A high/low agreement usually is done to prevent a “runaway” jury from coming back with an unreasonably high award, but ensures the plaintiff of something because they are agreeing to a lower amount than what the jury might have awarded.
Dawn Collins, JD
Ms. Collins is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to email@example.com.
An Illinois woman received prenatal care from her obstetrician during her pregnancy in 2005. Her first delivery, in 2004, was vaginal and complicated by a shoulder dystocia but the infant had no injury. The obstetrician who performed that delivery recommended that all of the woman’s future deliveries be by cesarean. During the second pregnancy, which was managed by a different obstetrician, the patient discussed with that doctor the possibility of a trial of labor and vaginal delivery. She went into labor at about 37 weeks’ gestation and was admitted to the hospital. The obstetrician believed the fetus was a size favorable for vaginal delivery, but once the head delivered, a shoulder dystocia was encountered. Various maneuvers were performed to deliver the fetus, which occurred after about 5 minutes. The infant had no signs of life and 0 Apgar scores for over 14 minutes and was air-lifted to another hospital. He was diagnosed with hypoxic ischemic encephalopathy and a C5-6 brachial plexus injury. He was subsequently diagnosed with neurocognitive deficits including attention deficit hyperactivity disorder.
In the lawsuit that followed, the patient claimed the obstetrician was negligent in failing to fully explain the risks of vaginal delivery, failing to recommend a cesarean, failing to perform an ultrasound when she was admitted, failing to perform an episiotomy after the shoulder was stuck, and for applying excessive traction. She claimed an ultrasound would have shown the fetus was larger than her first baby, which would have led to a cesarean delivery.
The obstetrician claimed that he extensively counseled the patient on the risks of vaginal delivery, but admitted that he did not recommend a cesarean delivery and argued that an ultrasound would not have changed the plan for trial of labor. He also claimed that an episiotomy would have been of no benefit and that a moderate amount of traction was necessary after the other maneuvers were employed to accomplish the delivery and prevent more severe brain damage or death. He argued that the child’s current deficits were not related to his birth.
The hospital settled for $85,000 prior to trial and the jury returned a defense verdict.
In this case, the parties had come to an understanding known as a high/low agreement before the jury reached a verdict. The low amount is the sum that the plaintiff will receive if there is a verdict for the defense and the high amount is what the plaintiff will receive if a plaintiff’s verdict is returned, regardless of the amount the jury awards. All parties to the lawsuit agree to the amounts. A high/low agreement usually is done to prevent a “runaway” jury from coming back with an unreasonably high award, but ensures the plaintiff of something because they are agreeing to a lower amount than what the jury might have awarded. Here, the high/low agreement was for $1 million/$200,000, thus, the plaintiff would receive the $200,000 because it was a defense verdict.
A Florida woman went to the hospital in 2011 to deliver her child. A cesarean section was performed and a portion of the infant’s ear was cut off during the operation. The patient sued the obstetrician, alleging negligence in injuring the ear and in failing to save the piece of the ear that was cut off.
A defense verdict was returned.
Perforated bowel following lysis of adhesions
A 39-year-old Virginia woman went to the gynecologist in 2004 with complaints of pelvic pain, dyspareunia, and urinary frequency. She had a history of hysterectomy, pelvic adhesions, lysis of pelvic adhesions, childhood sexual abuse, and of psychiatric conditions that required multiple hospitalizations. She was examined by the nurse midwife and an ultrasound and pain medications were ordered.
About 3 weeks later, the patient returned to the office and was given treatment options that included surgery or medical therapy. The patient chose to undergo laparoscopic lysis of adhesions and when the operation was performed, extensive and dense adhesions were found in the pelvis and abdomen. Limited lysis of adhesions was performed. Two days after surgery, the patient came to the emergency room with abdominal pain and vomiting. She was admitted and several hours later her condition declined and a surgeon was consulted. She was diagnosed with a perforated bowel and taken for exploratory laparotomy. A volvulus of the sigmoid colon was found and the surgeon performed extensive lysis of adhesions, a Hartmann’s procedure, and a temporary colostomy. The patient developed acute respiratory distress syndrome, which required mechanical ventilation, sepsis, and anemia and necessitated a lengthy hospitalization and recovery. She also required operations to correct hernias.
The woman sued the gynecologist and alleged negligence in the failure to consult her psychiatrist before recommending surgery and performing the lysis of adhesions. She also claimed that the lysis of adhesions was unnecessary to relieve the pelvic pain and that mental health treatment and non-surgical treatment would have resolved the dyspareunia and pelvic pain.
The physician claimed that the patient's pelvic pain and dyspareunia were due to adhesions that could not have been successfully treatment by a psychiatrist or without surgery because she was not a candidate for pain management due to her history of substance abuse and lack of compliance with previous medical care. He denied that consultation with a psychiatrist was needed. Further, he claimed that the patient's bowel problems were due to a perforated viscous from the sigmoid volvulus and were not caused by the lysis of adhesions.
A defense verdict was returned.
Alleged delay in diagnosis of breast cancer
A Michigan woman complained to her gynecologist of a breast lump but he could not palpate any lump. He ordered a mammogram, which was negative, and recommended that she return in 12 months. Eleven months later, the patient went to a surgeon who performed a biopsy, which diagnosed ductal carcinoma. She underwent a mastectomy and sued her gynecologist, claiming that the 11-month delay allowed the cancer to grow, necessitating the mastectomy instead of a lumpectomy.
