March case summaries

March 1, 2007
Dawn Collins, JD
Dawn Collins, JD

MS COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail. Click on the envelope icon to email.

Clinical situations that typically result in litigation and the variation in jury verdicts and awards across the nation.

Failure to monitor FHR prior to cesarean

A California woman presented to labor and delivery 4 days after her due date in 1998. Progress of labor was slow and oxytocin was started. The obstetrician examined the patient about an hour later, ruptured the membranes, and placed a scalp electrode. Three hours later the nurses contacted the physician and reported that labor was progressing, but they were concerned about the fetal heart rate. The obstetrician requested the FHR strip be faxed to her office for review. About 2 hours later the obstetrician examined the patient and ordered a cesarean; the scalp electrode was removed in preparation for surgery. No FHR monitoring was recorded for almost an hour before delivery. At delivery the infant required resuscitation and had Apgar scores of 4, 6, and 7 at 1, 5, and 10 minutes, respectively. No cord gases were done and the infant suffered severe hypoxic brain damage and has spastic quadriplegia.

The patient sued and claimed the obstetrician completely lacked an understanding of the FHR data, was unable to interpret it, failed to order an emergency C/S, and should not have discontinued the FHR monitoring. She also claimed the nurses failed to notify the obstetrician about the FHR pattern in a timely fashion, and failed to mobilize operating room personnel quickly enough to perform a prompt C/S.

Legal perspective

In this case there were many issues relating to the interpretation and management of the FHR data, including the identification of FHR patterns, notification and communication between the nurses and physician, a delay in performing the C/S, and the failure to monitor the FHR for an hour prior to delivery. While some of these issues are dependent on expert opinions or adequate documentation, the lack of FHR monitoring, by whatever means, is a clear breach of the standard of care. The Guidelines for Perinatal Care clearly states that "[in] women requiring cesarean delivery, fetal surveillance should continue until abdominal sterile preparation has begun. If internal fetal heart rate monitoring is in use, it should be continued until the abdominal sterile preparation is complete." (Guidelines for Perinatal Care, 5th ed., page 148.) Without this documentation it becomes very difficult to prove there was no ongoing asphyxia sufficient to cause damage during the hour preceding delivery.

Ureter injured during hysterectomy

In 2000, a 51-year-old Illinois woman underwent a total abdominal hysterectomy and salpingo-oophorectomy performed by her gynecologist. About 3 days later, she was noted to have elevated creatinine and was diagnosed with a ureteral obstruction. The patient did not suffer any permanent urologic damage, but underwent numerous procedures, including ureteral reimplantation, replacement of a nephrostomy tube, and multiple stent placements and removals.

The patient filed a lawsuit against the gynecologist, contending the left ureter was sutured during the operation, causing ureteral obstruction, which required multiple corrective procedures to avoid permanent kidney damage.

The gynecologist argued that there was no evidence of a suture in the ureter, and if a suture was the cause of the obstruction, it was a known complication of the surgery. The jury found for the patient and awarded $342,251.

Failure to diagnose twin pregnancy

A Michigan woman was delivered vaginally by an obstetric resident and attending physician. After the delivery they waited 45 minutes for the placenta to be expelled and when an examination was performed, a second fetus was discovered. This twin had seizure activity and was started on medication and now has mild spasticity, cognitive delay, and mild motor dysfunction.

In the lawsuit that followed this delivery, the patient claimed that waiting 1 hour to deliver the second fetus resulted in hypoxic encephalopathy. She also claimed the radiologist interpreting a prenatal ultrasound failed to diagnose a twin pregnancy.