cystocele, rectocele, and urinary incontinence, and a need to rule out voiding dysfunction. The plaintiff’s treatment by Dr. B continued through the winter of 2013, during which various surgical interventions were explained to her. She ultimately gave him consent for a laparotomy, supracervical hysterectomy, bilateral salpingo-oophorectomy (BSO), sacrocolpopexy with permanent mesh, possible cystocele and rectocele repair, and cystoscopy. 

The plaintiff underwent surgery with Dr. B at Codefendant Hospital on May 7, 2013. Dr. B discussed the risks of surgery with the plaintiff including possible bowel injury. He encountered significant scarring, which he stated might be secondary to previous obstetrical injury. He did not perform the sacrocolpopexy because of his intraoperative findings of a deep pelvis, pelvic adhesions, redundant bowel, and diverticular disease. In the setting of an obese woman with diabetes, risk of infection and mesh erosion was greater, therefore, he elected to perform a modified colpopexy. 

The plaintiff was on disability from May through July 2013 and Dr. B continued to treat her during that period. However, by the August 19, 2013 visit with Dr. B, it appeared that the plaintiff was having recurrence of prolapse. He had a long conversation with her but did not recommend any surgical intervention. The plaintiff’s last visit with Dr. B was on November 18, 2013. He noted she was having chronic constipation, and was not only bothered by vaginal protrusion, but there were days when she felt some discomfort. On exam, Dr. B noted excellent healing of the abdominal incision and no apical approach or cystocele. During maximal straining, a small Stage I rectocele and distal component 2 cm above the hymen was noted. There were no foreign bodies in the vagina and no antrocele. Dr. B instructed the plaintiff to do pelvic floor exercises and to lose weight. He noted that at that time he was very pleased with the results.

On February 24, 2014, the plaintiff presented to Nonparty ob/gyn C and his facility for an assessment of her recurring vaginal prolapse. Dr. C noted that she was a 62-year-old G4P3 who presented with a chief complaint of occasional urgency with leakage. She also admitted to frequency and nocturia but denied urinary leakage with cough, laugh or sneeze (SUI). She reported feeling a bulge and was status post-supracervical abdominal hysterectomy, uterosacral ligament suspension, and posterior repair done in May 2013 at Co-defendant  Hospital (by Dr. B).  Dr. C indicated that he reviewed those records and that Dr. B had originally consented the plaintiff for a mesh sacral colpopexy, but that intraoperatively, Dr. B decided against the use of mesh.

A review of systems and physical exam were generally within normal limits except that the exterior vaginal wall demonstrated a large cystocele to 1 cm past the introitus, cervix at the level of the introitus, and there was a large rectocele. Bedside cystometrics was also performed and demonstrated a fair sensation at 100; fullness 270, max capacity at 300 with a negative cough stress test, pretest postvoid residual (PVR) of 180, and post-test residue of less than 10.  Dr. C’s overall impression was that the plaintiff had a large recurrent prolapse, status post-uterosacral ligament suspension.

Dr. C indicated he had a “long discussion” with the plaintiff. He noted that uterosacral ligament suspensions have a success rate at best in the range of 60% to 80%. Sacral colpopexy would give her a success rate of close to 99%. His note also indicated that the plaintiff would consider having a sacral colpopexy as well as anterior and posterior repair. Dr. C also indicated that he took time to discuss the pros, cons, risks, benefits, success and failure rates of the proposed procedure as well as complications including but not limited to injury to bowel, urinary tract infection (UTI), blood loss, mesh erosion, new onset of incontinence, urinary retention, and need for additional surgery.  


	
	The plaintiff’s treatment with Dr. A began on June 2, 2014. At that time, she was evaluated for symptomatic vaginal prolapse for the past 10 months, which was affecting her lifestyle. Her current complaint was voiding 15 to 20 times per day and twice per night. Dr. A’s conclusion was vaginal vault prolapse post-hysterectomy. Options of conservative observation, pessary placement, and surgery were discussed in detail. Potential risks and complications were also discussed. The plaintiff agreed to undergo a minimally invasive sacrocolpopexy. 

On July 14, 2014, the plaintiff underwent a Pelvic electromyogram (EMG) and urodynamics, which showed that her bladder capacity was normal with sphincter coordination. There was urethral hypermobility with SUI. The plaintiff returned to Dr.  A’s office on August 18, 2014, and Dr. A suggested a laparoscopic vs. robotic sacrocolpoplasty with midurethral sling. The plaintiff had Stage 3 anterior wall vaginal prolapse (AWVP) and Stage 2 apical prolapse and underwent urethrosacral culpoplasty with Ethibond and Vicryl without sacrocolpopexy, anterior repair perineorrhaphy, supracervical hysterectomy, and BSO in May 2013. Comorbidities included hypertension, diabetes mellitus, hypothyroidism, gastroesophageal reflux disease, and atherosclerosis. She was postmenopausal. 

Dr. A documented an exhaustive discussion with the plaintiff regarding the potential risks and complications of the proposed surgery, which included, among other things, risk of infection requiring antibiotics and re-hospitalization, and risk of damage to adjacent organs including but not limited to the bladder, bowel, ureters, and nerves. The plaintiff also signed a general surgery consent form acknowledging that Dr. A explained the potential risks of the procedure in a way that the plaintiff could understand.   

