November Case Summaries (2007)

Failure to inform of risks associated with VBAC

A Kentucky woman went to her obstetrician in 1998 for prenatal care. She had a history of previous cesarean section 16 years earlier. She had a difficult pregnancy and came to the hospital for delivery at term in 1999. Her obstetrician was on vacation at the time and his partner managed the delivery. The delivering physician discussed at length with the patient and her husband the risks and benefits of vaginal birth after cesarean (VBAC) and obtained the patient's consent. This was documented in the chart in a detailed note. After 3 hours of labor, a uterine rupture occurred and an emergency C/S was performed. The newborn required resuscitation and was transferred to another hospital, but died the next day of asphyxia.

The patient sued all those involved with the delivery and alleged negligence in failing to advise her of the risks of VBAC. She claimed that she would not have attempted vaginal birth if she had been properly informed of the risks.

The delivering physician was dismissed by a directed verdict. The plaintiff presented no expert testimony, relying on the physician and his expert witnesses for the standard of care. Summary judgment for the defense was initially granted but was reversed on appeal. At trial the matter presented to the jury was on the lack of informed consent claim and a defense verdict was returned.

Legal perspective

While it's unusual for a case to be based only on the lack of informed consent and rare for a plaintiff to win on that alone, we occasionally see a case presented on the issue of consent.

In the case discussed here, the ideal would have been a consent note in the chart prior to the arrival at the hospital. Fortunately for this physician, however, his expert witnesses and his presentation of his usual and customary practice, as well as his memory of a consent discussion-and the fact there was a detailed note by the delivering obstetrician documenting consent for VBAC-resulted in a defense verdict.

Failure to measure nuchal thickness on U/S alleged

In 1995, a New Jersey woman underwent an ultrasound at 16 weeks' gestation. The patient claimed that this showed the fetus had excess tissue around the neck and thus an increased risk for Down syndrome. Her obstetricians each signed the U/S report finding no abnormalities. The patient subsequently delivered an infant with Down syndrome.

The woman sued the obstetricians and claimed they should have recognized and measured the nuchal thickening and ordered additional tests; that had Down syndrome been diagnosed she would have had the option of terminating the pregnancy. A $2.07 million settlement was reached.

Failure to refer to an obstetrician

In 2000, an Illinois woman received prenatal care from her family practitioner and went into labor at 34 to 36 weeks' gestation. During her pregnancy she had failed a 1-hour glucose test, but did not do the 3-hour follow-up test. During the delivery a shoulder dystocia was encountered and a nuchal cord was noted. An attempt to reduce the nuchal cord was made but it was torn in the process, causing 3 to 5 seconds of bleeding prior to the cord being clamped. The infant was born depressed, but was successfully resuscitated. Over the next 3 months his neurologic status degenerated and he was diagnosed with hypoxic ischemic encephalopathy and subsequently died.

In the lawsuit that followed, the patient alleged negligence in the failure to order the 3-hour glucose test, failure to refer her to an obstetrician, failure to order tocolytic medication to stop premature labor, and the use of too much force in reducing the nuchal cord.

The physicians claimed that no obstetric consult was required, that tocolytics were not indicated, and that the cord ruptured due to a problem with the integrity of the cord and not due to excessive force. They argued that the hypoxic ischemic encephalopathy was due to a hypoxic event that occurred in utero, based on the finding of periventricular leukomalacia that was seen on an ultrasound on the first day of life. A defense verdict was returned.

Erb's palsy blamed on excessive force