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The verdicts and settlements involved in this case and 8 others.
A 37-year-old California woman presented to her obstetrician multiple times during the third trimester with complaints of nausea, vomiting, headaches, and heartburn. At about 36 weeks’ gestation, she went to the emergency room with worsening symptoms and complaints of upper abdominal pain. The on-call obstetrician was contacted by phone and informed of the woman’s symptoms and a normal fetal heart rate recording was noted. The physician did not come in to examine the patient and she was discharged with no order for any follow-up testing or monitoring. One week later a fetal demise was found and the patient was diagnosed with acute fatty liver disease of pregnancy.
The woman sued the obstetricians and medical center alleging negligence in failing to heed her complaints, which were not normal in that late in gestation, and failure to obtain any testing or follow-up care that would have diagnosed the condition in a timely manner when labor could have been induced and the fetus born alive. She claimed she suffered from emotional distress as a result of the loss of her baby. After this, the woman went on to give birth to another healthy child.
The medical center and the on-call obstetrician settled the case prior to trial. The primary obstetrician argued that the patient’s symptoms were common in pregnancy and that it was not below the standard to not diagnose a very rare liver disease. His expert opined that the fetus probably died from a nuchal cord accident or an idiopathic cause, but there was no way to tell if the fetus died as a direct result of the fatty liver disease, although he admitted the death did occur at the same time that the woman’s liver function was abnormal.
The jury found in favor of the plaintiff for $160,090.82.
In California and in most other jurisdictions, the loss of a fetus does not give rise to a wrongful death claim. In the absence of a live birth, the fetus lacks standing to make a claim for damages for injury or death. The woman who was carrying the fetus, however, can usually seek personal injury damages that she suffered in the loss of the fetus.
In this case, the jury was instructed that the case was not a wrongful death but a personal injury action for the woman. She claimed emotional distress as her damages in the loss of her baby, and in accordance with California’s cap on non-economic pain and suffering damages, sought to recover $250,000. She also sought recovery of $80,090.82 in actual economic damage for past medical expenses.
Death during abortion
A 41-year-old Pennsylvania woman underwent an abortion performed by a physician. During the procedure the patient was given a lethal combination of painkillers by the “nurses” who had no qualifications or license to administer medications. The patient’s vital signs were not monitored during the procedure and the medical records noted her condition as good, but at some point she lost color and had no pulse.
Emergency services was called shortly after the procedure and the woman was found unresponsive; she died the following day.
A lawsuit was filed on the woman’s behalf and alleged that the mixture of painkillers and sedatives caused her to stop breathing with collapse of her heart and brain function.
The jury awarded $550,000 under the Wrongful Death Act, $100,000 under the Survival Act and $3.25 million in punitive damages.
A New Jersey couple whose 6-year-old daughter was born with dysmorphic features and cognitive disabilities that require constant medical care sued the physicians and ultrasound technician involved with the woman’s care during pregnancy and alleged they failed to properly interpret ultrasound results.
Specifically, they claimed that the results of a nuchal skin measurement on ultrasound were not accurate, and so, failed to detect potential birth defects.
A settlement discussion resulted in the ultrasound technician’s carrier agreeing to pay $4.5 million to the patient. The physician’s carrier agreed do contribute $3 million for a total award of $7.5 million.
Stillbirth after cesarean
A Virginia woman under the care of her obstetrician was attempting a vaginal birth after cesarean (VBAC). As her labor progressed, signs of fetal distress were exhibited on the fetal heart rate (FHR) tracings. About an hour after monitoring began, the obstetrician reviewed the FHR tracings and advised the patient to stop pushing. About an hour later, the physician was told that the FHR was irregular. The obstetrician gave orders for the patient to start pushing again. Approximately an hour later, the FHR went up, the patient was ordered to stop pushing, and a cesarean section was performed. The infant was stillborn and attempts to resuscitate the baby were unsuccessful.
The patient sued the obstetrician and asserted that he should have closely watched the FHR monitoring after he ordered the patient to stop pushing. She contended that had he watched the monitoring more closely, he would have ordered the cesarean section earlier, and the baby would have survived.
A $1.5 million verdict was returned.
Failure to attempt to stop preterm labor
A Georgia woman in her 30s had a history of a partially removed cervix, which increased her risk for complications during a pregnancy in 2007. Her obstetrician recommended cervical ultrasounds every 2 weeks. At 22 weeks’ gestation, some cervical changes were noted and the patient was referred to a maternal-fetal medicine (MFM) specialist, who instructed her to return for another ultrasound in 1 week, refrain from lifting, and stay on bed rest.
Five days later the woman developed some symptoms that prompted her to go to the hospital. She was examined by a nurse who consulted with the woman’s physician by telephone. She was discharged home with instructions to come to the obstetrician’s office when it opened in the morning.
She was seen by a different physician and was sent back to the MRM specialist. Now at 23 weeks 4 days gestation, the woman was admitted to labor and delivery with worsening cramping. A cesarean delivery was performed but the infant died 2 days later.
The woman and her husband sued those involved with her care and claimed they failed to offer any options that would have prolonged the pregnancy. They alleged that a cervical cerclage was indicated and/or administering progesterone would have extended the pregnancy and the infant would have survived.
The defendants argued that it was not below the standard of care to not offer a cerclage or progesterone at that gestation and that the preterm delivery was due to an infection that caused premature labor.
The parents contended there were no clinical signs of infection resulting in early labor. They sought damages for wrongful death, loss of society and companionship, pain and suffering for the infant and the parents, and medical and funeral expenses.
The jury found for the parents and awarded $4.34 million.
A 65-year-old Minnesota woman with a history of abnormal bleeding consulted a gynecologist. An endometrial biopsy was negative for cancer. The physician prescribed hormone therapy. The patient continued to have some bleeding then it stopped.
Ten years later she began to have some bleeding. A Pap smear showed atypical endometrial cells, and an ultrasound showed a markedly abnormal endometrium. The physician recommended a hysteroscopy and dilatation and curettage (D&C). When he attempted the procedure he was unable to enter the endometrial cavity.
The discharge instructions and doctor’s orders indicated that the physician would call the patient to follow up.
About a month later the gynecologist wrote a note discussing the abnormal Pap smear and indicated that the patient had two options: another D&C under ultrasound or a hysterectomy. He wrote that he would contact the patient’s regular physician for input. Whether such communication took place remains an open question.
The woman returned to the gynecologist 2 years later. Her bleeding had never stopped and had increased in intensity. The physician’s records reflected his surprise that no one had followed up with the patient. Endometrial cancer was diagnosed.
The woman filed a lawsuit and claimed that the lack of follow up and treatment resulted in progression of the cancer from stage 1 to stage 3C, with a 5-year survivability of 47%.
The physician claimed that the patient was comparatively negligent for failing to seek medical care over the 2-year period during which she had continued bleeding.
The case settled for $430,000 at mediation.
Fetal demise in gestational diabetic
A 42-year-old Washington woman with a history of preeclampsia during her first pregnancy was diagnosed with gestational diabetes. The obstetrician advised her on how to control her blood sugars, which she did successfully. At 32 weeks’ gestation, the patient reported to the obstetrician at her regular prenatal visit that she had decreased fetal movement. The physician ordered a biophysical profile (BPP) and the patient returned to the office in the afternoon for the test. The BPP was abnormal and the obstetrician advised the patient to go immediately to the hospital for monitoring and possible cesarean section. The patient did not report to the hospital until 3 hours later, at which time it was determined that the fetus had expired. The cause of death was not determined.
The patient sued the physicians involved in her care.
A defense verdict was returned.