This case illustrates the importance of obtaining informed consent for any procedure.
By Dawn Collins, JD
A 35-year-old Oregon woman with 5 children was evaluated by her ob/gyn for a history of worsening right-sided pelvic pain. An ultrasound revealed a complex cyst on her right ovary and a normal-appearing left ovary. The gynecologist recommended a diagnostic laparoscopy with removal of her right ovary, which the patient underwent in 2011. During the operation the physician found no cyst on the patient’s right ovary, but found cystic and inflammatory problems affecting her left ovary, significant adhesions on the left, and abnormalities on both Fallopian tubes, which he removed. After surgery the patient’s right-sided pain worsened and she presented to the emergency department (ED) 2 days later. An ultrasound revealed that her left ovary had been removed, and the right was still intact. She subsequently had her right ovary removed 5 months after the original operation.
The patient alleged that she endured emotional distress and premature menopause. She sued the ob/gyn, alleging he was negligent in removing her healthy left ovary rather than her cystic right ovary.
The ob/gyn argued that he provided informed consent for the diagnostic laparoscopy and included the information that any abnormal tissue would be removed if it was found on either the right or the left side.
The jury returned a defense verdict.
This case illustrates the importance of obtaining informed consent for any procedure to be performed, but especially diagnostic procedures in which the actual abnormal pathology, if any, is unknown prior to the operation.
The case was successfully defended by showing that informed consent was obtained, that it included the removal of any abnormal tissue, and that it was documented in the medical record.
A 35-year-old Michigan woman pregnant with twins presented to the hospital at 33 weeks’ gestation. She was found to have high blood pressure and proteinuria, and was admitted for delivery. The twins were delivered via cesarean and because of their prematurity and low birth weight, were admitted to the neonatal intensive care unit (NICU). Twin A started breathing rapidly and was placed on oxygen with continuous positive airway pressure (CPAP) therapy. He continued to have breathing problems over the next 2 days and then suffered a collapsed lung and was intubated. He required a chest tube and was hospitalized for 36 days. His brain imaging was initially normal, but on discharge some brain injury was seen on imaging. The child now suffers from brain damage, hypotonic non-spastic cerebral palsy, developmental delays, cognitive deficits, and hearing loss.
The patient sued those involved with the delivery, and alleged the brain damage was due to lack of oxygen. They contended that the nasal cannula CPAP was set too high, and air in the chest was not recognized in a timely manner, resulting in the collapsed lung, decreased oxygen, slow heart rate, and low blood pressure. They further argued that the intubation was misplaced and not done timely, causing more injury.
The defense asserted that the infant’s injuries were due to the maternal preeclampsia that necessitated early delivery and wererelated to prematurity as well as twin-twin transfer syndrome and probably genetics.
The parties reached a settlement agreement in the amount of $4.35 million.
In 2004, a New Jersey obstetrician performed a delivery in which a terminal bradycardia was encountered. He chose to use a vacuum to deliver the infant in an effort to avoid asphyxia and brain damage. The infant was acidotic and was resuscitated, but subsequently diagnosed with Erb’s palsy, and has permanent brachial plexus injury with limited function of the shoulder, arm, and hand.
In the lawsuit that followed it was alleged the physician failed to recognize or record that the delivery was complicated by a shoulder dystocia, and that he applied too much traction to the fetal head as he attempted to expedite the delivery.
The jury returned a verdict in favor of the child and awarded $1 million.
A 33-year-old Texas woman developed an increased temperature following delivery. She was given acetaminophen and the temperature returned to normal. She complained of postpartum pain and required narcotic pain medications. The obstetrician discharged the patient the next day. She then developed severe pain that worsened, returned to the hospital the next day and was admitted with a diagnosis of sepsis of uncertain origin. The woman was subsequently found to have a group A streptococcal infection. She underwent a course of intravenous antibiotics and was later transferred to a major hospital. A tracheotomy was performed and she was placed on a ventilator. Multiple chest tubes were also placed and she spent several days in the intensive care unit and remained on a ventilator during a 2-week hospital stay.
The patient sued those involved with her postpartum care and alleged that they failed to treat her infection in a timely manner. She contended that the physician should have ordered an infection work-up on her in the hours after delivery when she complained of severe pain and had spikes in temperature. She alleged she was in severe pain even when discharged, and that she continues to experience fatigue and decreased stamina. She also claimed the chest tubes left scars. She stated that she missed bonding with her son as a newborn.
The defense argued the patient’s clinical picture did not warrant an infection work-up, that Group A strep infection is exceedingly rare and that, in this case, the infection did not have a pelvic or obstetrical source and probably originated in the lungs.
The jury returned a defense verdict.
A Massachusetts woman was 28 weeks pregnant when she presented to the hospital in 2004 with complaints of decreased fetal movement. The pregnancy was considered high risk due to her history of kidney disease and kidney transplant and the anti-rejection medications she was taking. She was admitted to the hospital with a fetal heart rate (FHR) that showed some decelerations. The next morning the FHR dropped into the 50–70 bpm range and the obstetrician was called and informed. He told the residents to continue monitoring the heart rate and to provide intravenous fluids to the patient. Later that day, the residents again called the obstetrician to inform him of the fluctuating FHR and the same orders were given. At 9:45 pm the FHR dropped and remained down for about 6 minutes. The residents ordered and performed an emergency cesarean delivery. At birth the infant required resuscitation and was transferred to the neonatal intensive care unit where she remained for 3 months. The infant suffered a severe brain injury and has spastic quadriparesis, uses a wheelchair, is unable to talk, is legally blind, and has both a permanent tracheostomy tube and a gastrostomy tube.
