Legally Speaking

LEGALLY SPEAKING Risk management in obstetrics and gynecology Delayed diagnosis of breast cancer A 37-year-old mother of three discovered a small lump in her breast during self-examination. Her gynecologist diagnosed a fibroadenoma and ordered a baseline mammogram and a follow-up breast check 2 months later. The mammogram was negative but the lump remained palpable and increased in size. A year after the initial examination, a biopsy revealed infiltrating ductal carcinoma. Three axillary nodes were positive and the woman underwent a lumpectomy, axillary node dissection, chemotherapy, and radiation. A year later, she underwent a mastectomy for local recurrence. While the woman is cancer-free now, her prognosis is guarded. The patient sued the Massachusetts gynecologist, who argued that breast lumps are common and that it is not reasonable for a physician to attempt to biopsy all of them. Further, the gynecologist contended that an earlier diagnosis would have made no difference in the patient's outcome because the cancer was very aggressive and had probably already reached the lymph nodes at the time she first complained of a lump. After the first week of the trial, however, the case settled for $850,000. Legal perspective As pointed out in this column many times, delay in diagnosis of breast cancer is still one of the most common types of malpractice cases filed against obstetrician/gynecologists. The physician's failure to pursue a definitive diagnosis of a palpable breast mass with a negative mammogram is far and away the most common claim. That this failure is still so common is surprising, given the plain language in American College of Obstetricians and Gynecologists' Committee Opinion #186: "Mammography alone is not sufficient to rule out malignant pathology in a patient with a [persistent] palpable breast mass." Because guidelines and opinions from national organizations like ACOG are often the basis for determination of the standard of care used in a malpractice case, it is hard to defend a deviation from them. Failure to timely diagnose ectopic pregnancy A 37-year-old New York woman went to her obstetrician in 1996 after a positive home pregnancy test and experiencing light vaginal bleeding. Her physician performed a urine pregnancy test in the office to confirm the pregnancy, diagnosed a threatened abortion, and told the woman to go home and stay off her feet. The patient had a history of cystectomy of her left ovary and a prior C/S delivery. An ultrasound was scheduled for 9 days later. In the 3 days following her office visit, the woman made seven phone calls to the obstetrician to advise him of her complaints of lower abdominal pain, which was increasing. She spoke with the physician on four occasions and he continued to advise her to stay off her feet. Early in the morning on the third day, the woman called the obstetrician with severe abdominal pain and increased bleeding; she later claimed she was advised to take ibuprofen and go back to bed. Later that morning, she called the office and was advised to come in. When she arrived, a diagnosis of probable ruptured ectopic pregnancy was made and she was sent immediately to the hospital. Four hours later the woman underwent a laparotomy with removal of the ruptured fallopian tube. The woman sued the obstetrician and the hospital, although the hospital was voluntarily dismissed after the physician testified. The woman claimed that based on her history of two previous pelvic surgeries and her symptoms, a possible ectopic pregnancy should have been diagnosed and an attempt made to rule it out on her first visit. She contended that if the physician had performed a beta hCG test and U/S that day, an ectopic would have been suspected and her fallopian tube might have been saved. The physician argued that a diagnosis of "threatened abortion" was appropriate given the woman's symptoms and that a single beta-hCG test is not diagnostic of an ectopic pregnancy. He claimed the patient would have required serial tests and there would not have been enough time for that given the short period between her first visit and the rupture. The physician also argued that a sonogram on the day the woman presented might not have demonstrated an ectopic pregnancy. After the jury had been deliberating for 3 hours, a $175,000 settlement was reached. C/S-hysterectomy causes emotional loss A New York woman, pregnant with her second child, was diagnosed with a large fibroid that made vaginal delivery impossible. She was 32 years old when she presented to a hospital for C/S in 1997. The obstetrician performed a low transverse incision, which he converted to a "T" incision when he encountered bleeding, and delivered the infant safely. The woman continued to bleed, however, and a hysterectomy and many blood transfusions were required to save her life. She was hospitalized for 7 days. She claimed that she suffered an emotional loss from the hysterectomy, as well as a loss of interest in sexual relations with her husband. The woman sued the obstetrician, claiming that had he performed a classical C/S, the baby would have been delivered safely and neither the fibroid nor its blood supply would have been cutwhich was the cause of the excessive bleedingsince an incision low in the uterus would not have been necessary. The obstetrician contended that he had exercised his judgment by choosing the low transverse incision, because if he had cut vertically higher up, he might have encountered the placenta and injured the baby. He also contended that the woman needed a hysterectomy because her uterus became atonic due to the fibroid, and that was the reason for the bleeding. The first trial resulted in a mistrial after the jury deliberated for 3 days before declaring a 4/2 deadlock in the plaintiff's favor. The case was retried before a different jury and the woman was awarded $750,000 ($375,000 for past pain and suffering and $375,000 for future pain and suffering). Perforated uterus and cervix A 19-year-old woman who was more than 20 weeks' pregnant presented to a New York clinic for an abortion in 1997. Laminaria were inserted in the cervix that day and the next day. The following day she returned to the clinic for removal of the laminaria and completion of the abortion. During the procedure the cervix was lacerated and her uterus was perforated. The operating physicians, knowing that they had perforated the uterus, performed an U/S, which showed fetal parts floating in the woman's abdomen. While still unconscious, she was transferred by ambulance to a hospital, where she underwent a hysterotomy and exploratory laparotomy. The surgeons repaired her cervix and the uterine perforation and then completed the abortion procedure. During her recovery, the woman was hospitalized for another 2 weeks. Physicians at the hospital told her she might have difficulty becoming pregnant in the future, and it was highly likely that she would not be able to carry a baby to term. Two years later, however, she delivered vaginally without any complication. The woman sued the physicians and the clinic, claiming that the physicians at the clinic should have been aware that she was not dilated enough to have the abortion, and that in performing the procedure, they should not have damaged her organs. The physicians contended that the complications were a known risk of undergoing an abortion. This case settled just prior to jury selection for $285,000. Department editor Dawn Collins, JD, is an attorney specializing in medical malpractice in Long Beach, Calif. She welcomes feedback on this column via e-mail to DawnCF@aol.com. Many times, the factual information available about the cases presented here is incomplete. Thus it may not always be possible to discuss all of the elements of negligence or nuances involved in a given situation. The outcomes described also may not reflect the current standard of care or the best practice in obstetrics and gynecology. What these cases do represent are the types of clinical situations in the specialty that typically result in litigation and the variation in jury verdicts and awards across the nation. Some of the cases described have merit but many do not. Dawn Collins, JD Dawn Collins. Legally Speaking. Contemporary Ob/Gyn May 1, 2003;48:31, 35.