Detecting abnormalities, documenting options


A California woman was 35-years-old when she delivered an infant with severe Down's syndrome and then sued all those involved with the prenatal care and alleged that both physicians were told the parents wanted all available testing because of a family history of birth defects. What's the verdict? Plus more cases.

A California woman was 35 years old when she delivered an infant in 2014, and the father was 51 years old. She was 10 weeks pregnant when she went to a clinic for care. She elected to participate in the state prenatal screening program, and the results of the screening tests were reported as within normal limits and the risk of birth defects was 1:230. Two weeks later she had her first appointment with an obstetrician and he informed her that the negative prenatal screening indicated that the infant most likely would be born without defects. He ordered an ultrasound to assess fetal structures. The radiologist reported that the ultrasound did not visualize the fetal anatomy well; however, the obstetrician allegedly told the patient at her next visit when she was 23 weeks that the ultrasound was normal. A month later the patient returned to her original physician who noticed that the ultrasound report indicated that the fetal survey was not complete. He ordered another ultrasound with a perinatologist. A significant cardiac defect in the fetal heart was found, and further testing confirmed the fetus had Down syndrome. The patient was scheduled for a late term abortion but she did not keep that appointment, fearing that it was illegal. The infant was born and has severe Down syndrome.

The parents sued all those involved with the prenatal care and alleged that both physicians were told the parents wanted all available testing because of a family history of birth defects, and that they would terminate the pregnancy if fetal abnormalities were found. They contended that the obstetrician was obligated to discuss diagnostic testing such as amniocentesis with the patient despite the negative screening tests and, because he did not, the diagnosis was made too late to terminate the pregnancy. The patient testified she never heard of amniocentesis until she was seen by the perinatologist.The obstetrician denied having any discussions with the parents of their desire to have all tests possible or their wanting to terminate the pregnancy if abnormalities were found. He stated that the difficulty in visualizing the fetus in the second trimester was not uncommon and that he would have routinely ordered a follow-up ultrasound. He also argued that he was not responsible for discussing all prenatal testing with the parents since that discussion should happen in the first trimester when she was seeing her original physician; so he assumed that discussion had already taken place. Further, the defense argued that a prenatal screening pamphlet, which the patient signed at 10 weeks gestation, discussed amniocentesis as a diagnostic test. The jury returned a defense verdict after 4 1/2 hours of deliberations.

Verdict: A defense was returned


In medical malpractice cases that involve delivery of an infant with an abnormality that can be detected by a specific laboratory test, like Down syndrome, the parents must show that the physician was below the standard of care in not offering the test, and they also must show they would have terminated the pregnancy had they known of the abnormality. In this case, even though the patient testified that she had not heard of amniocentesis until too late, there was contradicting testimony. The infant’s grandmother testified that she had a conversation about amniocentesis with the parents early in their pregnancy. In addition, a former employee of the obstetrician’s office testified that after the Down syndrome diagnosis was made she asked the patient why she had not chosen amniocentesis earlier in the pregnancy, and the patient said she decided against it because her prenatal screening test was normal. So not only had she heard of amniocentesis, according to the employee’s recollection she had made the choice not to have it much earlier in the pregnancy.


Claim that episiotomy led to fistula

A 31-year-old woman delivered her child at a New York hospital. During delivery of the head the obstetrician noticed the umbilical cord was wrapped around the neck. He performed an episiotomy and the infant was delivered safely. The next day the patient alleged she told the obstetrician that she noticed an odor from her vagina, and he told her it was a natural occurrence following delivery and would resolve. The woman soon became pregnant again and was examined by a midwife. The patient said she told the midwife about the odor, but there was no mention of it in the midwife’s notes. When she saw the same obstetrician from the previous delivery he determined she could delivery vaginally. After the delivery, the obstetrician then diagnosed a recto-vaginal fistula, which required 13 operations to repair.

