Managing Your Practice

Woman loses both legs after salpingectomy: $64.3M award
Due to an ectopic pregnancy, a 29-year-old woman underwent laparoscopic salpingectomy in October 2009. A resident supervised by Dr. A (gynecologist) performed the surgery. Although the patient reported abdominal pain and was febrile, Dr. B (gynecologist) discharged her on postsurgical day 2.

The next day, she returned to the emergency department (ED) with abdominal swelling and pain. Dr. C (ED physician), Dr. D (gynecologist), and Dr. E (general surgeon) examined her. Dr. D began conservative treatment for bowel obstruction. Two days later she was in septic shock. Dr. E repaired a 5-mm injury to the sigmoid colon and created a colostomy. The patient was placed in a medically induced coma for 3 weeks. She experienced cardiac arrest 3 times during her 73-day ICU stay. She  underwent skin grafts, and suffered hearing loss as a result of antibiotic treatment. Due to gangrene, both legs were amputated below the knee.

At the trial’s conclusion in January 2014, the colostomy had not been reversed. She has difficulty caring for her daughter and has not worked since the initial operation.

PATIENT’S CLAIM The resident, who injured the colon and did not detect the injury during surgery, was improperly supervised by Dr. A. Hospital staff did not communicate the patient’s problem reports to the physicians. Dr. B should not have discharged her after surgery; based on her reported symptoms, additional testing was warranted. Drs. C, D, and E did not react to the patient’s pain reports in a timely manner, nor treat the resulting sepsis aggressively enough, leading to gangrene.

DEFENDANTS’ DEFENSE The patient’s colon injury was diagnosed and treated in a timely manner, but her condition deteriorated rapidly. The physicians acted responsibly based on the available information; a computed tomography scan did not show the colon injury. The injury likely occurred after the procedure due to an underlying bowel condition and is a known risk of the procedure. The colostomy can be reversed. Their efforts saved her life.

VERDICT The patient and Dr. E negotiated a $2.3 million settlement. A $62 million New York verdict was returned. The jury found the hospital 40% liable; Dr. A 30% liable; Dr. B 20% liable; and Dr. D 10% liable. Claims were dropped against the resident and Dr. C.

Related article: Oophorectomy or salpingectomy—which makes more sense? William H. Parker, MD (March 2014)

PARENTS REQUESTED EARLIER CESAREAN: CHILD HAS CP
A woman was in labor for 2 full days before her ObGyn performed a cesarean delivery. The child was born with abnormal Apgar scores and had seizures. Imaging studies revealed brain damage. She received a diagnosis of cerebral palsy.

PARENTS’ CLAIM The parents first requested cesarean delivery early on the second day, but the ObGyn allowed labor to progress. When the fetal heart-rate monitor showed signs of fetal distress 3 hours later, the parents made a second request; the ObGyn continued with vaginal delivery. The child was ultimately born by cesarean delivery. Her brain damage was caused by lack of oxygen from failure to perform an earlier cesarean delivery.

DEFENDANTS’ DEFENSE The case was settled during the trial.

VERDICT A $4.25 million Massachusetts settlement was reached.

BLADDER INJURED DURING CESAREAN DELIVERY
A 33-year-old woman gave birth via cesarean delivery performed by her ObGyn. During the procedure, the patient’s bladder was lacerated and the injury was immediately repaired. The patient reports occasional urinary incontinence and pain.

PATIENT’S CLAIM The ObGyn should have anticipated that the bladder would be shifted because of the patient’s previous cesarean delivery.

PHYSICIAN’S DEFENSE The injury is a known risk of the procedure. The patient had developed adhesions that caused the bladder to become displaced. She does not suffer permanent residual effects from the injury.

VERDICT A $125,000 New York verdict was returned.

Related article: 10 practical, evidence-based recommendations for improving maternal outcomes of cesarean delivery. Baha M. Sibai (March 2012)

PARENTS REQUESTED SPECIFIC GENETIC TESTING, BUT CHILD IS BORN WITH RARE CHROMOSOMAL CONDITION: $50M VERDICT
Parents sought prenatal genetic testing to determine if their fetus had a specific genetic condition because the father carries a rare chromosomal abnormality called an unbalanced chromosome translocation. This defect can only be identified if the laboratory is told precisely where to look for the specific translocation; it is not detected on routine prenatal genetic testing. After testing, the parents were told that the fetus did not have the chromosomal abnormality.

