Legally Speaking: Cases cover D&C, sponges post-delivery, lacerations

February 1, 2010

Risk management in obstetrics and gynecology addresses D&C, negligence in removing ovary, prevention of premature delivery

Patient fails to follow up on pathology report after D&C

The woman sued the physicians and hospital, claiming that she did not receive appropriate follow-up after the first D&C and that she suffered an infection from carrying the tissue for more than 8 weeks, damaged fallopian tubes, and compromised blood flow to the uterine wall that has prevented implantation through in vitro fertilization.

LEGAL PERSPECTIVE One of the most damaging scenarios in all of medical malpractice defense is that of the "dueling defendants." Once jurors see defendants blaming each other for some action or inaction, they assume that something was done negligently or else the defendants would not be pointing fingers at each other. Even if the claimed action or inaction was not below the standard of care and/or was not in any way related to the claimed injury, these cases most often are settled. The jurors often cannot see past the dueling defendants, and even if there was no negligence in the care, the defense cannot afford to take the chance on a huge jury verdict.

Some situations lend themselves to later becoming a dueling defendant scenario, including any care that is not consistent between caregivers in the documentation, phone calls between caregivers in which the content is not recorded, lack of documentation of follow-up on lab reports, deviation from policy and procedures without documenting rationale, and anything that can later lead to different individual recollections of a particular event. In this case, if the hospital had had documentation of reports being sent and/or the physicians had documented reviewing the pathology report and follow-up recommended to the patient, they may not have found themselves in the blaming game. If, however, there had been a lapse in reporting, documentation, or follow-up, it may have been better to settle the case for a reasonable amount and not be subjected to perhaps a large jury verdict after seeing the dueling defendants.

Claim of negligence in removing patient's only ovary

A 33-YEAR-OLD TEXAS WOMAN underwent removal of her right ovary in 2003 because of a painful cyst. The procedure was performed by her gynecologist, and during the procedure, the physician examined the left side and found some adhesions. Lysis of the adhesions revealed that the patient had no left ovary or fallopian tube. The patient was thus rendered sterile and surgically menopausal.

The woman sued and alleged lack of informed consent, negligence in failing to check for a left ovary before removing the right ovary, and negligence in removing the ovary rather than performing a cystectomy.

The gynecologist claimed that the right ovary required removal regardless of the lack of a left one. A defense verdict was returned for the gynecologist.

Sponges allegedly left in vagina after delivery

AN OHIO WOMAN in her 30s went to the hospital for a normal vaginal delivery. She returned several days later to the hospital complaining of a foul odor, discharge, and increased bleeding. The patient claimed that a resident had removed 3 sponges from her vagina during an examination at her postpartum visit and that the sponges had been left from her delivery. The woman sued the obstetrician and hospital and claimed that the sponges had caused an infection.

The defense claimed that there was no evidence in the resident's notes that any sponges had been removed during the postpartum examination, and a defense verdict was returned.