Injuries from known risks may lead to monetary awards

May 01, 2014

Injuries from known risks lead to different lawsuit outcomes.

 

A 32-year-old Tennessee woman went to a gynecologist with a history of bleeding from a uterine polyp for 3 months. A laparoscopic-assisted vaginal hysterectomy was recommended and performed. After the surgery, blood was noted in the patient’s urine and a urology consult was obtained. The urologist identified a surgical injury to the bladder and performed a bladder reconstruction. The woman recovered but still complains of urgency and stress incontinence.

The woman sued the gynecologist and claimed that the doctor should have offered a less-invasive endometrial ablation procedure, and that she failed to properly identify anatomy during the operation and thus nicked the bladder.

The physician countered that the operation was necessary and properly performed, and contended that bladder injury is a known risk of the procedure and was identified and treated in a timely manner.

The verdict

The first trial resulted in a hung jury. At a second trial, a defense verdict was returned.

A 35-year-old New York woman underwent laparoscopic surgery in 2007 for removal of a cyst on her left ovary. The operation was performed by a gynecologist and during the procedure, the patient’s aorta was punctured. She underwent immediate surgery to repair the puncture, but lost more than half of her blood volume. She was hospitalized for 5 days but eventually recovered.

The woman sued the gynecologist and claimed that she has a residual scar from the surgery and is at increased risk of developing adhesions. She claimed the injury was due to improper insertion of the laparoscopic instruments.

The physician claimed that the laparoscopy was performed correctly, the instruments were properly inserted, and that the complication was a known risk of the procedure. The patient countered that the injury was a risk of the procedure for obese patients, but she was not obese.

The verdict

A $4 million verdict was returned, which included $500,000 for the plaintiff’s husband.

 

NEXT: AN ANALYSIS OF THESE TWO CASES >>

 

Analysis

In medical malpractice lawsuits in which the claim is that the patient suffered injury from a known risk or complication, the usual issues are timely recognition and appropriate management. And some type of injury for which the patient can be compensated by a monetary award must be shown, usually ongoing or long-term damages.

In the 2 cases above, known complications were recognized in a timely fashion and treated appropriately, but with disparate results in their verdicts. An aortic puncture is a serious complication from which the patient essentially recovered with only a larger scar than anticipated and the possibility of adhesions in the future. Of course there may be other circumstances not reported here that account for the incongruity in verdicts, including that they were tried in different states. Known complications can happen without negligence, however, and in general, reasonably timely recognition and treatment should be a defense in these lawsuits.

Failure to inform patient of shoulder dystocia in previous delivery results in injury

An Oregon woman delivered her third child in 1999. The delivery was complicated by a shoulder dystocia and the infant weighed 4135 g. The shoulder dystocia was relieved by the obstetrician and the infant did not have any resulting injury. The patient was unaware of the shoulder dystocia, but the physician documented it and the maneuvers used to dislodge the shoulder in the medical record. The woman then became pregnant with her fourth child in 2004 and returned to the same medical group. The original obstetrician no longer worked there and she saw a different obstetrician for prenatal care. A review of the previous delivery was made and the notation regarding the history of shoulder dystocia was transferred to the current pregnancy record. An ultrasound (U/S) was performed in the third trimester and found the fetus large for gestational age with an estimated weight of 3964 g.

The decision was made to induce labor 1 to 2 weeks early, but the patient went into labor before the scheduled induction. The primary obstetrician was not on call and another doctor assumed care of the patient. That obstetrician asked the patient if she had any complications during previous deliveries and she replied no. The prenatal record sent to the hospital earlier did not contain the note regarding the previous shoulder dystocia or the results of the U/S and estimated fetal weight.

A shoulder dystocia was encountered and the infant had bruises on his arm, shoulder, and chest area and had limited range of motion in the neonatal intensive care unit. He was ultimately diagnosed with a brachial plexus injury.

The woman sued those involved with this delivery and alleged negligence in the failure to inform her of the shoulder dystocia in the previous delivery or the estimated fetal size from the U/S. She claimed the obstetrician did not tell her of any increased risk of another shoulder dystocia or discuss a cesarean delivery. She argued that a cesarean should have been offered due to the increased risk of another shoulder dystocia during this delivery.

The verdict

A $1.9 million verdict was returned. The application of the state’s cap on noneconomic damages was appealed, resulting in the Oregon Supreme Court finding the cap unconstitutional.

 

 

Early discharge from hospital after delivery blamed for infection

A 32-year-old Michigan woman delivered her infant at a hospital and left within a few hours because her mother was ill. Before she left, she complained of severe abdominal pain and was examined by a first-year resident. She returned to the hospital 6 hours later and was diagnosed with a severe uterine infection. She was hospitalized for a month and at one point was not expected to survive, but she eventually recovered.

