Legally Speaking: Claim of failure to test for cystic fibrosis


This case emphasizes the importance of keeping detailed records of each patient encounter.

Claim of failure to test for cystic fibrosis

A 44-year-old Montana woman gave birth to a child who was subsequently diagnosed with cystic fibrosis (CF). The woman sued those involved with her prenatal care, including the certified nurse practitioner (CNP) and the physician who performed chorionic villus sampling (CVS), claiming that had she known the child had CF, she would have terminated the pregnancy.

The woman alleged that she requested genetic testing, including testing for CF, when she had her prenatal visit with the CNP. The nurse argued that the patient requested testing for concerns related to advanced maternal age and not CF, but that the patient was provided with brochures that included information about testing for CF. The brochure was clear that the initial screening for CF was a blood test of the parents to determine if they were carriers of the CF gene, and that if the results from both were positive, the material gathered from amniocentesis or CVS would be tested. The nurse alleged that the patient did not request the necessary blood tests for CF carrier screening or any CF testing. The patient admitted that she did not read the brochure on CF provided to her.

The patient contended that the physician did not tell her what the material obtained from the CVS procedure would be tested for and that she did not have genetic counseling. The physician argued that he informed the patient that the test was for conditions related to advanced maternal age, such as chromosomal abnormalities including Down syndrome. He further contended that he specifically informed the patient of the availability of blood testing for CF carrier screening of both parents, which is necessary prior to testing for CF in the fetus because of the more than 1000 mutations of CF. He claimed that the patient declined the CF blood tests at that time.

NEXT: The verdict and analysis >>


The verdict

A defense verdict was returned.


During this case, it was revealed that while the patient admitted that she was referred to the medical genetics department for genetic counseling, she claimed she was confused as to whether she was to contact them or they were to contact her and as a result, she did not call for an appointment until shortly before the scheduled procedure. She then claimed she was told there were no counselors available on such short notice right before a holiday. During trial, witnesses for the genetics department testified that counselors were available when the patient called. They provided documentation in the medical record that the patient declined genetic counseling due to the cost of the service. This illustrates the importance of documenting in the record a patient̢۪s decision to not undergo a recommended service and her reasons for declining.

Next: Bowel preforation during fibroid surgery >>


Bowel perforation during fibroid surgery

A 44-year-old Illinois woman presented to a gynecologist in 2010 with a complaint of uterine fibroids. During a hysteroscopic procedure, the uterine wall and colon were inadvertently perforated. The gynecologist converted to a laproscopy and upon finding the perforation in the uterine wall, performed a laparotomy to repair the tear. When the patient became severely ill with peritonitis 3 days later, a surgeon performed a bowel resection with colostomy. A second operation to reverse the colostomy was performed a year later.

The woman sued the gynecologist, alleging negligence in perforating the uterus and bowel and failing to recognize and repair the bowel perforation in a timely manner, which caused her to have abdominal scarring.

The physician argued that he did look at the adjacent organs while repairing the uterus and either there was no hole at that time or it was too small for him to detect any perforation.

Next: The verdict >>


The verdict

The patient was awarded $200,000 in damages.



Preterm delivery results in CP

A Michigan woman with a history of cesarean delivery at 24 weeks’ gestation was offered synthetic progesterone injections at the beginning of her prenatal care in a subsequent pregnancy. She claimed she could not afford the injections. Three weeks after her initial visit, she returned to the high-risk clinic and was again offered the progesterone injections, which she rejected. During her return visit, 4 weeks later, her cervical length on  ultrasound was 3 cm. She again declined the progesterone. At a follow-up visit 2 weeks later, the woman’s cervical measurement was 2.5 cm.  and she once again did not consent to tprogesterone injections. Another ultrasound done 2 weeks later showed a cervical length of 1 cm. The woman was admitted to the hospital but before any orders could be written to for tests to rule out early labor and/or delivery, she left the hospital to care for her other children. She was to return after arranging care for them, but did not come back. Five days later the woman’s cervical length was 1 cm and she received a progesterone injection. Over the next 4 weeks, had 4 more injections but she did not return for the fifth or cervical measurement.

The day after the woman̢۪s missed appointment, she presented to the hospital with cramping. She was admitted and given steroids and medication to stop the contractions. An ultrasound showed that the fetus was breech. The patient consented to a cesarean, but before the procedure was started, the baby was born vaginally. The child suffers from mild brain damage, cerebral palsy, developmental delays, and learning disabilities.

The woman sued those involved with her care during the pregnancy and alleged that the healthcare providers should have offered her vaginal progesterone, which was less expensive than the injections, that steroids should have been given to her earlier to improve neonatal development, and that vaginal delivery should have been prevented.

The defense argued that the infant delivered precipitously on the way to the operating room.




The verdict

The case was settled for $3.5 million.



