Did negligence or nature cause this miscarriage?


A patient sues, claiming that an ob consult could have saved her pregnancy.



Andrew I. Kaplan, Esq, is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, New York, specializing in medical malpractice defense and health care litigation. This case was successfully tried by his partner Robert Cecala, Esq.


A 20-year-old woman presented to a hospital on July 20, 2009, at 2:55 am complaining of abdominal pain. She was triaged immediately and noted to be 18 ½ weeks pregnant and receiving prenatal care at an ob/gyn clinic. Her medical history was significant for ovarian cancer (Stage 1C), with surgical treatment consisting of a right oophorectomy in August 2008, followed by chemotherapy, which ended in November 2008.

Based upon an ob consult sheet by a third-year resident (PGY-3), it appeared that the first treatment the patient received for this pregnancy was during an emergency department (ED) visit on April 27, 2009. During that presentation, the patient claimed that the date of her last menstrual period (LMP) was March 20 to March 25, 2009 and she complained of pelvic pressure and vomiting for 2 days. She denied any vaginal bleeding. The PGY-3 believed she had a likely intrauterine pregnancy (IUP) and instructed her to follow up the next day at the high-risk ob/gyn clinic and undergo an ultrasound (U/S). There was no evidence that consult took place. The plaintiff did not present to the clinic until May 20, when everything was noted to be normal. At her next clinic visit on June 12, her estimated date of delivery (EDD) was December 25, 2009. At another clinic visit on June 24, everything was again noted to be normal. A fetal anatomy scan was to be performed in July.

During the July 20 ED presentation at issue, the patient denied vaginal bleeding or discharge, back pain, fever, or chills, but she claimed she felt as if she were “having a miscarriage.” The patient was seen by an emergency medicine (EM) PGY-2 resident and an EM attending physician at 5:11 am. A bedside U/S was done by both doctors, which showed an IUP and fetal heart rate (FHR) in the 150s. No pelvic examination was performed. The discharge plan was to have the patient follow up with the ob/gyn clinic the next day.



The plaintiff was discharged by the doctors at approximately 5:35 a.m. But at 6:22 a.m. she was “undischarged,” with a complaint of suprapubic pressure and a gush of bloody fluid. She was seen by the triage nurse at 6:23 a.m. Reassessment was timed at 6:41 a.m. by the attending physician. A physical exam revealed a closed external os with no bulging. A repeat U/S showed little to no fluid around the fetus with decreased fetal movement, but a detectable FHR. An ob consult was provided by a PGY-1, who noted that the initial presentation related to “abdominal pain and spotting.” The patient now had vaginal bleeding, confirmed by exam, and it was noted “10 cc clot removed.” Fetal parts were noted at the os. Ultrasound revealed no FHR, anterior placenta, or amniotic fluid index. Impression was 18 week/5 day pregnancy actively miscarrying, hemodynamically stable. The patient was to be admitted for dilation and evacuation (D & E), to take place at the defendant’s “sister” hospital if no physician were available to perform the D & E.

Per a note by a PGY-3, D & E versus misoprostol induction was discussed with the patient, but there was no attending available at the defendant hospital to perform the D & E, and the plan was to transfer the patient. A note timed at 11:15 a.m. confirmed acceptance of the transfer for inevitable abortion. There was moderate bleeding and no detectable FHR on U/S. The patient eventually opted for misoprostol induction, which was performed by attending obs at the sister hospital. At 2:30 p.m., a stillborn fetus in the footling breech position was delivered. The placenta was grossly intact at delivery. Pathologic evaluation of the placenta revealed acute and chronic chorioamnionitis as well as focal marginal hemorrhagic areas. A gross pathology exam showed an intact male fetus weighing 185.6 g, with all other parameters seeming normal.

The patient continued treatment in the defendant hospital’s oncology clinic for another year. She subsequently became pregnant again and sought treatment at the defendant prenatal clinic. During that pregnancy, she presented to the defendant ED on January 22, 2010, with complaints of vaginal bleeding and was initially assessed but left against medical advice. The prenatal records for the second pregnancy indicate the possibility of a cerclage because of cervical incompetence during her first pregnancy. A cerclage was never placed, however, because it was determined that the miscarriage was because of placental abruption and not cervical incompetence. The second pregnancy ended in the birth of the woman’s first child.


