LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Failure to diagnose abruption is costly

During the weekend of July 4th, 1997, a New York woman was admitted to a hospital 6 days before her due date complaining of abdominal pains. The physicians and nurses assumed that the patient's abdominal pains were due to labor. A fetal heart monitor tracing begun at the time of admission showed some decelerations. When the fetal heart rate (FHR) was still nonreassuring an hour and a half later, the obstetrical resident ordered preparations for an emergency cesarean section. Approximately 15 minutes later, the attending obstetrician overruled the resident's plans for emergency C/S. About 1 hour later, the tracing became nonreassuring again and the attending ordered an emergency C/S, during which a 20% abruption was discovered. The now 5 ¹/₂-year-old child cannot walk, stand, sit, use her arms, or talk.

The mother sued the physician and hospital, claiming that the abruption was the cause of her pain and that because she did not have regular contractions and cervical dilatation, the diagnosis of labor was erroneous. She claimed the physician was negligent in failing to consider the possibility of placental abruption. The woman alleged that the delay in the C/S was the physician's fault and caused the child's injuries.

The physician argued that his diagnosis of labor was correct and the abruption must have occurred immediately before delivery. At trial, no one disputed that the hospital staff should have been able to complete delivery of the infant during an emergency C/S within 10 to 15 minutes at the most. In this case, however, the infant was not delivered until 46 minutes after the decision. The defendant agreed that the delay after his decision was inexcusable. He stated he did not remember this particular patient or the precise circumstances, and so could not say why the delay occurred. But he contended that the hospital must have been responsible for the delay. The former director of obstetrics at the hospital testified that sometimes delays like this are caused by the unavailability of anesthesia personnel, and they tended to occur during July, on weekends, on holidays, and at lunchtime. But as this was insufficient to prove that a staffing problem actually existed in this particular case, the court prevented the physician from blaming the hospital.

There was undisputed testimony that the child's life expectancy is near normal, and the jury determined it to be 70 years. The hospital settled for $6 million shortly before trial. The jury found unanimously that the physician was negligent in failing to make a differential diagnosis of placental abruption and that this failure was a proximate cause of the child's injuries. The defendant was awarded $90.9 million.

Legal perspective

While the case report, as written, does not make clear what the FHR tracing showed or what the newborn's Apgar scores or condition was, it is apparent that the issue became the physician's failure to think of abruption as a cause for the patient's abdominal pain. The delay in the performance of the emergency C/S may or may not have been the physician's fault, but because the hospital had already paid on the case, it was the preoperative abruption diagnosis that could tie the physician to this issue. It seems it also made him liable, even though there was no way to show that doing something differently would have made a difference in the outcome.

It is also not clear why the life expectancy was undisputed, but the jury clearly believed the child would live for 70 years. The plaintiff's experts testified that the gross future costs of caring for the child at home would total $78,279,000, and that institutional care would cost $191,259,913. Accordingly, the plaintiff's counsel told the jury that they were not asking for a sum that assumed the mother would ever place her child in an institution. The jury awarded $75 million. In addition, the plaintiff's experts estimated future medical treatment and related expenses at $13,179,875, the amount the jury awarded. The plaintiff's economist estimated loss of future earnings as $2,982,880, and the jury awarded $2 million. The jury also awarded $60,000 for past and $700,000 for future pain and suffering, for a total of $90.9 million.

Failure to repair episiotomy

An Ohio obstetrician/gynecologist delivered a patient's second child vaginally and cut and repaired her episiotomy. The woman then developed a rectovaginal fistula, which she claimed was a result of the physician's failure to recognize and repair a tear into the rectum at the time of the episiotomy repair. The gynecologist attempted three surgical repairs, all of which failed. The woman was seen by a general surgeon before being referred to an anorectal specialist, who performed three more operations—an ileostomy, a fistula repair, and an ileostomy reversal.

The woman sued the gynecologist; the general surgeon who had assisted the obstetrician/gynecologist with surgery also was named as a defendant. A $562,000 verdict was returned against the obstetrician/gynecologist alone.

Bladder perforated during laparoscopy

A 34-year-old Illinois woman underwent diagnostic laparoscopy for suspected endometriosis in 1995. During the procedure the woman's bladder was perforated, but the problem went unrecognized. The patient was discharged despite failing to exhibit the ability to void. Her husband phoned the operating physician's office that afternoon and told a nurse that the patient was having severe abdominal pain that did not decrease with ibuprofen and that fluid from the incision site was soaking through several washcloths. The nurse put the man on hold and informed the doctor of the woman's complaints. The physician did not speak with the patient and told the nurse to prescribe acetaminophen with codeine. Around midnight the woman went to a hospital, where she was diagnosed with a perforated bladder, peritonitis, and disseminated intravascular coagulation. She required an open laparotomy to repair the bladder perforation.

The woman sued the physician, who contended that perforation of the bladder was a known complication of the procedure and that the woman's bladder perforation was retroperitoneal, so intraoperative recognition of the perforation was not the standard of care. The physician also maintained that the phone call was handled properly, since postoperative pain is expected. A $409,090 verdict was returned by the jury. The verdict is subject to a $150,000 setoff from a settlement with the hospital.

Colon damaged during vaginal hysterectomy

A Colorado woman sued her gynecologist and the hospital, claiming that the he perforated her colon during a vaginal hysterectomy, necessitating a diverting colostomy and colostomy takedown. She further alleged that the physician failed to timely diagnose her condition after the hysterectomy.

The gynecologist denied that he perforated the bowel and argued that the woman developed a postoperative infection. He specifically maintained that the bowel specimen removed in the second surgery did not reveal perforation. A confidential settlement was reached with the hospital, but a defense verdict was returned for the physician. He was also awarded costs of $37,000.

Shoulder dystocia

In delivering an infant in 1986, an Ohio obstetrician encountered a shoulder dystocia. Following the delivery, the child was diagnosed with a brachial plexus injury and has a partial paralysis of her right arm. In the lawsuit that followed, lawyers for the child claimed her injuries resulted from the physician applying excessive downward traction on her head during delivery.

The obstetrician contended that her care met or exceeded the applicable standards and that the child's injury was not caused by the use of excessive traction. She argued that the injury had been caused in utero and during delivery as a result of a combination of uterine contractions, the expulsive forces of labor, and the use of a usual amount of traction. The jury returned a verdict for the child in the amount of $900,000.

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 2003;3:31-32.