The physician claimed there was no negligence in the woman’s care and that the cancer had not changed from one stage to another in the 11 months, so the patient’s outcome had not been changed.
A defense verdict was returned.
Failure to diagnose group B strep after cesarean
A 33-year-old Delaware woman went to the hospital for the delivery of her first child, a boy who was born healthy by cesarean section. Three days after delivery, she experienced a fever, tachycardia, tachypnea, decreased oxygen saturation, and heart palpitations. A chest x-ray revealed cardiomegaly. The patient was seen the next day by two physicians and she was discharged with a visiting nurse to follow up the next day. The nurse referred the patient back to her attending obstetrician and she was examined. The next day a nurse again saw her and noted complaints of dizziness with oxygen saturation of 90%. The visiting nurse claimed she reported these findings to a nurse in the attending obstetrician’s office. The nurse in the office denied that the oxygen saturation was communicated to her, and the physician was never made aware of the oxygen status. No further treatment was provided and the woman died 2 days later, with the cause of death being a group B Streptococcus that had come from the uterus and spread to her heart and brain.
A lawsuit was filed on the patient’s behalf, alleging negligence in the failure of all physicians to treat her with antibiotics or to request an infectious disease consult when she first had fever, tachycardia, decreased oxygen status, and cardiomegaly or at the time of any of the follow-up visits and examinations.
The suit was settled for $2 million.
Injury to ureter during cesarean
A Mississippi woman underwent a cesarean delivery in 1998. During the operation, the obstetrician identified a uterine laceration and it was repaired. He had some concern about the ureter and ordered an intravenous pyelogram the next day, which showed an obstruction in urine flow. A urologist surgically repaired the ureter. The patient required a nephrostomy bag for 6 months, which was then reversed, and she made a complete recovery.
The woman sued the obstetrician and alleged negligence in his suturing of the ureter and failure to immediately recognize and repair the ureter injury, contending that the delay in repairing it the next day necessitated the nephrostomy bag.
The physician denied that he had sutured the ureter at all, but claimed that if he did it was a known complication from a cesarean. He also argued that requesting a urologist to do the repair was appropriate and that the patient made a complete recovery.
The jury returned a verdict for the patient in the amount of $484,141. A post-trial motion by the physician for a new trial was pending.
Woman requests no male examiners during labor
A 34-year-old Washington woman with a history of sexual assault many years before did not want a male physician performing vaginal examinations. When she became pregnant she received care from nurse midwives. A miscommunication between medical care providers while she was in labor resulted in her undergoing a vaginal examination by a male physician.
The woman sued those involved with her care, claiming that the nurse midwives failed to document in her labor and delivery chart her request for no male examiners and claimed lack of informed consent against the male physician. She alleged that caused her emotional distress.
The jury returned a verdict for the patient and against the male physician and his group, and awarded her $270,000, including $45,000 for her husband’s loss of consortium.
Excessive traction blamed for brachial plexus injury
An Indiana woman sued her obstetrician over a delivery that occurred in 1994. A shoulder dystocia was encountered during delivery and the child suffered a brachial plexus injury which left her disabled. The patient alleged that the physician used excessive traction to free the shoulder and deliver the child. The case was filed while the child was still a minor but she reached the age of majority during the pendency of the suit and the mother was removed as a party.
The obstetrician denied any negligence and claimed the injury happened when the shoulder was impacted and that she had used the correct maneuvers to deliver the child.
A $235,000 verdict was returned.
Perforated bowel during hysteroscopy
A 62-year-old Virginia woman underwent a routine dilation and curettage and hysteroscopy in 2008. The procedure was intended to diagnose and treat abnormal bleeding and was performed by her gynecologist. The patient had a retroverted uterus and the hysterscope revealed uterine polyps of about 3 cm. During the procedure the uterus and small intestine were perforated while the physician was removing a polyp. As the doctor pulled the device out to remove the polyp, the small intestine was pulled through the uterine wall, temporarily plugging the uterine perforation. The perforations were not recognized at the time and the patient was discharged the same day. The next day she communicated to the doctor that she was vomiting and had significant abdominal pain and was unable to void. The physician attributed the symptoms to anesthesia and told her to allow more time for the symptoms to resolve. The patient went to an emergency room 48 hours later with an extended abdomen and pain. She was diagnosed with acute sepsis and transferred to a regional hospital. A small bowel perforation was diagnosed and the plaintiff required extensive follow-up operations and treatment, including 16 hospital admissions. She underwent removal of her uterus and 27 cm of her small bowel. She had scarring from her breast to her pubic region.
The woman sued the gynecologist and claimed that she made a blind attempt to remove the polyps despite being aware of the tipped uterus and failed to recognize the injury intraoperatively. The patient also claimed that the doctor failed to appreciate her worsening symptoms when she was told of them.
The gynecologist claimed that bowel and uterine perforations are known risks of the surgery and denied any negligence. She also claimed that the patient's complaints on the day after surgery could reasonably be associated with post-anesthesia residuals.
A $5 million verdict was returned, which was reduced to $2 million pursuant to the statutory cap.