On September 3, 2014, the plaintiff presented to Defendant Hospital for surgery. The procedure performed was diagnostic laparoscopy with lysis of adhesions, sacrospinous ligament fixation, anterior repair, laparotomy, enterotomy repair x 2 and cystoscopy.  Laparoscopic findings included dense adhesions noted between the small bowel and anterior abdominal wall extending from the umbilicus to the bladder. The adhesions penetrated into the fascia consistent with a ventral hernia and involved the rectal muscle. There were also adhesions between the colon and lateral sidewalls and the small bowel and bladder. Lysis of adhesions was performed for 1.5 hours. A questionable (non-circumferential) partial rectal prolapse was encountered. Cystoscopy revealed proper positioning of the mesh without perforation or ureteral obstruction. An Obtryx sling material was used. 

According to Dr. A’s operative report after the abdominal cavity was surveyed:


	“Dense adhesions were noted along the anterior abdominal wall between the small bowel, the omentum, and the anterior abdominal wall. Careful dissection was performed with the monopolar scissors mostly without heat, to lyse the adhesions for about 1.5 hours. During this dissection, as we uncovered the adhesions, we discovered that the bowel was densely adhered to the anterior abdominal wall fascia and rectus muscles. Also a 3 mm serosal tear was noted in the small bowel. This was tagged with a vicryl and colorectal was consulted. He agreed this needed oversewing and further lysis of adhesions and that this would be best achieved via an open incision. We converted to a midline incision (chosen based on where the adhesions were). The abdomen was insufflated as we made an incision with the knife and carried it down to the underlying layer of fascia to help protect the bowel

 At this point we connected the incision with the ventral midline hernia just inferior to the umbilicus and entered the peritoneal cavity. We extended the incision inferiorly taking care to avoid the bowel adhesions. At this point colorectal surgery scrubbed in and in running the bowel an enterotomy was identified with no frank spillage and he primarily repaired that with vicryl and then oversewed the previously identified serosal tear. He also assisted with the remaining lysis of adhesions. 

At this point, the decision was made to not proceed with the sacrocolpopexy due to the concern for a contaminated field due to the enterotomy. I stepped out to discuss the operative findings and plan with her husband and decision was made to proceed with native tissue repair.” 

A typed operative report by the Colorectal Surgeon noted that he was called intra-operatively to assess the small bowel. He further noted in his operative report that “during lysis of adhesion, an enterotomy was noted.” There was a serosal tear in the proximal ileum as well as a full-thickness enterotomy in the mid ileum, which was 25% circumferential. The serosal tear and the enterotomy were repaired with interrupted 3-0 Vicryl suture. There were no other intraoperative or postoperative complications and the plaintiff was admitted overnight for observation. 

On September 5, 2014, the plaintiff complained of mild soreness at the incision site. However, she was afebrile, voided, and tolerated liquids. She was then discharged home on Oxycodone, Motrin and Senna. She was instructed to continue all prior medications. No antibiotics were prescribed. 

The plaintiff followed up with Dr. A’s office on September 9, 2014. She reported that she was voiding, had a bowel movement, and was ambulating. On September 13, 2014

 the plaintiff was admitted to the Defendant Hospital with complaints of oozing from the vaginal incision site. Her vital signs were stable and she was afebrile with a pain score of 5/10. She reported 2 days of peri-incisional erythema and separation of the incision on the day of admission. She had called Dr. A’s office and Keflex was prescribed for presumed cellulitis.

The plaintiff had a visible 2-cm abdominal wall incision with 10-cm tunneling above the fascia. Purulent drainage was expelled, drained, and debrided and the wound was packed while in the emergency room. The plaintiff was admitted for wound infection and was started on wet-to-dry dressing changes, Ancef, and Bactrim. Over the next 2 days, her  erythema decreased with dressing changes and Gram stain of the drainage showed neither white blood cells nor bacteria. Cultures showed moderate 

. The dehiscence was noted to be 2.5 cm deep to fascia and 1.5 cm wide. However, the plaintiff remained afebrile without evidence of sepsis. She was discharged home on September 16, 2014 on oral clindamycin.    

 the plaintiff was seen by Dr. A after being hospitalized for a wound infection. However, the wound was slowly healing and measured 3 cm deep with some tracking superiorly. Dr. A noted that the plaintiff had no complaints of fever, chills, bulge or incontinence. She was to follow-up in 2 weeks, at which time a pelvic exam would be done.

 VNS called Dr. A’s office and reported that there was yellow-green discharge from the wound. However, there was no odor, increased drainage or fever. An office appointment was arranged for the next Monday. The plaintiff returned to Dr. A on September 29, 2014 for a follow-up visit. At that time, her wound was examined and repacked. On October 6, 2014, the plaintiff was seen for a follow-up visit for her wound and for complaints of urinary frequency. At that time, it was noted that her wound was healing and was 2 cm deep and 3 cm long. At the next visit on October 20, 2014

 Dr. A noted that the plaintiff’s wound was almost closed. No prolapse was appreciated on exam and estrogen cream was prescribed for atrophic vaginitis.

