LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Physician's failure to respond to page blamed for injuries

In 1993, a California woman was admitted for labor induction. At 7:52 am, which was shortly after admission, the fetal heart rate (FHR) monitor showed a prolonged deceleration. At 7:58, the woman's physician was paged. A "crash" cesarean section was ordered at 8:05 by another physician who was in the hospital; he delivered the infant at 8:18. The infant suffered anoxic brain injury, resulting in neurological injuries, including spastic quadriplegia, profound mental retardation, and cerebral palsy.

The woman sued her obstetrician and the hospital on behalf of the infant, alleging malpractice as a result of an unreasonable delay in performing the C/S. She claimed that her obstetrician failed to respond quickly to the page placed at 7:58, and thus failed to arrive at the hospital in a timely fashion. The physician contended that he was not paged until 8:05. At that time, he was at home and left for the hospital immediately after receiving the page. He also argued that a "Good Samaritan" delivered the patient before he could arrive at the hospital to assist. Before trial, the hospital was dismissed for strategic reasons. The jury found in favor of the obstetrician.

Legal perspective

The suggestion in Guidelines for Perinatal Care that hospitals offering obstetric care adopt a 30-minute decision-to-incision time for emergency C/S is the standard often applied in the courtroom to malpractice cases involving emergency deliveries. The 30-minute countdown usually begins when the decision to perform an emergency delivery is made or would have been made—given the emergency circumstances—by a reasonable physician in a similar situation. Using this guideline, and giving the caregivers 2 to 3 minutes to assess the FHR strip and determine that it was indeed a prolonged deceleration with no return to baseline, this case certainly meets the standard, as the infant was delivered 26 minutes after the deceleration began. Fortunately there was a physician in the area who performed the C/S in a timely fashion.

The standard does not require physicians to answer pages within a certain number of minutes, just a "reasonable" time. Even if the page here was at 7:58, answering 7 minutes later is not unreasonable. Nor is it likely that a quicker answer would have made a significant difference in the timing of delivery. It is hard to imagine what standard of care this physician was accused of falling below. While it is not the standard for a physician to be in the hospital whenever there is a patient in labor, the 30-minute guideline still applies. If it were not met because a physician was not there in a timely fashion, this case would have been difficult to defend. But this case met the standard and was successfully defended because there was someone in-house who performed the emergency delivery.

Lack of informed consent for vaginal delivery and Erb's palsy

A malpractice suit was filed in Massachusetts after complications during delivery resulted in Erb's palsy in an infant. The claim was that the doctor failed to obtain the mother's informed consent to not have a C/S. The court determined that information withheld from the mother—comparative risks of vaginal delivery and C/S—was material. That is, if the mother had been told there was a reduced risk of Erb's palsy with a C/S, she would have chosen a Cesarean delivery. The judge also decided that any negligence by the mother could not be imputed to the child to offset the child's award. The plaintiffs were awarded $250,000.

Brachial plexus injury

In 1998, an Idaho family practitioner employed by a community hospital performed a vaginal delivery that was complicated by shoulder dystocia. The infant weighed 9 lb, 4 oz and had a brachial plexus injury. She has 35% permanent disability and has undergone two operations; two more operations have been recommended.

A lawsuit was filed, alleging that the brachial plexus injury was caused by the physician's inappropriate response to the shoulder dystocia. The plaintiffs' experts testified that appropriate responses to shoulder dystocia might have included (1) episiotomy; (2) draining the mother's bladder; (3) pressure above the mother's pubic bone in a rocking fashion; (4) McRobert's maneuver; and (5) the Wood's screw maneuver. Experts also testified that the family practitioner should have sought an obstetric consultation after a failed attempt at labor induction 6 days before delivery, and that he was negligent in failing to perform glucose screening between 24 and 28 weeks' gestation. It was noted that during her pregnancy, the mother gained 71 lb.

This case was tried to the court without a jury. The judge ruled that the delivering physician breached the standard of care by failing to implement generally recognized and commonly used techniques in response to shoulder dystocia. The court awarded special damages of $103,479.37, and $400,000 for past and future pain and suffering, but no reliable evidence was found of a loss of future earning capacity.

Failure to diagnose cervical cancer

A 26-year-old woman presented to an obstetrical group's office for the first prenatal visit of her second pregnancy. She was seen by a certified nurse-midwife (CNM) employed by the group. A report for the routine prenatal Pap smear the CNM performed stated "suspect high-grade squamous intraepithelial lesion, suggest biopsy for confirmation." Neither the CNM nor any other health-care provider in the practice ever informed the patient of the results, despite her numerous subsequent prenatal visits.

Approximately 21 months later, the woman presented for a gynecological examination for unusual vaginal symptoms. The same CNM who performed the original prenatal Pap smear informed her that her previous Pap had squamous cells, which could be successfully treated with vitamin therapy. The CNM did not perform a Pap smear at this appointment nor during any subsequent follow-up visits. Over the next 4 months, the patient was treated with vitamins and antibiotics. Although the obstetric group's employees noted some success with the treatment, the woman's symptoms—including abnormal vaginal discharge, painful intercourse, and vaginal bleeding—worsened. She was finally seen by a physician in the group, who examined her and diagnosed cervical cancer. The woman was referred for treatment to a medical center, where she was diagnosed with stage II-B cervical cancer. She received chemotherapy and pelvic radiation, and twice had indwelling vaginal radiation rods inserted.