The woman sued the physician and hospital and alleged that the fistula was caused by the episiotomy from the first delivery. She claimed the episiotomy should not have been done and that the obstetrician should have diagnosed and treated the fistula earlier, which would have prevented the many procedures needed to repair it. She also alleged that the second delivery should have been a cesarean and that the obstetrician’s decision to allow a vaginal delivery exacerbated the fistula. She claimed the caregivers should have investigated her complaint of the odorous discharge earlier which would have allowed an easier repair prior to the second delivery.

The defense argued the patient’s medical records showed no indication of the complaint of odor until after the delivery of her second child so he could not have provided earlier treatment. He also contended that the patient’s fistula was due to a malformation, not the episiotomy. A $50 million verdict was returned including $10 million personal injury, past pain and suffering, and $40 million personal injury future pain and suffering.

Alleged failure to timely diagnose breast cancer

A 44-year-old Arizona woman sued her gynecologist and claimed the doctor failed to diagnose breast cancer for 2 years, so that she required a mastectomy rather than a lumpectomy as treatment. The patient’s expert opined that the delay resulted in a 70% survival rate as opposed to a 90% rate had there been a timely diagnosis.

The gynecologist denied that the patient’s chance of survival had been reduced. The jury returned a defense verdict after deliberating a little over 5 hours following an 8-day trial.


Ovarian cyst removal results in sigmoid colon injury

A New York woman in her forties underwent surgical removal of a cyst on her ovary, performed by her gynecologist. Over the next few days the patient experienced severe abdominal pain. Tests showed varying amounts of white blood cells in her blood and she underwent exploratory surgery which revealed a tear in her sigmoid colon. She had a colostomy and a follow-up operation after that.

The patient sued the gynecologist and hospital and alleged they failed to properly perform the initial surgery– even though the tear was a known risk of the operation – and that he failed to diagnose and treat the injury in a timely manner. She claimed she had 10 days of symptoms that should have prompted more immediate action from the gynecologist, thereby avoiding the need for the colostomy.

The defense maintained that the operation was not the cause of the injury to the colon, that the surgery did not take place near the sigmoid colon, but that injury to the bowel is an accepted risk to that procedure and days can pass before injuries can be identified. After deliberating for 4 1/2 hours at the conclusion of a 7-day trial, the jury returned a verdict in the amount of $1,520,000, including $20,000 past lost earnings capability; $700,000 past pain and suffering; and $800,000 future pain and suffering.

Delay in fetal monitoring with decreased fetal movement

A 34-year-old Georgia woman was at 35 weeks gestation of her second pregnancy when she presented to her obstetrician for routine prenatal care. She had gestational diabetes and her visit was unremarkable. Two days later, the patient presented back to the office with complaints of decreased fetal movement. She was admitted to the hospital for continuous fetal monitoring, consultation with a perinatologist, and possible delivery. She was not placed on the fetal monitor until 2 hours after arrival, and 1 hour later, the perinatologist was consulted by phone and ordered a biophysical profile (BPP). Six hours after her arrival the BPP was performed and an emergency cesarean was done. The infant was diagnosed with spastic quadriplegic cerebral palsy, profound developmental delays, cortical blindness, and seizures. The infant requires around-the-clock care. She is at home with her mother and will never walk or talk, or care for herself.

The parents sued those involved and claimed the infant’s injuries were due to mismanagement of the mother’s labor and the delivery. They alleged that immediate BPP should have been performed which was the standard of care with decreased fetal movement but was not ordered until almost 4 hours after the patient was admitted to the hospital. They asserted that 3 ultrasonographers were on duty at the time the patient was at the hospital and any one of them could have performed the essential test immediately, as hospital protocol requires. One ultrasound tech was allegedly on break; another was performing other tests; and the third was not notified of the BPP order because of a problem with the hospital’s ordering system.