On October 27, 2014, the wound was noted to be closed and the plaintiff reported no pain or incontinence. At a follow-up visit on February 1, 2015, the plaintiff complained of double voiding and incomplete emptying; she was treated with Macrodantin. At her last reported visit with Dr. A, on March 16, 2015, she complained of rectal bulge (small hemorrhoid noted on rectovaginal exam), “occasional” fecal urgency and “some” incomplete bladder emptying. A bowel regimen was started and she was referred for pelvic floor exercises. On a form entitled “Patient Global Impression of Improvement,” the plaintiff indicated that her postoperative condition was “normal” and that when compared to her preoperative condition she was “much better.”  

On July 28, 2015, the plaintiff presented to her private ob/gyn, Dr. E, with complaints of a recurrent prolapse. However, Dr. E’s note includes no exam findings consistent with recurrent prolapse. On November 16, 2015, the plaintiff underwent right carotid endarterectomy at Codefendant University Hospital, which was complicated by transection of the carotid artery. Postoperatively she had a right middle cerebral artery infarction with left hemiparesis. There was no reference to any urologic complaints.

The plaintiff alleged that the defendants were negligent in performing a laparoscopy; in causing an enterotomy; in causing the need to perform an exploratory laparotomy and repair; in failing to properly and sufficiently plan the laparoscopy; in failing to perform appropriate preoperative testing to assess adhesions; and in failing to take all measures necessary to prevent any complications from the laparoscopy. Plaintiff argued the procedure should have been commenced open and opposed to laparoscopically. In addition, plaintiff contended Dr. B “botched” the first prolapse repair, leading to the cascade of events that necessitated future surgeries and complications.

As a result of the alleged negligence, the plaintiff asserted injuries including large recurrent prolapse, urgent urinary frequency, nocturia, and loss of services to her husband. 

The plaintiff testified that Dr. A advised her that when she started the procedure laparoscopically, they came into contact with numerous adhesions which no longer permitted her to perform the surgery as planned. In addition, as a result of the adhesions, her bowel was nicked and ultimately repaired intraoperatively. Since that surgery, she conceded she no longer experiences any type of urinary complaints. In addition, with respect to the prolapse, the plaintiff also testified that following Dr. A’s surgery in September 2014, she no longer experienced any type of bulging or prolapse. She did testify that she had a brief recurrence in or about April of 2015, however, it self-resolved. With respect to the claim for loss of consortium, she testified that following her surgery with Dr. A, her ability to have a physical relationship with her husband was not affected. It was clear that any significant injury she suffered was related to the stroke she suffered in November of 2015.

Dr. B testified that one of the reasons why he decided to do the modified colpopexy, as opposed to the sacrocolpopexy, was because the plaintiff had diverticular disease. According to Dr. B, the plaintiff had a good postoperative course and as of the last time that he saw her, she had a normal vaginal vault and excellent apical suspension.

Dr. A testified that from the time of their first meeting, the plaintiff was insistent on having a sacrocolpopexy. She nevertheless went through a full presentation of the various options available to the plaintiff, including pelvic floor therapy, placement of a pessary, and expectant management. The plaintiff refused those options. Alternative procedures discussed were colpocleisis; use of vaginal mesh; a vaginal approach using uterosacral ligament suspension; and sacrocolpopexy with mesh. 

Upon entering the abdomen, Dr. A testified she encountered dense adhesions and, therefore, she called Colorectal Surgery to assist with the lysis of adhesions. She spent 1.5 hours lysing adhesions. At some point she noted a 3-mm serosal tear in the plaintiff’s bowel. Colorectal Surgery recommended that they convert to an open procedure in order to lyse adhesions and inspect the bowels. Both the serosal tear and the enterotomy were repaired with sutures. She cautioned the patient preoperatively about the risk of adhesions and conversion.

We had expert support from Obstetrics and Gynecology, Urogynecology and Colorectal Surgery as to the indications for surgery, the consent provided, the surgical approach and technique, as well as the conversion to open and repair of enterotomies, which were known risks of the procedure and could not be predicted or prevented by testing preoperatively.
	 


	At the close of discovery, we moved for Summary Judgment (dismissal) as to our clients. So did counsel for Dr. B. Interestingly, the plaintiff’s counsel did not oppose our motions with an expert of his own, but instead tried to use our experts against each other to suggest that if sacrocolpopexy was not indicated when Dr. B operated, then it was a departure for Dr. A to perform that procedure. Alternatively, if it was indicated, then Dr. B departed by not performing it during the initial prolapse surgery. In reply, both defendants were able to use their experts to coordinate theories and display to the Court that there was no inherent contradiction between their respective positions. The Court did not accept the plaintiff’s arguments, found that defendants met their burden of proof entitling them to dismissal, and that the plaintiff’s failure to produce an expert affidavit in contravention of defendant’s positions was fatal to their claim.


	It can be tricky at times to coordinate defenses amongst codefendants whose treatment occurred at different stages of the patient’s care. Doing so, however, should be the primary objective, as a unified defense prevents the kind of blaming or finger-pointing that can weaken both defenses and lend weight and credibility to a plaintiff’s assertions. Here, both defendants were able to prove that their course of action at the time they undertook to treat the patient was appropriate, based upon not only the exercise of medical judgment, but the particular issues they were faced with respectively. Each physician was able to articulate their rationale for approach and decision-making in a way that enabled their retained experts to support their care, rather than blame the other for complications that proved to be known risks of surgery. Faced with a unified defense, the plaintiff could not find expert support for rebuttal.

Articles

In a case with multiple defendants, coordinating defenses should be the primary objective for trial.