The woman sued those involved with the delivery and claimed that the resident was negligent in failing to properly assess her complaints, failing to order any testing, and in allowing her to leave the hospital.

The defense claimed that the patient had already decided to leave the hospital and that she may have developed the infection after leaving the hospital.

The verdict

A $285,000 verdict was returned, with the patient being held 40% at fault, and the final judgment, which included interest, costs, and attorney fees, was for $261,000. 

Delay in diagnosis of endometrial cancer

A 68-year-old postmenopausal woman began having vaginal spotting and went to her gynecologist at a California medical center in 2006. An endometrial biopsy was negative and no diagnosis was made after 2 months. The patient then went to another gynecologist at the same facility for a second opinion. A dilation and curettage was performed and a diagnosis of Grade IB endometrial cancer was made. She underwent a hysterectomy with bilateral salpingo-oophorectomy.

Eighteen months later, the woman was diagnosed with metastatic cancer of the pelvis and pelvic and para-aortic lymph nodes.  She had further surgery, but died in 2008 due to the
metastatic cancer.

In the lawsuit that followed, negligence was alleged in failing to timely diagnose the woman’s condition and failing to obtain proper informed consent for the hysterectomy. Specifically, the claim was made that the physician performing the hysterectomy should have recommended a pelvic lymphadenectomy, based on the assumption that the cancer had already metastasized at the time of surgery and that lymphadenectomy was the only way to accurately stage the cancer.

The physicians argued that the care and treatment provided were appropriate and that performing a lymphadenectomy would have exposed the patient to a significant risk of morbidity.

The verdict

A $750,000 verdict was returned, which was reduced to $250,000 as required by state caps.

 

 

Bowel perforation during removal of ovarian tissue

A New York woman was in her mid-40s when she went to her gynecologist in 2008 claiming to have pain in the lower left side of her abdomen. She had previously undergone an oophorectomy, but the surgeon’s report indicated that he had not removed tissue that was attached to the bowel. The gynecologist opined that the patient’s pain was due to the remaining ovarian tissue and she recommended surgery to remove it. During the procedure the patient’s bowel was perforated. She required 4 additional surgeries, including resection of the bowel with creation of a colostomy and colostomy reversal after 5 months.

The patient sued the gynecologist and alleged negligence in failing to properly perform the operation and in failing to properly address the underlying condition before performing surgery. She contended that she was suffering ovarian remnant syndrome, which could have been treated with medication to induce menopause. She also contended that the report from the ovary removal indicated there were extensive adhesions and this increased the risk of complications from surgery to remove the remnant.

The gynecologist claimed that the patient could have suffered injury from medication-induced menopause, that the surgery was appropriate, and that the complication was a known risk of the procedure and was managed appropriately.

The verdict

A $200,000 verdict was returned.

Alleged failure to perform endometrial biopsy

In 2009 a 62-year-old woman went to a gynecologist in Alabama with complaints of vaginal bleeding and pelvic pain. A mammogram and U/S of the pelvis were ordered, a Pap smear was done, and an antibiotic prescribed. The Pap smear was negative, but the U/S revealed thickening of the uterus. The gynecologist was concerned about some urologic symptoms and referred the woman to a urologist, but allegedly told her she could have endometrial cancer and needed further testing. She saw only the urologists over the next 9 months, until one of them diagnosed a pelvic mass with vaginal bleeding and referred her to a gynecological oncologist. He suspected cancer and recommended immediate surgery, and warned her it could be extensive, if the cancer was attached to her bowel or other organs. He performed the operation and removed the entire visible tumor, but it was invasive and had spread through the wall of the uterus and extended into the base of the bladder. She was treated aggressively with chemotherapy but died 6 months later of papillary serous carcinoma.

A lawsuit was filed by her estate against the first gynecologist, alleging negligence by him in failing to order a biopsy or other testing for cancer after the U/S revealed a thickened uterine wall.

The physician claimed that he had warned the patient of the possibility of endometrial cancer and the need for further tests but she had not returned for testing.

The verdict

A defense verdict was returned.

 

 

Bladder laceration during cesarean delivery

A 43-year-old woman underwent a cesarean delivery in 2007. The delivery was performed by her obstetrician at a New York hospital. During the procedure the patient’s bladder was lacerated. The injury was repaired, but the patient claimed that she has occasional leakage and pain.

She filed a lawsuit and claimed that the doctor had been negligent in lacerating the bladder and that he should have anticipated that the bladder would be shifted due to a previous cesarean delivery.

The obstetrician claimed that the injury was a known risk of the procedure and that the patient had developed adhesions, which caused displacement of the bladder. He also contended that the patient did not suffer any permanent residual effects from the injury.

The verdict

A $125,000 verdict was returned.


 

MS. COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to
dawncfree@gmail.com.