Woman claims she was not informed of risk of Down syndrome

August 1, 2010

A Maryland woman received prenatal care from her obstetrician and delivered a child with Down syndrome in 2006. The patient sued her doctor, claiming that he failed to tell her that the "triple screen" blood test he ordered had revealed a 1-in-37 chance of her child being born with Down syndrome. She claimed that had she been informed of the test results, she would have terminated the pregnancy.

The obstetrician argued that the patient had been informed of the results 3 times and that she had refused to undergo a recommended amniocentesis for a definitive diagnosis.

A defense verdict was returned.

Although it is not impossible to prove that something was done but was not documented in the patient's chart, this case illustrates the importance of documenting in the medical record the physician's awareness of test results and that the patient was notified of those results and any follow-up recommendations and instructions, as well as the patient's response.

VBAC with ruptured uterus

A MICHIGAN WOMAN with a previous history of one vaginal delivery and one cesarean delivery was attempting vaginal birth after cesarean delivery (VBAC). When the patient began pushing, the physician observed 5 or 6 pushes with little progress and left the room to deliver another patient.

The patient and her husband later claimed that they had asked for a cesarean delivery at that time and had relayed their concern about the lack of progress to the nurse. The nurse had assured them that all was going well. Their concerns were not communicated to the physician.

About an hour later, the fetal heart rate (FHR) was lost from the external tracing. After about 9 minutes of signal loss, an FHR of 60 was found, and the patient underwent emergency cesarean delivery. A ruptured uterus was confirmed.

The infant was resuscitated and diagnosed with hypoxic ischemic encephalopathy. At age 5, he had no purposeful movement of his extremities, was unable to communicate, and was confined to a wheelchair. He was not cognitively impaired, however.

A lawsuit claiming a failure to respond to the loss of the FHR was filed against the physician and the hospital. The defense claimed that uterine rupture was a risk of VBAC and that the 9-minute delay in seeking obstetric intervention was not the proximate cause of the infant's injuries.

The physician offered the full insurance policy limits before trial. A $4.9 million settlement was reached.

LEGAL PERSPECTIVE In this malpractice case, the parents claimed that the nursing staff had failed to immediately respond to the loss of FHR signal on the monitor screens or to the alarm that sounded when the signal was lost. The parents claimed that when the nurses did respond, a nurse allegedly stated with some concern that she could not believe that no one had responded to the signal loss or alarm. The obstetrician confirmed this statement. A motion to preclude the admission of this statement to the jury was denied, and the case was settled.

Had the patient been delivered within the guidelines of a timely delivery in VBAC patients, this case might well have been defensible. This emphasizes the importance of being careful and conscious of what is said to and in front of patients and family members, especially in emergency situations.

MS COLLINS is an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to dawncfree@gmail.com
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