Was this prolapse  properly managed?


	The infant-plaintiff was the patient’s seventh pregnancy and fourth delivery. The mother’s obstetrical history was significant for six gestations with three term deliveries and two abortions. The first delivery was spontaneous vaginal at 39 weeks in 1999.  The labor was complicated by macrosomia, the infant weighed 3,493 g. The neonatal course was complicated by shoulder dystocia, a brachial plexus injury, and Erb’s palsy. The second delivery, in 2002, was a cesarean done at 39 weeks due to the 3010-g infant’s breech position. No complications were noted. The third delivery, by elective cesarean in 2009, was also at 39 weeks with no complications.  

The mother’s prenatal care for the pregnancy at issue was received at Defendant Hospital. Her history was significant for hypertension and chronic severe asthma, for which she had been hospitalized in 2012. At the first prenatal visit, in December 2014, she was age 35 and considered obese at 4’11” and 130 lb. She reported possible elevated blood pressures in her last pregnancy and postpartum hemorrhaging with her prior two cesarean deliveries.    

The prenatal records show that the mother was noncompliant with her care recommendations and failed to appear for multiple follow-up visits, including missing the opportunity for prenatal serum screenings. She was also advised on multiple occasions to see a pulmonologist but did not do so until May 21, when she was sent directly to the labor and delivery triage for a pulmonary consult and maternal sonogram due to concern for uncontrolled asthma and inconsistent use of bronchodilators and montelukast. She also did not present on June 12 for her scheduled cesarean, and instead presented in labor after spontaneous rupture of membranes at 4:51 AM on June 13, 2015.  

On June 13, the patient was admitted and seen in triage. Defendant A performed a vaginal examination and documented that the cervix was 2 cm dilated, 90% effaced, and the head was at -3 station. Presentation was vertex. The history of the patient’s prior deliveries was extensively documented in the records and it was noted that she was to be delivered by elective cesarean with no trial of labor and that a bilateral tubal ligation was to be performed at delivery.  

The mother was seen by Dr. B shortly before being taken to the operating room for delivery at 6:21 AM. The records indicate that Dr. B performed the cesarean by a low segment transverse incision and that the infant’s presenting position was cephalic. The delivery note documents moderate adhesions encountered during the delivery, as well as the bladder being severely adhered to the lower uterine segment, which resulted in the incision being made as low as possible. No fetal anomalies were noted. Dr. B delivered the female infant “by the head” by “manual extraction” at 7:22 AM. Dr. C assisted during the delivery and believed that Dr. B performed the extraction and delivery of the infant at issue due to the adhesions noted. Following delivery, a bilateral tubal ligation was performed by Dr. B. No complications were encountered subsequent to the surgery and the mother was discharged without issue on June 15, 2015.

The mother’s postpartum visit on July 13, 2015, with Dr. B was unremarkable. No mention was made of the infant during this visit.

The birth records for the infant indicate that a moderate amount of meconium was encountered at the time of delivery and was aspirated with bulb and wall suction. She breathed immediately, cried spontaneously and had well-flexed muscle tone and a vigorous cry. Her Apgar scores were 9/9 at 1 and 5 minutes. The infant was transferred to the newborn nursery where  she weighed 7 lb 7 oz and was 20.4 inches in length. Her head circumference was 36 cm.  All admitting vital signs were normal and she passed stool and clear urine. The admitting exam by the resident and the pediatric attending physician was performed. No abnormalities were noted, and the neurologic portion of the exam noted normal range of motion in the infant’s neck; an intact right and left clavicle with no crepitus; no spinal curvature, hair tuft, or sacral dimple; five digits on all hands and feet with no digit fusion; and symmetrical movement in all extremities. It was also documented that the infant had normal muscle tone. The pediatric attending physician separately documented her exam, which also showed that there were no abnormalities of the hands, feet, spine, or hips. The neurologic exam showed a normal cry and suck, a normal right and left grasp, symmetrical movement in the extremities, no irritability, no hypo- or hypertonia, no jitteriness, and no paresis or paralysis on the right or left.  

A nurse’s note made at 8:00 AM on June 14 showed that the infant’s body tone was flexed, normal, and appropriate for a newborn. Examination by the attending at 12:10 PM  showed no change and the infant was clinically stable and bonding and feeding well, and established newborn care was continued. At 8:15 PM, the nurse again noted that the infant was moving all extremities. The nursing assessment the following morning was unchanged, and the infant was moving all extremities and was awake and alert.

The final pediatric attending exam, done before discharge on June 15, 2015, showed nothing changed from the prior exams, except for new findings of a cardiac murmur and decreased left arm movement. A cardiology consult at 2:00 PM showed that the infant was moving all four extremities equally with good tone and intact reflexes and that she was alert, awake, and had appropriate mental status for her age. An electrocardiogram was pending, but echocardiography showed a multi-fenestrated atrial septum with two to three small defects, but otherwise normal intracardiac anatomy.  The pulmonary flow murmur was felt to likely be secondary to the multi-fenestrated atrial septum and because the small defects were within normal limits for the infant’s age, it was felt they would likely close spontaneously.  As such, it was recommended that the infant follow up with cardiology in 1 year.  

Clavicular x-ray performed at 3:24 PM revealed an intact left clavicle with no fracture, no osseous destruction, and no periostitis. The indication for the study was reported as “birth trauma.”

