Malpractice

October 1, 2000

MALPRACTICE

 

MALPRACTICE
Risk management in obstetrics and gynecology

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Patient transfer results in stillbirth

The husband of a woman who was approximately 30 weeks' pregnant drove her to the emergency room of a hospital in northern Indiana because she was experiencing heavy and continuous vaginal bleeding. In the emergency room, the woman's condition was monitored by an obstetrical nurse, but she was never seen by the obstetrician on call or by any other physician at the hospital. Frightened by the continued heavy bleeding, the patient and her husband requested a transfer to another hospital for what they believed would be more appropriate care. Because of the patient's concern, the obstetrical nurse telephoned the physician on call, who approved the request for transfer to another hospital solely over the phone; the physician never saw the patient. The woman was transported by ambulance to the other hospital, accompanied by an obstetrical nurse. Shortly after arrival there, it was determined that the patient had suffered a placental abruption and the baby was stillborn.

The woman and her husband filed a lawsuit under the Emergency Medical Treatment and Active Labor Act (EMTALA)—the federal anti-dumping statute—and a malpractice claim. The information obtained from the deposition of the on-call physician, coupled with the professional opinions of the plaintiffs' medical experts, established that the physician had breached the applicable standard of care for obstetrical patients presenting in the emergency room. Since the hospital acknowledged that the physician was its full-time employee, the physician was dismissed from the case and a settlement was reached with the hospital before submissions were filed with the medical review panel. The $725,000 settlement was paid from the patient compensation fund in the form of a structured settlement. The EMTALA action was dismissed since plaintiffs were satisfied with their recovery under the Medical Malpractice Act.

Legal perspective

The federal anti-dumping statute is often used against hospitals/emergency rooms. The typical case involves the failure to adequately treat an emergency room patient, many times due to insurance coverage discrepancies. Transferring a patient to another facility in an unstable condition, for whatever reason, can also subject the physician who authorizes the transfer to a malpractice claim for "dumping" the patient.

In the case described here, the physician on call was the person responsible for allowing the patient to be transferred. Even though the woman requested the transfer, it was the physician's responsibility to assess the patient's condition prior to transfer and to make a sound medical judgment. The plaintiffs here contended that the physician had abandoned her patient. When the physician is an employee, as in this case, or is determined to be an agent of the hospital, both are held responsible for the transfer of the patient. Thus, the hospital was exposed to the lawsuit under the EMTALA. It would be prudent to keep this anti-dumping statute in mind when considering transferring a patient whom the physician has never seen.

No C/S capability

A lawsuit arose out of the delivery of a child at a military hospital in Texas. The woman claimed that because she suffered from preeclampsia, a cesarean section should have been performed, but was not. The procedure had not been done, she alleged, because the staff was inadequately trained to perform it. Furthermore, the woman claimed that she should not have been admitted to this hospital since she had a high-risk condition and the hospital was not equipped for high-risk pregnancies.

The child allegedly suffered hypoxic brain injury due to a delay in delivery, application of high forceps, and performance of a vacuum extraction. These actions caused massive intracranial bleeding, skull fractures, and other traumatic brain injury. The defense presented evidence that the delivering doctor destroyed the nursing notes documenting a request for C/S. The chief of obstetrics at the hospital testified that the hospital and its personnel "paid lip service to the standard of care." The government ultimately admitted liability and causation and a trial was held on the amount of damages. A $48 million verdict was later reduced by the Court to $44.7 million.

Failure to biopsy a breast mass

In 1996, a Texas woman was referred to a surgeon for consultation regarding a suspicious breast lump. The surgeon felt the lump and told the patient that the lump was caused by fibrocystic changes and not cancer. No other testing was performed. Eighteen months later, the woman was referred to another surgeon, who diagnosed the lump as malignant breast cancer.

The patient sued the first surgeon and the group to which she belonged, claiming that a biopsy should have been performed at the first visit and would have resulted in diagnosis of the cancer in 1996. She argued that her chances of survival had fallen from 90% to less than 30%. The woman also charged that if the cancer had been detected in 1996 she could simply have had a lumpectomy and radiation therapy, but because of the delay in diagnosis, she had to undergo a radical mastectomy and chemotherapy, in addition to the radiation therapy.

The jury returned a $750,000 verdict for past pain and suffering, mental anguish, disfigurement, and physical impairment, and a $1.5 million verdict was returned for future damages.

Delay in treating seizures

In 1992, a 29-year-old woman who was 7 months' pregnant was hospitalized for visual disturbances and headaches. The second day of her hospitalization, she had a grand mal seizure. She was found flaccid, unresponsive, drooling, and pale, but the neurologist and obstetrician were not called until 20 minutes later. Phenytoin was ordered but not administered. The patient had two more seizures and the fetal heart rate dropped with each one.