Depression from uterine wall perforation

A 48-year-old Arizona woman was seen by her primary care physician, who performed a pap test that came back with abnormal results. She was referred to a gynecologist, who recommended a colposcopy, which revealed abnormal cells in the cervix and severe dysplasia. The gynecologist recommended surgery, which was scheduled for a month later. During the procedure the woman̢۪s cervix was removed and her uterus was punctured and repaired. She claimed she suffers depression as a result.

The woman sued the gynecologist and alleged that despite the doctor̢۪s assertion that the operation was needed immediately, no one from her office contacted the patient, and the patient herself contacted the office to schedule the surgery and it was not performed for over a month after the recommendation.

The gynecologist argued that there was no departure from the standard of care, uterine perforation is a known complication and was managed appropriately, and that 9 weeks after the operation the patient returned to work and had no complaints for more than a year afterward.



The verdict

A defense verdict was returned.



Circumcision requires revision procedure

A Michigan woman alleged that her son suffered pain as a result of a circumcision that was performed the day after his birth. She sued the obstetrician and claimed that the circumcision was improperly performed, necessitating a revision operation 2 1/2 years later that resulted in the development of meatal stenosis at age 7 years. She alleged that once her son was able to talk, he indicated that his penis hurt. She first complained to the physician about the pain when the child was 18 months old. She reported that the baby suffered constant penile pain from the time of circumcision at age 1 day until the revision surgery 2 1/2 years later.

The obstetrician denied any deviations from the standard of care and contended that redundant foreskin is often left following a circumcision.



The verdict

The jury found in favor of the defense.



Brachial plexus injury

In 2005, an Illinois woman with elevated blood pressure was admitted to a hospital for induction of labor at 38 weeks̢۪ gestation. She was started on oxytocin and around midnight, the fetal heart rate monitor showed some possible fetal complications. The obstetrician was not in the hospital but was called and ordered preparations for a cesarean delivery. Once he arrived at the hospital and evaluated the patient, he found no fetal concern and decided to proceed with the plan for vaginal delivery. By 3:30 am the patient was fully dilated and pushing when the obstetrician decided to utilize a vacuum extractor to assist with the delivery due to the patient̢۪s elevated blood pressure, headache, shortness of breath, and fatigue. Upon delivery of the head, a shoulder dystocia was encountered and the physician immediately called for assistance. He attempted various maneuvers to deliver the shoulder and successfully delivered the infant. The child was subsequently diagnosed with near-total brachial plexus injury, consisting of tears and avulsions of all 5 brachial plexus nerves with trauma to some of the cervical nerve roots, requiring multiple operations for nerve grafts and other orthopedic procedures.

In the lawsuit that followed the delivery, the patient claimed that use of the vacuum was not indicated. She alleged that she actually had an arrest of descent which required that the obstetrician perform a cesarean, and that he should have suspected fetal macrosomia. She further claimed that, based on the severity of the injury, the obstetrician must have used excessive force to complete the delivery.

The obstetrician denied that the standard of care required a cesarean at the time he applied the vacuum, denied that the vacuum caused the shoulder dystocia, and denied he applied excessive force or traction to accomplish delivery. He contended that the extent of the outcome was partially due to hypotonia, which contributed to the unusual distribution of damage to the infant.



The verdict

The jury rendered a defense verdict.


Pregnancy after tubal ligation

A Maryland couple expressed their decision to not have another child to a gynecologist, who recommended a laparoscopic tubal ligation. Several months later the woman became pregnant and gave birth to a son. The parents are now raising 4 children, the youngest of whom has language delays and learning disabilities.

The parents sued the physician and claimed that this additional child put an increased economic hardship on the family.

The gynecologist contended that a common known complication of the procedure can be the regrowth and reattachment of the Fallopian tubes, resulting in an unintended pregnancy.



The verdict

The jury found in favor of the parents and awarded $240,000 for the cost of raising a fourth child, and $157,000 to cope with the child̢۪s special needs, for a total of $397,000.



Necrotizing fasciitis after bowel perforation

A 46-year-old woman went to a Florida hospital for removal of an ovarian cyst. The procedure was performed by her gynecologist and afterward, the patient experienced pain and low blood pressure, which was treated with medication. The next day the incision opened and serosanguinous fluid began to drain. The patient was transferred to the intensive care unit with acute respiratory failure with possible sepsis and organ failure. The next day a trauma surgeon ordered emergency abdominal surgery and a bowel transection was discovered. The lower half of the patient̢۪s stomach and abdominal muscles had to be removed due to necrotizing fasciitis. She suffered severe organ, tissue, and muscle damage, and severe hypotension with severely low blood flow to her extremities, resulting in amputation of all 4 extremities. She underwent 11 additional operations, including placement of on ostomy bag, and was in an induced coma for 1 month.

The woman sued the physician and claimed he was negligent in deciding to perform the original surgery laparoscopically despite the risks, transecting her bowel during the procedure, and failing to order emergency surgery in a more timely manner based on her symptoms.

The physician denied any negligence in performing the operation and claimed that the bowel perforation was a known complication of the procedure.



The verdict

A defense verdict was returned.

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