The patient sued those involved with the delivery and alleged that the obstetrician deviated from the standard of care by failing to timely deliver, or request delivery by another physician. She also alleged that the residents failed to properly evaluate and recognize the need for emergency cesarean delivery earlier in the day. She claimed the infant’s injuries were due to the lack of oxygen to her brain during the decelerations in the FHR.
The defense argued that the infant’s brain injury was due to an infection she contracted in utero, for which she was treated after delivery, and not the lack of oxygen.
The jury awarded the child $29.8 million in damages, and attributed all negligence to the attending obstetrician.
A 34-year-old Illinois woman gave birth to her second child by vaginal delivery in 2010. She subsequently sued her obstetrician and alleged that he was negligent in failing to perform a cesarean after a prolonged second stage of labor and that he improperly utilized forceps to deliver the infant, which caused the patient to sustain a 4th-degree perineal tear extending into her rectum. She further claimed that he erroneously diagnosed the tear as a 2nd-degree laceration, delaying proper repair and resulting in contamination of the wound, infection, and failure of subsequent attempts at repairing the perineum. The patient suffered from persistent rectovaginal fistula for 5 years, requiring multiple operations.
The physician contended that allowing the labor to continue and using forceps for delivery was reasonable. He argued that the patient did sustain a 2nd-degree laceration during delivery and it was properly repaired, explaining that the 4th-degree tear occurred the next day due to attenuated perineal tissue.
The jury awarded the patient $11 million.
A 38-year-old Indiana woman underwent surgery in 2006 to remove her ovaries and Fallopian tubes. The gynecologist decided during the surgery that it was unsafe to do the procedure laparoscopically and converted to an open procedure. He was unable to locate or remove the patient’s left ovary and Fallopian tube. The patient’s abdominal pain continued and 3 years later she presented to the gynecologist again with abdominal pain. She was diagnosed with adnexal cysts and admitted to the hospital. She underwent a second operation in 2010 in another effort to locate and removed the left ovary and Fallopian tube. The physician was still unable to locate the structures and finally concluded they were simply not present. Following surgery the patient complained of pervasive pain, which she reported to the gynecologist for several days. On the third day postop she was taken by ambulance to the emergency department, where she underwent emergency surgery. A bowel perforation was discovered and the patient became septic. She had a colostomy, followed by several other operations. Her left ovary and Fallopian tube were eventually located and removed.
The woman sued the gynecologist and alleged he was negligent in his performance of the surgery and that he did not obtain informed consent or warn her of the possibility that bowel perforation could lead to a colostomy.
The physician contended that a bowel perforation is a known complication of the procedure and not indicative of below-standard care. A medical review panel concluded unanimously that the evidence did not support the conclusion that the physician had breached the standard of care.
A defense verdict was returned.
A Kansas woman presented to the hospital in labor at 36 weeks’ gestation. Her labor was managed by a midwife until it was decided that the fetus was not sufficiently descended into the birth canal, and she was turned over to an obstetrician. She was allowed to push for 1 hour and then the obstetrician applied forceps and exerted traction over 3 contractions, then removed the forceps and delivered the baby 5 minutes later. The infant had a skull fracture, bleeding in the brain, and traumatic epilepsy, and now has cognitive deficits, learning disabilities, and motor problems.
The woman sued her obstetrician and alleged that the fetus had not descended enough to warrant forceps, that she had cephalopelvic disproportion, and that the physician had misapplied the forceps and pulled 6 or 7 times.
The obstetrician contended the fetus was low in the birth canal for outlet forceps, and she properly applied them. She denied all allegations of negligence.
The jury returned a defense verdict.
A 58-year-old Virginia woman underwent a laparoscopic hysterectomy in 2010. She was admitted to the hospital overnight awaiting her ability to have a bowel movement and urinate. She was discharged the next day, even though she still had not done either. She had solid food that evening and experienced immediate nausea, general abdominal pain, and sleeplessness. She presented to her gynecologist in the morning and was promptly admitted to the hospital. She was unable to pass gas for several days, became feverish, and was placed on antibiotics. After 8 days she was transferred to the intensive care unit by a general surgeon due to shortness of breath and tachycardia. She underwent exploratory abdominal surgery on day 11 after her original operation. Several abscesses were found and a 1-cm perforation at the recto-sigmoid colon area was discovered. The surgeon repaired the perforation and created a diverting colostomy. The patient underwent 5 exploratory abdominal washout procedures, and was hospitalized 40 days. She required a colostomy reversal 8 months later and then recovered well.
The woman sued those involved with her original operation and alleged the gynecologist negligently perforated the bowel and failed to recognize it and that he never provided an explanation to her of what went wrong in her surgery.
The gynecologist claimed the hysterectomy was performed without incident, and the perforation was caused by a sudden rupture of a diverticulum 10 days after the hysterectomy. He also admitted that the harmonic scalpel might have caused colon damage during the procedure.
The patient’s colorectal surgery expert opined that the patient did not suffer a ruptured diverticulum and argued that the colon perforation likely occurred within 24 hours of the hysterectomy. Her gynecologist expert witness opined that the patient’s injuries were most likely due to the harmonic scalpel or the power morcellator.
The jury returned a verdict for the patient in the amount of $860,000.