Legally Speaking: A look at failure to biopsy, fetal heart rate misread


Examining the risk management involved in various cases in obstetrics and gynecology

Alleged failure to biopsy delays diagnosis of cancer

A 49-YEAR-OLD ILLINOIS WOMAN underwent a laparoscopy in 2001 for a diagnosis of ovarian cyst. The procedure was performed by her gynecologist, who found her ovaries to be normal but discovered endometriosis and adhesions from 3 cesarean deliveries. The patient saw other gynecologists in the group for follow-up care. She had no complaints until about 5 months after the laparoscopic examination, when she presented to the office with bloating and gastrointestinal pain. She had an ultrasound, followed up with her primary care physician, and was referred to a gastroenterologist. Two months later, the woman was admitted to an emergency room with abdominal pain. Surgery performed the next day revealed stage IIIC cancer in her pelvis and abdomen. The cancer originally was thought to be metastatic ovarian cancer but was later determined to be primary papillary serous carcinoma of the peritoneum. In spite of multiple surgeries and chemotherapy, the patient died from the disease about 20 months later.

The lawsuit filed by her estate claimed that her original gynecologist should have performed a tissue biopsy during the laparoscopy, which would have resulted in a diagnosis at a time when the patient's chances of survival would have been better.

LEGAL PERSPECTIVE In a delay to the diagnosis of cancer malpractice case, the major issue is usually the effect any alleged delay may or may not have had on the treatment and the eventual outcome for the patient. Each side's medical expert witness presents opinions as to what effect delay had or did not have on the quality and longevity of life for the patient.

In this case, the jury began deliberations, but could not come to agreement and reported that they were deadlocked at 11 to 1. Both parties agreed to accept a less-than-unanimous verdict; a defense verdict subsequently was returned. Before the verdict, the parties had entered into a high/low agreement of $750,000/$100,000, which would have allowed the patient to recover the $750,000 if a plaintiff verdict had been returned or recover the $100,000 in the event of a defense verdict.

Fetal heart rate misinterpretation blamed for delay in delivery

A SOUTH CAROLINA WOMAN went to the hospital at 39 weeks' gestation with complaints of nausea, vomiting, and fever. She was placed on a fetal monitor and was cared for by a new nurse who was in the eleventh week of a 12-week preceptorship. The woman's doctor ordered a non-stress test (NST) and complete blood count (CBC), and although the monitor showed uterine contractions, her cervix was not ripe, and the baby was still high in her pelvis.

After an hour, the doctor was called again and recommended that the patient walk for 2 hours to determine whether labor would begin. The patient was unable to complete the 2-hour walk and was placed back on the monitor. After 5 hours at the hospital, the woman was prescribed a sleeping pill and sent home.

Two days later, she returned to the hospital in labor. The fetal heart rate (FHR) monitoring showed late decelerations with absent variability, and an emergency cesarean delivery was performed. The infant had Apgar scores of 1 and 5 and at 6 hours of life began having seizures The child ultimately was diagnosed with spastic quadriplegic cerebral palsy. She suffered repeated seizures, required the use of a feeding tube, and subsequently died at the age of 4 years.

The parents sued the hospital and the obstetrician, alleging that the nurse reported the results of the NST as "mildly reactive." They maintained that the test had been nonreactive and that the contraction stress test had been positive, showing late decelerations after almost every contraction, but that variability had been good at that point. The woman's CBC showed anemia and an elevated white count with a left shift, but nothing in the record indicated that these findings had been communicated to the physician.

The parents alleged that delivery should have occurred at the patient's first presentation at the hospital and that the physician should have followed up to obtain the results of the tests he ordered and should have examined the patient, particularly in light of the nurse's inexperience. The defense argued that all the care provided was appropriate. The jury returned a $4.405 million verdict against the hospital only.

Ureter injury during laparoscopic hysterectomy

IN 2002, A 50-YEAR-OLD PENNSYLVANIA WOMAN was suffering from intractable uterine bleeding to the point of becoming anemic. She was seen by a gynecologist, and a hysteroscopy was performed, which was unsuccessful. The woman ultimately agreed to a laparoscopic supracervical hysterectomy, which was performed in 2005. Two days later, she was diagnosed with a pulmonary embolism and required treatment with warfarin for 6 months. A day after the diagnosis of pulmonary embolism, she had difficulty urinating, and it was determined that her ureter was transected during the procedure. Because she was taking an anticoagulant, immediate surgery to repair her ureter was ruled out. She suffered urinary and kidney infections for 6 months until the ureter was repaired.

The woman sued the gynecologist, alleging lack of informed consent. She also maintained that the procedure should have been converted to an open procedure when visualization became difficult and the uterus had been found to be larger than estimated. In addition, she claimed that the surgery had been performed with a morcellator, which the doctor had never used before and which had to have the blade replaced after it broke during the operation.

The gynecologist claimed that a hysterectomy had been recommended in 2004 and again in 2005 and that the patient had been fully informed that a morcellator would be used in the procedure. She also claimed that a ureter injury is a known complication of the procedure and that the injury occurred after the morcellator had been turned off.

The jury returned a verdict for the defense.

Uterine rupture in patient with VBAC managed by nurse midwife

IN 1997, A VIRGINIA WOMAN WENT INTO LABOR and was admitted into the hospital with a history of 1 prior cesarean delivery. Her labor was managed by a nurse midwife employed by an ob/gyn medical group.

Oxytocin was used during labor, and the patient's contraction pattern demonstrated an increased resting tone. The FHR dropped, and an emergency cesarean delivery was performed 30 minutes later. A uterine rupture was found. The infant suffered a brain injury and was subsequently diagnosed with cerebral palsy.

The woman sued the medical group and claimed that the nurse midwife had not communicated with the obstetrician about the increased uterine tone. Had she done so, the patient contended, the physician would have been immediately available as required for vaginal birth after cesarean (VABC) deliveries. The cesarean delivery could have been performed sooner, and the infant's brain insult could have been avoided. A $939,000 verdict for the patient was returned.

Delay in diagnosis of bowel injury

A 60-YEAR-OLD CONNECTICUT WOMAN was diagnosed in 2006 with ovarian cysts, which were removed surgically by her gynecologist after a month. Later that day, she became hypotensive. The nurses suspected internal bleeding and called her doctor. At 2:00 AM, the gynecologist returned to the hospital and scheduled the patient for exploratory surgery at a 6:00 AM.

During the exploratory surgery, 1 liter of blood was found in the abdomen, but no source of bleeding was seen. The operating physicians concluded that the source of the bleeding had healed itself, and they closed the patient's abdomen. The patient continued to have low blood pressure and elevated white blood cell counts, and her kidneys, liver, and lungs were failing. The family called the patient's family physician, who recommended surgical consult.

Five days after the procedure, the surgeon suspected continued internal bleeding and took the patient to surgery, but the family was told that her chances of recovery were slim. A bowel laceration with sepsis was found, with major organ systems failure. The bowel was repaired, but the patient died a few hours afterward.

A lawsuit was filed on her behalf claiming that the patient had not been informed that the physician was not board certified and had been retained through a temporary agency by the gynecology group. It was alleged that the bowel was not properly examined for possible injury during the initial procedure because the cut was in the area where the ovaries rested against the colon. A $1 million settlement was paid on behalf of the physicians only.

MS. COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback about this column via e-mail to

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