The infant later presented to Defendant Hospital on December 18, 2015, for a magnetic resonance imaging (MRI) of the cervical spine and brachial plexus. The diagnosis on admission was Bell’s palsy. Physical exam indicated that the infant had appropriate mobility for her age and that she was moving all four extremities voluntarily or on command. The short stay form indicated that the chief complaint was weakness of the left arm and left Erb’s Palsy following delivery by cesarean. Neurologic findings on the short stay form were left Erb’s Palsy and brachial plexus injury. The MRI revealed a normal cervical spine and left brachial plexus with no evidence of root evulsion, brachial plexus mass, or hematoma.


	Plaintiff alleged that defendants did not use proper care in their performance of cesarean delivery, resulting in a brachial plexus injury. Significantly, the plaintiff did not annex a 

Certificate of Merit to their Verified Complaint

 affirming that they had spoken to an expert who reviewed the records prior to commencement of the lawsuit and was willing to testify that there had been a departure or departures from standards of care sufficient to result in injury to the infant.
	 


	The resident OB advised that he had never personally encountered a case of Erb’s Palsy occurring as a result of cesarean delivery, but he was aware of some literature that brachial plexus injury can occur, either as a result of in utero issues or at delivery. He stated that there is no strong science to back up the theories with regard to in utero development of Erb’s Palsy, but that there has been consideration of occurrences such as decreased oxygen to the fetus during pregnancy or positioning of the baby in utero causing stretching of the nerves in the neck. He doubted the mother’s noncompliance with her asthma medication or her severe chronic asthma could cause decreased oxygenation during the pregnancy sufficient to result in nerve ischemia. 

Likewise, one of the delivering attendings opined that there are published case reports of brachial plexus injury occurring in association with cesarean delivery. These case reports, in his opinion, support a theory that brachial plexus injury can occur as natural sequelae of the birth process and is not always caused by shoulder dystocia. In this case, it was even more difficult to explain the injury because the plaintiff was not in active labor and the head was not engaged, thus the fetus had not experienced the propulsive forces of traveling down the birth canal.
	 


	Secondary to pressure from our office to produce the aforementioned certificate of merit or suffer dismissal, opposing counsel, apparently unable to acquire an expert to support his theory, moved for dismissal of the infant’s claim, extinguishing his claim. 
	 

This case offers more of a legal than a medical lesson. By staying attuned to the failure to produce the requisite documentation affirming that the plaintiffs had properly vetted their claim under the law, and by applying constant pressure for compliance, we were able to get this specious claim discontinued at an early stage rather than putting all of the defendant physicians and hospital through protracted discovery. Early discussion of the case and analysis of the support in the literature for potential theories allowed us to take a firm posture in pressuring for proof of merit or dismissal. 

When a plaintiff brings forth a specious claim, constant pressure from the defense is key.

If a patient is noncompliant, can the ob/gyn be at fault?

Facts
	The plaintiff mother received prenatal care at defendant ob/gyn practice, predominately from Dr. A, between August 29, 2013 and April 15, 2014. There was no issue with that care.

At 4:16 am on April 14, 2014, the plaintiff was admitted to defendant hospital at 36 weeks, 6 days because of increasing contractions. An epidural was started at 8:06 am. Labor was managed by Dr. B from 8:00 am up to and including delivery of the infant at 5:06 pm. Dr. B was the daytime on-call attending for defendant ob/gyn practice and Dr. A (who was on vacation, but in the office) came to deliver the infant when Dr. B called to inform her that the patient was fully dilated. Dr. A arrived at about 4:50 pm or 16 minutes before delivery.

Labor was reported to be routine until 2:30 pm. At that time, the fetal heart rate monitor (FHR) showed fetal tachycardia to 165 bpm. The patient was 7 cm dilated, 90% effaced, and the infant was at +1 station. Oxytocin was started at 4 MUmin. At 3:25 pm, the patient was fully dilated and the oxytocin was stopped because of long variable decelerations, which had started at 3:10 pm, some of which had a late component. At that time, there was still good beat-to-beat variability. Tachysystole had begun at 3:15 pm.

The infant was at +4 station as of 4:20 pm, and the FHR continued to deteriorate from “bad” Category II strips to Category III strips, with decreasing beat-to-beat variability over that time until 4:36 pm, when variability was absent. At that time, maternal fever also was noted, from 99.7°F to 102.3°F. When Dr. A arrived at about 4:50 pm, she reviewed the FHR monitor and instructed the mother that her infant had to be delivered now. Because the head was so far down (at +5 station), Dr. A believed the infant could be delivered faster vaginally than with a cesarean section. At vaginal delivery at 5:06 pm, meconium and a tight nuchal cord x 1 were present. The mother’s temperature at delivery was 100.6°F.

The infant’s Apgars were 1, 3, and 4. Pediatrics was in the room at the time of delivery and suctioned the meconium but the infant’s heart rate was less than 60 beats per minute (bpm). Tactile stimulation and positive pressure ventilation (PPV) did not improve the heart rate. At 52 seconds, a neonatal airway specialist was called. At 2:27 minutes, the anesthesiologist arrived to assist. At 3:59 minutes, the pediatric resident made an unsuccessful attempt to intubate the infant. Another unsuccessful attempt at intubation was made at 4:17 minutes, by the pediatric attending. At 5 minutes, the neonatal airway specialist arrived and at 5:21 minutes, another unsuccessful attempt at intubation was made. Finally, at 6:10 minutes, Pediatrics successfully intubated the infant.