The patient sued the obstetrical group, alleging that at the time of her original prenatal Pap smear, she only had cervical dysplasia, which would not have progressed to cervical cancer but for the negligence in failing to timely diagnose and treat her condition. At the time of the settlement, the patient was cancer-free but had suffered permanent side effects from treatment, including pelvic radiation damage, sterility, premature menopause, bilateral avascular necrosis of her hip joints, clinical depression, and other symptoms. Shortly after the patient designated expert witnesses and before any expert depositions were taken, the case was settled for $775,000.

Uterus and rectum perforated during fibroid removal

In 1999, a 41-year-old Missouri woman had an outpatient hysteroscopy to remove a fibroid. During the surgery, her uterus and rectum were perforated, but the physician failed to diagnose the problem. The woman's recovery was difficult, and she was admitted to the hospital for observation. Three days later, when she developed peritonitis, an emergency laparotomy and colostomy were performed. The result was a 10-inch vertical scar on the patient's abdomen.

In her lawsuit against the physician and his professional corporation, the woman claimed that the doctor should have recognized the perforations during the hysteroscopy, and if he had, the laparotomy and colostomy would have been unnecessary.

The physician argued that the standard of care did not require him to diagnose the perforation during the procedure, and that the laparotomy and colostomy would have been necessary in any case. The jury returned a defense verdict.

Failure to timely identify fetal position

In 1992, a 21-year-old Georgia woman who was 39 weeks' pregnant with her second child was admitted to the hospital with labor pains. Three weeks earlier, the fetus was in breech position and she had been scheduled for a C/S. When the baby appeared to have turned, the C/S was canceled. On admission, the patient was checked by the only nurse on duty, who was unable to determine the baby's position. The patient told the nurse that 2 weeks earlier, the baby had been breech. About 30 minutes later, the nurse called the doctor on-call, but she did not mention that the fetus had been breech previously nor that she could not tell the fetus's current position. When the doctor arrived 2 hours later, he found that delivery of the breech fetus was imminent and ordered an immediate C/S. The infant was delivered, but although resuscitated, was removed from life support and died 10 days later.

The woman sued the hospital, contending that if the nurse had told the doctor she could not identify the presenting fetal part, the doctor would have arrived sooner, diagnosed the breech, and ordered a timely C/S.

The hospital's main defense was that the death was an act of God, and that the umbilical cord had been trapped when the fetus was breech and delivery imminent, which generally has a bad outcome. The jury returned a $1 million verdict.

Claim of failure to do Zavanelli maneuver during shoulder dystocia

A 5-year-old Washington girl suffers from a nerve injury to her cervical spine as a result of a shoulder dystocia encountered during her delivery, which permanently impaired her left upper arm. During the delivery, after attempting maneuvers to dislodge the infant's shoulders, the attending physician called another physician for assistance. On arrival, the second physician quickly attempted to dislodge the shoulder and successfully delivered the 10 lb, 4 oz infant. Fortunately, the infant suffered no hypoxic damage and has no other neurological deficit other than her arm.

The mother sued the second physician who was called to assist in the delivery. She alleged that this doctor was reckless and that he should have performed a Zavanelli maneuver and then performed an emergency C/S.

The physician contended that performing a Zavanelli maneuver and then a C/S would have taken about 30 minutes, which was much longer than the 60 to 90 seconds it took him to dislodge the shoulder and deliver the infant vaginally. The jury returned a defense verdict.

Failure to diagnose and treat genetic heart defect in fetus

While in her teens, an Indiana woman had been diagnosed with cardiomyopathy and treated with digoxin. She had discontinued her digoxin in two previous pregnancies and delivered healthy babies. In 1993, after discontinuing digoxin, she learned she was pregnant. She delivered her third child without a problem. At age 7 months, the infant had severe respiratory distress and was diagnosed with cardiomyopathy.

A lawsuit was filed against the obstetrician, claiming negligence in failing to timely appreciate the fetus's enlarged heart. Pointing to a fetal ultrasound that allegedly showed signs of the condition, the expert pediatric cardiologist concluded that the result could have been less serious if the condition had been suspected in utero and a pediatric consultation and treatment with digoxin been administered during pregnancy. The child has struggled to thrive and now faces the probability of a heart transplant.

The physician defended the case and denied breaching the standard of care. His expert believed that digoxin intervention was not necessary until after birth, and should not be administered until a child actually displays clear signs of cardiomyopathy. The child's damages, he said, were linked to her genetic condition and not to the physician's care. This case resulted in a defense verdict.

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

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.

Dawn Collins. Legally Speaking.

Contemporary Ob/Gyn

Sep. 1, 2004;49:28-32.