Legal: Fetal scalp laceration during emergency C/S

A New York woman was 28 weeks' pregnant when she presented to the hospital with uterine contractions in 2002. A fetal fibronectin test was positive and she was admitted and given steroids for fetal lung maturation. She was then determined not to be in labor and was discharged on strict bed rest and follow-up with a perinatologist. The next day she was examined and had an ultrasound that showed a transverse lie and contractions. The woman was admitted and given tocolytics and was discharged the next day with no uterine contractions. A week later she returned to the perinatologist and was 2-cm dilated and having contractions. She was still transverse lie and was readmitted for tocolytics. Her membranes then ruptured spontaneously, after which an emergency cesarean section was performed. The newborn was noted to have a 6-cm laceration of the scalp and now has an obvious scar as a result.

The woman sued all those involved with the delivery but the matter ultimately proceeded to trial against the obstetrician who performed the emergency C/S. She claimed that he failed to extend the uterine incision with blunt dissection, but instead used sharp incision, causing the laceration. The physician claimed that blunt dissection could not be used and that the transverse lie with ruptured membranes increased the chances of inadvertent fetal laceration, which was a risk of the emergency C/S. He also maintained that plastic surgery could be done that would reduce the scars appearance. A defense verdict was returned.

Legal Perspective

While historically many malpractice insurers discourage their providers from admitting errors or apologizing for a bad result, and some actually note that doing so will jeopardize coverage, there is a push by many safety experts to disclose medical errors. So far, there are no clear data as to whether this would save physicians, hospitals, and insurers money, but if done in the proper setting, with appropriate language, then answering questions and providing information to the patient may serve to decrease both a patient's anger and feelings of abandonment after experiencing a bad outcome.

Department editor DAWN COLLINS, JD, is an attorney specializing in medical malpractice in Long Beach, CA. She welcomes feedback on this column via e-mail to dawncfree@gmail.com
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