The child was born with the condition for which testing was sought, resulting in severe physical and cognitive impairments and multiple physical abnormalities. He will require 24-hour care for life.

PARENTS’ CLAIM Testing failed to identify the condition; the couple had decided to terminate the pregnancy if the child was affected. Due to budget cuts in the maternal-fetal medicine clinic, the medical center borrowed a genetic counselor from another hospital one day a week. The parents told the genetic counselor of the family’s history of the defect and explained that the laboratory’s procedures require the referring center to obtain and share the necessary detailed information with the lab. The lab was apparently notified that the couple had a family history of the defect, but the genetic counselor did not transmit specific information to the lab, and lab personnel did not appropriately follow-up.

DEFENDANTS’ DEFENSE The medical center blamed the laboratory: the lab’s standard procedures state that the lab should call the referring center to obtain the necessary detailed information if it was not provided; the lab employee who handled the specimen did not do so. The lab claimed that the genetic counselor did not transmit the specific information to the lab.

The laboratory disputed the child’s need for 24/7 care, maintaining that he could live in a group home with only occasional nursing care.

VERDICT A $50 million Washington verdict was returned against the medical center and laboratory; each defendant will pay $25 million.

Related article: Noninvasive prenatal testing: Where we are and where we’re going. Lee P. Shulman, MD (Commentary; May 2014)

NECROTIZING FASCIITIS AFTER SURGERY
A 57-year-old woman underwent surgery to repair vaginal vault prolapse, rectocele, and enterocele, performed by her gynecologist. Several days after discharge, the patient returned to the hospital with an infection in her leg that had evolved into necrotizing fasciitis. She underwent five fasciotomies and was hospitalized for 3 weeks.

PATIENT’S CLAIM The gynecologist should have administered prophylactic antibiotics before, during, and after surgery. The patient has massive scarring of her leg.

PHYSICIAN’S DEFENSE The infection was not a result of failing to administer antibiotics. The patient failed to seek timely treatment of symptoms that developed after surgery.

VERDICT A $400,000 New York verdict was returned but reduced because the jury found the patient 49% at fault.

OXYTOCIN BLAMED FOR CHILD’S CP
A mother had bariatric surgery 12 months before becoming pregnant, and she smoked during pregnancy. She developed placental insufficiency and labor was induced shortly after she reached 37 weeks’ gestation.

During delivery, the mother was given oxytocin to increase the frequency and strength of contractions. Nurses repeatedly stopped the oxytocin in response to decelerations in the fetal heart rate, but physicians ordered the oxytocin resumed, even after fetal heart-rate monitoring showed fetal distress.

Three days after birth, the child was transferred to another hospital, and was found to have cerebral palsy and other injuries. At age 5, the child is nonverbal, cannot walk, and requires a feeding tube.

PARENTS’ CLAIM Oxytocin should have been stopped and a cesarean delivery performed when fetal distress was first noted.

DEFENDANTS’ DEFENSE There was no need for cesarean delivery. Apgar scores, blood gases, and fetal presentation indicated that the injury occurred prior to labor.

VERDICT A $6 million Texas settlement was reached during the trial.

Related article: Q: Following cesarean delivery, what is the optimal oxytocin infusion duration to prevent postpartum bleeding? Robert L. Barbieri, MD (Editorial; April 2014)

MOTHER DISCHARGED DESPITE SEVERE ABDOMINAL PAIN
A woman had prenatal care at different locations. Her history included two cesarean deliveries.

Reporting severe abdominal pain, she was taken from a homeless shelter to an ED by ambulance. The mother was uncertain of the fetus’ gestational age; a 4th-year obstetric resident determined by physical examination that the pregnancy was at 36.5 weeks. The resident discussed the case with the attending ObGyn, who said to discharge the mother if her pain was gone. After 11 hours, the mother was returned to the shelter.

The mother returned to the ED 12 hours later. Thirty-five minutes after fetal distress was identified, an emergency cesarean delivery was performed. At birth, the child was found to be at 38 to 39 weeks’ gestation. He received a diagnosis of severe hypoxic ischemic encephalopathy and was transferred to a children’s hospital for brain cooling.

The child lives in a long-term care facility and is dependent on a ventilator and gastronomy tube.

PARENT’S CLAIM The mother should not have been discharged after the first visit. A cesarean delivery should have been performed at that time. The attending ObGyn never saw the mother.

DEFENDANTS’ DEFENSE The mother should have given her correct due date, which was in her prenatal records based on previous ultrasonograpy. The first discharge was proper, as the pain had improved. The homeless shelter should have called an ambulance earlier for the second admission.