The defense claimed that the infant’s issues were a result of her mother’s failure to keep her gestational diabetes under control and that any injury occurred prior to her arrival at the hospital when she noted decreased fetal movement. After deliberating 9 hours at the conclusion of a 3-week trial, a $30,545,655 verdict was returned, including $27,045,655 to the child for future medical costs and $3,500,000 to the mother for past and future pain and suffering.

Claim of delay in diagnosis of breast cancer

A New York woman in her fifties learned she had breast cancer and underwent a bilateral mastectomy, chemotherapy and radiation. The cancer was found in the same spots as microcalcifications that were seen on a mammogram 1 year earlier but, at that time the radiologist did not think the microcalcifications necessitated further testing.

The patient sued the radiologist and alleged he failed to timely diagnose her cancer, that his supervisors failed to properly oversee him, and that her mammogram suggested possible cancer and further testing should have been done at that time. She claimed if the cancer had been detected a year earlier she could have undergone a less-invasive treatment. She also claimed she had a family history of cancer which presented another reason for her mammogram to have been taken more seriously.

The radiologist argued that the patient had dense breasts that contained a large amount of fibroglandular tissue which reduced the sensitivity and reliability of mammograms. He claimed he properly interpreted the mammogram and that it had not changed from an earlier mammogram that had revealed 1 or 2 benign calcifications which did not require further screening. The jury returned a defense verdict after deliberating 3 hours at the conclusion of a 10-day trial.

Claim of unnecessary hysterectomy

A 41-year-old Pennsylvania woman who had been diagnosed with endometrial cancer underwent a robot-assisted hysterectomy and lymph node dissection performed by her gynecologist. Shortly after her diagnosis, at the consultation with her gynecologist, she had signed a “consent to surgery/anesthesia” form, in which she agreed to the operation or other procedures. After the surgery was performed the patient learned that the pathology department determined that the endometrial samples were “pre-cancerous” and that the gynecologist did not inform her of this fact and went ahead with the operation. The pathology report from the specimens taken during the operation showed that there was no evidence of cancer.

The woman sued the gynecologist alleging he was negligent for failing to inform the patient of her pathology results and for performing unnecessary surgery which caused long-term consequences. She claimed the standard of care was violated because the physician failed to rely on the pathology results of ‘pre-cancerous’ cells and thus recommended she undergo a hysterectomy, which was not required.

The gynecologist asserted that he was aware of the pathology results and so was the patient. They had discussed the results and the surgery was offered to the patient as an option. She had consented to it, which was reasonable in that she previously had a report of “pre-cancerous” cells which could evolve into cancer any time. The jury returned a defense verdict at the conclusion of a 4-day trial.


Complications after anterior/posterior repair with mesh

A Nevada woman underwent a laparoscopic vaginal hysterectomy with removal of both ovaries and fallopian tubes in 2010. The gynecologist then performed anterior and posterior repairs using mesh. The patient complained of vaginal discharge along with pain and bleeding shortly after surgery. She was treated with at least 2 courses of antibiotics and underwent an abdominal-pelvic CT scan for pelvic pain. She was diagnosed with vaginal cuff granulations as a cause of her vaginal discharge and pain. Her pain continued, and 10 months after her original surgery she underwent a vaginal tissue biopsy. The testing noted fecal material present and a small bowel-vaginal fistula was diagnosed. She then underwent a laparoscopic enterectomy, urethral Iysis, anomental pedicle flap, and a cystoscopy. On laparoscopic examination, there was a clear perforation of what appeared to be Gore-Tex mesh or graft material through the loop of the small bowel. One year after the initial operation the patient then experienced increased spinal pain, and a lumbar MRI revealed new fluid/abscess in the disk extending through the tract anterior into the soft tissues of the pelvis. She underwent intensive antibiotic therapy in the hospital and at home for a prolonged period.

The woman sued the gynecologist and alleged he fell below the standard of care in his treatment of her conditions.

The gynecologist denied all allegations and the jury returned a defense verdict.

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