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When a jury sees a big corporation in the defendant’s chair, it can have an effect, although it is never a jury’s job to “punish” a corporation.
Ms. Collins is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback to this column via email to firstname.lastname@example.org.
A 39-year old Florida woman had a Pap smear in 2008, which a cytotechnologist read as normal. Two years later the patient was diagnosed with a golf-ball-sized cancerous tumor of the cervix. She died of cervical cancer in 2011.
The woman’s estate sued the laboratory that analyzed the 2008 Pap smear and claimed it negligently misread the test. Her attorneys maintained that a conization biopsy and treatment at that time would have resolved the cancer.
The laboratory argued that the Pap smear interpretation was reasonable and that the cancer could not have been diagnosed in 2008. They also claimed that the patient was at fault in failing to have follow-up examinations during the next 2 years.
The jury found the cytotechnologist 75% at fault and the patient 25% at fault and returned a $20.9 million verdict.
A New Jersey woman sued her gynecologist and a laboratory after she was diagnosed with advanced cervical cancer in 2009. In 2001, she had an abnormal Pap smear and was told to return in 3 months for a repeat check but she did not see that gynecologist until 2007. At that time, she had some symptoms, but her Pap smear was normal and no further testing was ordered. Two years later, the woman was diagnosed with cervical cancer and she died in 2011 at age 48. In her lawsuit, the woman’s estate claimed that the second Pap smear was incorrectly interpreted. Her attorneys also claimed that further testing should have been ordered in 2001 and 2007.
The physician claimed that the patient did not return in 2001 as ordered, and when she did come to the office in 2007 her Pap smear was normal.
The laboratory corporation entered into a confidential settlement prior to trial. The jury found negligence by the gynecologist and assessed 40% fault to her. The laboratory was assessed at 50% fault and the patient was assigned 10%. The gross verdict was for $2.33 million.
Next: Analysis of these two cases >>
These 2 cases have similar situations but a large disparity in the amounts of the awards. Although the verdict in the first case was reduced to $15.8 million, it is still a huge monetary award for this type of case. The first case proceeded against the laboratory corporation only, so the jury saw a big corporation in the defendant’s chair. This might have had an effect, although it is never a jury’s job to “punish” a corporation. Also in the first case, post-trial motions were pending claiming possible evidence that the patient had been treated by another physician in 2010. If the defense team can show that a Pap at that time was normal, the huge award may be moot.
In 2010, a 37-year-old Maryland woman 40 4/7 weeks pregnant with her fourth child went to the hospital with ruptured membranes. The following day an ob/gyn performed a cesarean delivery of a healthy infant. The day after the delivery, the patient had an elevated white blood cell (WBC) count with a left shift. Her abdomen was tympanic but soft and she was passing flatus and belching. Her obstetrician ordered an enema. The results noted gas passed but no stool. The covering obstetrician then ordered an abdominal x-ray, which was reported to show a postoperative ileus and mild constipation.
The patient was given a second enema the next day and was noted to have watery stool with only minimal relief. She then vomited dark green emesis.
Two days later a rectal tube was placed and brown loose stools were noted. The patient vomited several times that day and had hypoactive bowel sounds. She continued to have elevated WBC counts and on her fifth postoperative day, bowel sounds were hypoactive but she tolerated clear liquids. The woman was discharged home later that day with instructions to continue on a clear liquid diet for 1 or 2 more days.
The next day she was found unresponsive at home and was taken to a hospital, but resuscitation attempts were unsuccessful. An autopsy revealed the cause of death to be sepsis.
The lawsuit that followed her death alleged negligence by those involved with her care. The claim against the obstetricians was a failure to diagnose and treat a postoperative intra-abdominal infection caused by a bowel perforation. It was argued that a surgical consult should have been obtained and that the woman was prematurely discharged from the hospital. The suit also claimed that the radiologist failed to report the presence of free air on the abdominal x-ray, which would have led to a timely diagnosis of bowel perforation.
A $1 million settlement was reached during trial.
In 2009, a patient was seen at a Michigan ob/gyn clinic with complaints of continuous vaginal bleeding, pain, and shortness of breath when walking. She was found to have profuse vaginal discharge, a normal cervix, and a significantly enlarged uterus. The woman was diagnosed with symptomatic uterine fibroids, failed uterine artery embolization, chronic pelvic pain, chronic endometritis, and a history of multiple abdominal surgeries.
A full abdominal hysterectomy was scheduled and performed the next month by the gynecologist with assistance from a third-year resident. The physicians encountered extensive adhesions and difficulty dissecting tissue.
After the surgery the patient was anemic and received a beta blocker for tachycardia. She received intravenous antibiotics for 48 hours after surgery and was discharged home on the third postoperative day.
A month later, the woman complained of leaking urine and was referred to a urologist, who diagnosed a vesicovaginal fistula. She underwent nephrostomy tube placement and, 4 months after that, a right ureterolysis and right ureteral reimplant.
The woman sued the gynecologist and claimed that her ureter was negligently injured during the hysterectomy.
The physician argued that ureter injury was a known risk of the procedure and that the patient had extensive adhesions, making it a difficult operation. She also claimed that the injury could have been due to the infection or a delayed effect of ischemia. Further, she claimed the patient had a repair with a good recovery and no residual injury.
A defense verdict was returned.