NEXT: Allegations >>




The plaintiffs alleged that the defendants’ negligence caused the stillbirth of their first child. They claimed to suffer permanent emotional distress and psychological injuries resulting from the stillbirth. The plaintiffs also claimed that the ED doctors failed to contact the ob/gyn department and/or to admit the patient during the first presentation on July 20th and also that a negligent pelvic exam was performed during the plaintiff’s representation later that morning. The plaintiffs also claimed that the miscarriage could have been prevented had the patient been admitted during the first presentation, and that the resident was excessively “forceful” during a pelvic examination during the representation, resulting in the miscarriage.


The plaintiff and her husband at first claimed that the patient was bleeding during the initial ED presentation but later backed off from that position in their deposition testimony. Hospital records show that the plaintiff waited about 2 hours to be seen by a physician in the ED, but the plaintiff claimed it took 5 to 6 hours. While the plaintiff claimed she “begged” for an ob/gyn consult and was refused one during this presentation, the ED resident testified that he and the attending physician called an ob/gyn on the telephone, who agreed with the plan to have the patient seen the next day in the ob/gyn clinic.

The resident testified that the patient and her husband never left the hospital, saying that after going through the paperwork for being discharged, the patient used the hospital bathroom and immediately came back to the ED complaining of bloody discharge (the plaintiffs denied this and claimed they went home, the patient used the bathroom there, and they immediately returned to the hospital). The plaintiff’s husband testified that there was no fluid discharge until after one of the physicians stuck his arm inside the patient’s vagina “up to his elbow.” They also claimed they were not seen immediately because the doctors were “lying down” when they returned to the ED. The plaintiffs disputed the misoprostol induction and claimed they were ignored and left alone in the room, where the stillborn infant was “delivered” alone by them into a waste pan.

Our expert ob stated that no departures from the standard of care occurred during the course of the plaintiff’s treatment at the defendant hospital and that no act or omission was the proximate cause of “the unavoidable miscarriage.” During the plaintiff’s initial presentation and treatment on July 20, the physical exam was normal and the plaintiff denied bleeding, back pain, fever, or chills. Although it would have been optimal to conduct a cervical exam or obtain an ob consult at that time, the failure to conduct one was not a deviation from the standard of care because it was a medical judgment call and there was no vaginal bleeding.

Our EM expert stated that the claims would be difficult for the plaintiffs to advance with credible medical support. Because the plaintiff was only 18 1/2 weeks pregnant, there was no requirement to send her to the ob floor because the fetus was not viable. The patient was essentially told to follow up with her ob provider, which was appropriate. As for the “forceful” exam, the claim that the resident roughly stuck his arm into the patient up to his elbow was incredible and implausible, and the cervix does not “open up” by touching it digitally, so this could not have caused the miscarriage.


NEXT: The trial >>



The trial

At trial, the plaintiff’s ob expert’s opinion was that during the first ER visit, the plaintiff's internal os was funneling and the only way to find that out was by transvaginal U/S. He also said it was a departure to not perform a vaginal exam on that visit as well. He claimed that the plaintiff's complaint of slight pelvic pressure, the feeling that her "belly dropped,” coupled with her history of having a D & C 1 year before, mandated these tests and consideration of an incompetent cervix. If a transvaginal U/S had been done, he believed, it would have shown that the internal os was open and a cerclage could have saved the pregnancy. On cross-examination, however, he admitted, based on the subsequent vaginal exam performed when the patient returned to the ED, that it showed a closed external os and it would have been closed on the initial ED visit. He also could not point to anything in the records to contradict the testimony of the resident that there was no shortening of the cervix upon the later exam. Thus there would have been no shortening earlier at the initial ED visit.

He also said that there will “always” be shortening of the cervix before the internal os starts to funnel. Because there was no shortening in this case, despite his earlier testimony, he wouldn't concede that there was no funneling of the internal os during the initial ED visit, impugning his own credibility.


He admitted that the transabdominal U/S performed during the first ED visit showed the fetus in the uterus and the subsequent transvaginal U/S still showed it in the uterus, not in the cervix. He also admitted that once a miscarriage begins, it can progress quickly. This supported our position that the finding of fetal parts at the os at 7 a.m. was consistent with a miscarriage and not an incompetent cervix. Our expert held firm that there was no indication for cerclage in this case and whether to obtain an ob consult was a judgment call and did not affect the unpreventable outcome.


NEXT: The verdict >>



The verdict

After brief deliberation, a verdict was rendered in favor of the defendants.


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