A cord venous blood gas indicated a pH of 6.905, CO2 of 94.9, PAO

 of 28.1, bicarbonate of 17.3, and a base excess of 16.7. 

The infant’s initial neurological examination showed pupils pinpoint and equal bilaterally, no reaction to light, no tone, no spontaneous movement or eye opening, and no reflexes. He was diagnosed with “severe encephalopathy secondary to perinatal hypoxic – ischemia and DIC.”  Although there were no detectable subclinical seizures on electroencephalogram, the physicians suspected seizure activity on physical examination and, as a result, the infant was treated with phenobarbital. He was placed on hypothermia protocol from birth until April 19, 2014. On April 21, 2014, magnetic resonance imaging was performed and the infant was noted to have an “acute” right thalamic infarct, measuring 1.1 x 1.3 cm. In addition, there was a finding of a posterior fossa subdural hematoma, as well as some arachnoid hemorrhage. Almost every note refers to the fact that the infant was suffering from “severe hypoxic ischemic encephalopathy (HIE).”  
	 

Damages
	Records from pediatric neurology and the infant’s pediatrician indicate that the child met milestones up to age 1 year. The pediatric neurologist found two to three beats of clonus with some possible hypertonicity. At age 1 year, the boy was able to say consonant sounds and “dada” was emerging as specific. However, the plaintiffs hired their own speech pathologist, who said the child might or might not have a speech delay. In October 2014 (age 6 months), the parents applied for early intervention program (EIP) services and an evaluation performed did find “significant delays in gross and fine motor function.” He was also evaluated by a developmental pediatrician, physical therapist, and occupational therapist and found to have low trunk tone centrally and there was head lag when he was pulled to a sitting position. They also found increased tone in his extremities and his hands sometimes would fist and other times were open. Tightness was found, particularly in the child’s lower extremities at the knees and ankles. His deep tendon reflexes were very brisk at 3+, but no ankle clonus was found and no tremors were observed. Two cognitive developmental tests administered to the infant arrived at opposite conclusions. The infant began occupational therapy in October 2014 and continued to receive it.

Experts/Discovery
	The ob/gyn expert believed the case was indefensible as to Dr. B. She believed the infant should have been delivered at 3:36 pm, and if he had been, he would have no issues. She believed a cesarean delivery was warranted at 4:20 pm. The expert did not fault Dr. A for delivering the child vaginally, given the time she arrived on the scene. A crash cesarean delivery performed after Dr. A had a chance to assess the situation, the expert said, would not have amounted to significant time-saving in the infant’s delivery.

The pediatric neurology expert believed the infant would be fine. Although the child may have some discoordination, his comprehension, the neurologist said, was normal. The expert also believed that the child might have some speech difficulty early but that it would improve with time. He believed the child would be enrolled in mainstream classes.

As for the 5- to 6-minute delay in intubating the infant until the pediatric resuscitation team arrived, the neurology expert pointed out that the infant was receiving (PPV), which did provide oxygenation. He did not believe that the time it took for the resuscitation team to arrive or the difficulty the pediatricians had intubating the infant represented a departure from standard of care. He agreed, however, that plaintiff counsel could make an argument that “every second counts.” Intubation would have been better in the long term, but medically, PPV was fine in the short term. He agreed that the infant suffered HIE.

The neonatology expert opined that this case established an incredibly clear, almost textbook case of what would be relatively acute perinatal asphyxia. He gave a lot of credit to the neonatal team and believed that the aggressive treatment they provided was adequate. The expert stated that the resuscitation was appropriate although there was a slight delay in intubation. He stated that the 6-minute delay did not correlate with the degree of abnormalities found on clinical exam.

Dr. B and Dr. A agreed that Dr. B’s assessment of the infant at critical times was lacking. They also agreed that Dr. B probably would not have communicated any issues to Dr. A because she did not appreciate them. The assumption was that she was so intent on delivery she did not appreciate what was occurring on the FHR monitor.

In reviewing the strips, Dr. A testified at deposition there were three decelerations between 10:55 and 10:59 am. Dr. B believed the nursing entry at that time, which reflected fetal bradycardia was incorrect and she disagreed with that assessment. She stated for that for fetal bradycardia, the infant’s heart rate had to remain there for 10 minutes and that did not occur. Dr. B was forced to acknowledge that from 2:08 pm through 5:06 pm, there were decelerations seen on each panel through time of delivery. She testified that did not mean there were recurrent decelerations the entire time but she did admit that there were portions of time that there were recurrent variable decelerations. 

At 3:34 pm, the patient was fully dilated and she started pushing with every contraction at 3:39 pm. Dr. B was asked why she did not administer terbutaline to help with the tachysystole. She testified that she wanted to deliver the baby and did not want to interfere with the patient’s contractions and pushing. Dr. B testified that tachysystole can occur during labor and can be normal. She stated that there was a late deceleration seen at 3:29 pm, which most likely was caused by the tachysystole. Dr. B stated it is “possible” this deceleration was a prolonged deceleration of 9 minutes because the FHR never seemed to fully recover to baseline. She stated this could be viewed as non-reassuring but testified that there was still moderate beat-to-beat variability and some loss of contact, so it was difficult for her to comment on this finding. Dr. B testified that at delivery, the infant was floppy with no spontaneous respirations. 