A new nurse came on and, after speaking with the neurologist, was preparing to give the woman phenytoin. An emergency C/S was ordered and the anesthesiologist cancelled the phenytoin order as he was preparing to administer general anesthesia. The infant was delivered 1 hour after the first seizure, weighed 3 lb, 7 oz, at birth, and had Apgar scores of 4 and 7. The infant seemed to be reasonably healthy at birth, but developed an Escherichia coli infection in the nursery and went into septic shock. The child, who was 6 years old at the time of the trial, has cerebral palsy and spastic quadriplegia.

The woman sued the hospital, the obstetrician, the neurologist, and the anesthesiologist. She claimed that the nurse going off duty did not give the phenytoin nor did she inform anyone about the order, thus causing the two additional seizures to occur. The anesthesiologist further delayed treatment for the seizures. The woman argued that the fetal hypoxia during the seizures "wounded" the infant and contributed to the sepsis.

The defendants argued that all the infant's injuries were caused by septic shock and prematurity and that the life expectancy proffered by the plaintiff was greatly exaggerated. The New York jury returned a $103.1 million verdict against the defendant hospital, but returned defense verdicts for the defendant physicians.

IUGR and placental abruption

A Michigan mother was under the care of an obstetrician/gynecologist when he made a fundal height measurement late in her pregnancy that was indicative of intrauterine growth retardation (IUGR). A subsequent ultrasound showed borderline IUGR. The physician scheduled the patient for induction approximately 48 hours later. In the interim, she suffered a complete placental abruption and was rushed to the hospital for an emergency C/S. The infant died 9 days later when she was removed from a ventilator.

The woman sued the obstetrician and his medical group on behalf of the infant and alleged that the evidence of IUGR on U/S, combined with certain risk factors of the mother, necessitated immediate delivery. The delay in scheduling induction resulted in the placental abruption and the baby's ultimate death.

The physician contended that the U/S showed borderline IUGR and, therefore, an immediate induction was unnecessary. Furthermore, the placental abruption was an unforeseen and unpredictable event. The jury returned a defense verdict.

Failure to perform C/S

A 24-year-old woman under the care of an Ohio obstetrician/gynecologist delivered vaginally an 8 lb, 12 oz infant at term. The woman's labor lasted 2 1/2 hours and she underwent a medial lateral episiotomy, leading to a scar that later required revision. The woman allegedly suffered painful scarring, numerous infections, and sexual dysfunction. She sued the obstetrician, alleging that he was negligent in failing to perform a C/S and that as a result, she suffered painful scarring and infection from the episiotomy and the revision procedure.

The physician contended that the vaginal delivery was appropriate, based on the size of the infant and the length of the labor, and that the patient knew and assumed the risk of the revision procedure. The jury returned a defense verdict.

Erb's palsy and dystocia

In 1995, an infant was delivered vaginally to a woman in a New York hospital. A shoulder dystocia was encountered during the delivery, and the infant had a mild Erb's palsy. In the subsequent lawsuit, the woman claimed that a vaginal delivery was inappropriate, since the mother did not have a "proven pelvis," was a gestational diabetic, and more prone to a large baby. She contended that the midwife was aware of these risk factors and should have determined that a C/S was necessary. The patient also claimed that the midwife failed to use proper delivery maneuvers and applied excessive traction, and that the hospital failed to properly supervise the delivery by a midwife. She further alleged that the defendant deviated from the accepted standards of care by failing to notice the size of the fetus on the sonograms and to use the Woods "corkscrew" maneuver to manage the shoulder dystocia.

The defendants denied that the mother had risk factors for shoulder dystocia and claimed that appropriate care was given. The defendants contended that Erb's palsy sometimes occurs during vaginal delivery without negligence and that the infant had made a complete recovery. This case settled for $500,000.

Sponge left in uterus following delivery

A 35-year-old woman went to her obstetrician/gynecologist for prenatal care. She had had a difficult vaginal delivery, which resulted in hemorrhaging. The physician allegedly left a sponge inside the patient's uterus following the delivery. The patient sued the physician, charging that he was negligent in failing to remove the sponge in a timely manner and that she suffered emotional distress due to this negligence. She cited psychological damage as her injury.

The physician contended that sponges can be retained in the absence of negligence, that the sponge was ultimately removed, and that plaintiff suffered no damage. After deliberations, the Connecticut jury returned a defense verdict.

Department editor Dawn Collins, JD, is an attorney specializing in medical malpractice in Long Beach, Calif. She welcomes feedback on this column via e-mail to DawnCF@aol.com.
 

Many times, the factual information available about the cases presented here is incomplete. Thus it may not always be possible to discuss all of the elements of negligence or nuances involved in a given situation. The outcomes described also may not reflect the current standard of care or the best practice in obstetrics and gynecology. What these cases do represent are the types of clinical situations in the specialty that typically result in litigation and the variation in jury verdicts and awards across the nation. Some of the cases described have merit but many do not.

Dawn Collins, JD

 

Dawn Collins. Malpractice. Contemporary Ob/Gyn 2000;10:124-133.