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.
Ureter sutured during hysterectomy
A Nebraska woman in her mid-40s underwent a total abdominal hysterectomy. She subsequently sued the gynecologist and claimed that her right ureter was sutured during the procedure, and the injury was not promptly diagnosed. The patient claimed she suffered kidney damage and the removal of one kidney after conservative therapy was unsuccessful.
The physician claimed that the suturing was a known complication of the operation. The jury rendered a defense verdict.
A 34-year-old Michigan woman underwent a laparoscopic tubal ligation, performed by her gynecologist. After the surgery, she suffered a hernia, which had to be repaired with an open procedure. The woman complained of chronic constipation and gas as a result of the surgical complications, and also claimed the condition ruined her marriage.
The woman sued the gynecologist, alleging that the physician failed to stitch the fascia closed, which led to the hernia.
The physician contended that a hernia is a risk of any incision, and he was not required to stitch the fascia closed. Because the hernia occurred through an adhesion and below the fascia, a stitch would not have prevented the hernia. He also argued that the patient's marriage was in peril before the incident and that she had separated from her husband before complaining of a chronic condition. The jury rendered a defense verdict.
In both of these cases, the physicians claimed that what occurred was a known complication of the given procedure, the problem was repaired, and there was no negligence. The two keys to defense of a case involving a known complication are timely recognition of the complication with appropriate management and demonstration of informed consent, including known risks of the procedure, signed by the patient. Of course, the best evidence of those two things is timely, contemporaneous, and thorough documentation. With that, successful defense is possible, even in cases where a complication leads to a significant untoward result, such as loss of a kidney.
Was decreased fetal movement unrecognized?
In 2002, a pregnant New York woman close to term went to the hospital complaining of vaginal bleeding and abdominal pain. After she was placed on a fetal monitor, her physician examined her and found that she was only 1-cm dilated. The woman was then sent home to await labor.
Nine days later, the woman noted no fetal movement; 2 days later she returned to the hospital with vaginal bleeding, rupture of membranes (ROM), and said that she could not detect any fetal movement. The ROM was confirmed by physicians, who also noted presence of meconium. A fetal heart rate was found but eventually indicated fetal distress, and a cesarean delivery (C/S) was performed. The infant suffered respiratory distress and seizures at birth and was diagnosed with brain damage, cerebral palsy, cortical blindness, and mental retardation.
The lawsuit claimed the brain damage was caused by oxygen deprivation that occurred during the hours preceding birth, and that the C/S should have been performed shortly after the woman's arrival at the hospital the second time.
The defense contended that the C/S was timely performed and claimed that the brain damage occurred due to a cerebral infarction that happened before the day of delivery. A $3 million settlement was reached.
Severe infection after cesarean
A 34-year-old Massachusetts woman delivered a child by C/S. After delivery, she developed symptoms of endometritis and was released from the hospital and readmitted twice for treatment of the infection. She subsequently developed necrotizing fasciitis, and 10 days after delivery, she was transferred by ambulance to another hospital in critical condition. The transfer occurred hours after her original physicians had reported that the infection was under control.
The patient was immediately taken to surgery and spent 5 weeks at the hospital undergoing multiple operations for debridement of her abdominal wall, removal of the infected muscle and skin, and a hysterectomy to remove a badly infected uterus. She required plastic surgery reconstruction and skin grafting to repair her abdominal wall and loss of skin.