The testimony of Dr. A was that she did not believe she could have performed a cesarean delivery faster than she was able to deliver the infant vaginally.  To transport the patient to the operating room, get everyone set up, make the incisions, and top off the epidural anesthesia, she said, would have taken approximately 20 minutes, which is roughly the timeframe in which the infant was delivered from her arrival on the scene. Dr. A ultimately said that what is seen towards the end of the strips (fetal tachycardia, decreased beat-to-beat variability, and decelerations) could be consistent with hypoxia. Because there was a loss of contact towards the end on the FHR monitor strips, however, some of the strips were difficult to decipher. Dr. A stated that after delivery and when the infant’s arterial blood gas levels were obtained, what was seen on the FHR monitor strips toward the end could have been consistent with hypoxia. 
	 

The case was settled prior to trial for slightly under $4 million. Dr. B’s “failure” to appreciate the significance of fetal well-being, or lack thereof, as exhibited by non-reassuring FHR monitoring strips and to effectuate early caesarean delivery was too daunting a departure from acceptable practice to risk a trial and a jury’s verdict. While we were able to effectively tiptoe around the land mines of criticism during deposition, no such protections would have been afforded at trial, when both defendants’ criticisms of management were likely to be exposed. Dr. A’s opinions regarding Dr. B’s management of delivery until she arrived also would likely have proved damning. Efforts were made to limit defendants’ exposure during the discovery phase of the case, but once the opportunity presented itself to resolve the case within available insurance coverage rather than risk a jury’s verdict, we took the opportunity to do so.   

In this case, the question of fetal well-being as demonstrated on the FHR tracing is significant.

The importance of intervention: When was this baby in trouble?

The patient had a significant past medical history, including a gastric banding procedure for morbid obesity (body mass index 44), and admission for laparoscopic removal of the lap band when it “slipped.” Her various clinic records-primarily in gynecology/urology-documented a history of fibroid uterus with menorrhagia and an initial disinclination to undergo surgery to deal with it. 

Notes about surgery for the woman’s fibroids indicate that the procedure was scheduled for February 7 and express concern about “risk of operation.” On February 7, the patient was admitted to defendant hospital for the surgery, which was documented as having occurred from 10:50 a.m. to 12:16 p.m. The residents who assisted Defendant attending were Drs. A and B.  A vaginal hysterectomy was performed, and the woman’s right fallopian tube and right ovary were removed. Defendant attending indicated she could not completely visualize the left fallopian tube due to its adherence to the bowel.  

After surgery, the patient was admitted to the Post-Anesthesia Care Unit (PACU), where she stayed until approximately 4:30 p.m. At that time, her blood pressure (BP)  was 95/62, pulse 72.  The hemoglobin was 7.2 and the hematocrit was 25.2, both of which were consistent with the admission values. In addition, it was noted that “GYN aware and stated patient can be discharged to home,” and a correlating PACU nursing note entry timed at 4:30 p.m. stated that the patient was sleeping on and off, in very little pain, with no bleeding noted, that the complete blood count results were “seen by GYN” and that Drs. A and B stated that the patient could be discharged. The surgical specimens sent to pathology were fibroid uterus and cervix together with a right fallopian tube, although there was no mention of the ovary. The patient was instructed to present to the clinic within 2 weeks or to the Emergency Department if she had increased bleeding, fever, severe and/or persistent pain, and other related symptomatology.

In case you missed it - Was this uterine perforation properly managed?

On February 21 at 8:18 a.m., the woman presented to the Defendant hospital with a complaint of abdominal pain, swelling, and diarrhea for 1 day, and a history of “two weeks of fever and chills.” Vital signs revealed a BP of 106/94, pulse 102, and a temperature 98.5°F. Two hours later, the patient’s BP was 88/54, pulse 89, and temperature 98.3°F.  An abdominal x-ray documented no free air under the diaphragm and a follow-up computed tomography (CT) scan was scheduled.  Laboratory studies at that point were remarkable for a white blood cell (WBC) count of 16.4. The patient was admitted to the service of the OB/GYN attending, Dr. C. 

A PGY-2 GYN admission note documented that the patient had 2 weeks of “subjective” fevers, chills, and abdominal pain, as well as diarrhea. The progress note referred to the CT findings, which documented an “ill-defined collection of extra luminal gas pockets,” and an official report stated that the CT findings are “most concerning for abscess formation” without any suspicion of viscus perforation. Resident B countersigned the PGY-2 note and on the same page entered her own note stating, among other things, that the patient was now presenting with a “cuff abscess,” and that treatment would be intravenous antibiotics, which according to a February 22 PGY-3 OB/GYN note consisted specifically of vancomycin, cefepime, and metronidazole. The note also indicated that the patient’s pain was well controlled, she did not complain of bloating, and although she had fevers, there were no chills, nausea or vomiting.  She was noted to be tachycardic at that time. Her wound culture had grown gram-negative bacteria.  

A nursing note thereafter documented that the patient’s temperature was 100.3°F and she was complaining of pelvic discomfort. The PGY-3’s note 13 hours later stated that the patient’s pain was well controlled, her abdomen was soft and mildly distended with bowel sounds present and, WBC 16.0, and said that this is an “improving vaginal cuff abscess, with the patient still on antibiotic coverage.” A February 24 note by resident Dr. A stated that the woman’s pain was controlled, she was tolerating an oral diet, and she did not have fever, chills, night sweats, or peritoneal signs. Dr. A also noted decreased vaginal discharge and indicated that antibiotic coverage with vancomycin, cefepime, and metronidazole was to be continued. In the Assessment & Plan, Dr. A indicated “possible CT with contrast.” An “addendum” made by the PGY-4 approximately 1½ hours later indicated that the patient was still complaining of abdominal pain and that vaginal discharge was present, although she did not have a fever.  

The Defendant attending was consulted by phone and the plan discussed was a CT of the woman’s pelvis and abdomen, with a possible trip to the operating room to “open cuff and drain abscess.” The next significant note was made retrospectively at 6:00 p.m. by the Defendant. In it, previous events were described, including the findings of the aforementioned CT scan, and it stated that the patient did well after the February 7 surgery until prior to the emergent February 21 presentation. Defendant attending’s note referred to CT-documented free air and an increase in the size of the cuff abscess. The official report largely correlated with Defendant attending’s progress note reference, indicating that the large amount of loculated ascites of the abdomen and pelvis had markedly increased in size and that the extraluminal gas had been present and persistent since the February 21 scan, and was now suspicious for a perforated viscus.  

Defendant attending went on to note that she was calling for a general surgery consult to rule out occult bowel perforation and that she was awaiting the consult and entertaining the possibility of an exploratory laparotomy. The consult in question was performed by Dr. D, whose consult said the purpose was to rule out a perforated viscus. The note also indicated that the patient had developed progressive diffuse abdominal pain, nausea, vomiting, and subjective fevers over the past 2 weeks at home. Dr. D also documented that the patient was presenting with intra-abdominal ascites, and free air, all of which was concerning for a perforated viscus and bowel injury, and that a plan was being formulated to perform exploratory laparotomy.  The exploratory laparotomy was performed by Defendant attending and general surgeon Dr. E as primary physicians. According to the handwritten brief operative note, the preoperative diagnosis was perforated viscus and the postoperative diagnosis was sigmoid colon perforation with purulent peritonitis and abscess, with specific notation of a small perforation along the anterior aspect of the distal sigmoid. After initial intraoperative examination of the small bowel, further “exploration” revealed that there was a “small necrotic-appearing perforation in the lateral aspect of the rectosigmoid colon.” Repair of the perforation involved resection of the rectosigmoid colon and formation of a colostomy.  

Learn more about avoiding complications during laparoscopy

The patient was intubated in the intensive care unit for 24 hours and extubated on February 25. During the remainder of her hospitalization she received multiple consults, specifically by the medicine service, the infectious disease service, nutrition, general surgery, and gynecology. On March 3 an interventional radiology procedure was done to drain the woman’s abscess, and on March 10 there was a note concerning a proposed interventional radiology procedure, although it indicated that there was “nothing to drain. A note made on March 10, stated that “abscesses at this time overall are decreased,” but “not resolved.” The patient was discharged that day from the Defendant hospital site with Visiting Nurse Service arrangements having been made and instructions including ostomy management. On September 8, her colostomy was reversed and during that procedure,  her left fallopian tube and ovary also were removed, without the intervention of Defendant attending or anyone from the GYN service.

Plaintiff alleged that negligent attempts to remove fibroids and perform a vaginal hysterectomy resulted in perforation of the patient’s sigmoid colon, requiring surgical repair and a temporary colostomy and causing persistent pain and suffering. Plaintiff also alleged a delay in diagnosis and failure to timely consult with proper specialists such as surgery and infectious disease. A claim also was made of pain and suffering as well as scarring, sepsis, post-traumatic stress disorder and diminished sexual and intimate relations.  

Our urogynecology expert opined that the hysterectomy was indicated based on the patient’s history of fibroid uterus, menorrhagia, and resultant anemia. A vaginal approach was proper given her prior surgical history. The expert also opined that there was no evidence of a bowel perforation prior to discharge from the hospital after the surgery. He suggested that the perforation was delayed and likely a result of deserosilization.     

At her deposition, the patient claimed that she had a “tumor” from the colostomy incision and could not work secondary to pain. She testified that she was in pain from the time of the February 7 surgery through her return to the hospital on February 21. She stated her colon was perforated in three places and she was distraught at needing a colostomy. She required home care for a month after discharge and “went into a depression” because of the colostomy. It was discovered that the patient had been suffering from thyroid cancer since 2016. She further could not substantiate a lost earnings claim with any documentation.

The patient’s attorneys interposed a $2 million demand for settlement. They asserted through their trial experts that, in addition to the prior allegations of surgical negligence and delay, defendants failed to use less invasive treatments such as hormone therapy, hysteroscopy or endometrial ablation. Our expert countered that the woman’s fibroid was too large for alternative measures and neither hormones nor ablation would provide the definitive treatment the patient desired. He opined that consent was properly obtained and that the surgery itself was properly performed without clinical or radiographic evidence of a perforation at the time of the operation. The issues that went to the jury involved the propriety of the informed consent and the performance of the hysterectomy itself. After brief deliberation, a verdict was rendered in favor of the defendants.

Informed consent and surgical route are the main focuses of this case.

Author | Andrew I. Kaplan, Esq

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