VERDICT A $7.5 million California settlement was reached, plus payment of medical expenses exceeding $300,000. 

Timing of child’s injury disputed
Vaginal birth after cesarean (VBAC) had been planned. After reporting to her ObGyn that she was in labor, a mother went to the ED.

During the next few hours, hospital staff called the ObGyn twice to report that fetal monitor strips indicated tachycardia. The ObGyn then spoke to the mother by phone and told her that cesarean delivery was necessary but could wait for him to get to the hospital. After the ObGyn arrived, he removed the fetal heart-rate monitor to prepare the mother’s abdomen; cesarean delivery occurred 15 minutes later.

The child has spastic dystonic quadriplegia and requires 24-hour care.

PARENT’S CLAIM The ObGyn should have come to the hospital and performed cesarean delivery when he was first notified that the fetus was tachycardic. The baby suffered an hypoxic ischemic event in the 15-minute period between when the monitor was removed and birth, causing hypoxic ischemic encephalopathy.

PHYSICIAN’S DEFENSE There was no indication of a need for earlier delivery. The brain injury occurred prior to labor and delivery.

VERDICT The hospital settled for a confidential amount before the trial. An Illinois defense verdict was returned for the ObGyn.

Were mammograms properly interpreted?
After reporting a lump in her breast, a 39-year-old woman underwent mammography in 2008 and 2009. Two different radiologists reported their findings as negative for cancer.

In 2010, the patient was found to have breast cancer. She underwent a mastectomy, chemotherapy, and radiation therapy, and was given a 75%–80% chance of 5-year survival.

PATIENT’S CLAIM The ObGyn failed to follow-up on the patient’s reports of a breast lump. The radiologists did not correctly interpret the 2008 and 2009 mammograms. If cancer had been detected earlier, treatment would have been less extreme.

PHYSICIANS’ DEFENSE The ObGyn claimed that he would have felt a lump if it was present. The first radiologist claimed that the 2008 mammography report was correct, noting that the patient’s cancer was a lobular carcinoma that does not always show on mammography or in patients with dense breasts, which this patient has. 

VERDICT A directed verdict was granted to the radiologist who interpreted the 2009 mammography, as the results were lost. An Ohio defense verdict was returned for the ObGyn and the other radiologist.

Related article: Does screening mammography save lives? Janelle Yates, Senior Editor (April 2014)

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

TELL US WHAT YOU THINK! Drop us a line and let us know what you think about this or other current articles, which topics you'd like to see covered in future issues, and what challenges you face in daily practice.
Tell us what you think by emailing us at: [email protected] Please include your name, city and state.
Stay in touch! Your feedback is important to us!

Woman loses both legs after salpingectomy: $64.3M award
Due to an ectopic pregnancy, a 29-year-old woman underwent laparoscopic salpingectomy in October 2009. A resident supervised by Dr. A (gynecologist) performed the surgery. Although the patient reported abdominal pain and was febrile, Dr. B (gynecologist) discharged her on postsurgical day 2.

The next day, she returned to the emergency department (ED) with abdominal swelling and pain. Dr. C (ED physician), Dr. D (gynecologist), and Dr. E (general surgeon) examined her. Dr. D began conservative treatment for bowel obstruction. Two days later she was in septic shock. Dr. E repaired a 5-mm injury to the sigmoid colon and created a colostomy. The patient was placed in a medically induced coma for 3 weeks. She experienced cardiac arrest 3 times during her 73-day ICU stay. She  underwent skin grafts, and suffered hearing loss as a result of antibiotic treatment. Due to gangrene, both legs were amputated below the knee.

At the trial’s conclusion in January 2014, the colostomy had not been reversed. She has difficulty caring for her daughter and has not worked since the initial operation.

PATIENT’S CLAIM The resident, who injured the colon and did not detect the injury during surgery, was improperly supervised by Dr. A. Hospital staff did not communicate the patient’s problem reports to the physicians. Dr. B should not have discharged her after surgery; based on her reported symptoms, additional testing was warranted. Drs. C, D, and E did not react to the patient’s pain reports in a timely manner, nor treat the resulting sepsis aggressively enough, leading to gangrene.

DEFENDANTS’ DEFENSE The patient’s colon injury was diagnosed and treated in a timely manner, but her condition deteriorated rapidly. The physicians acted responsibly based on the available information; a computed tomography scan did not show the colon injury. The injury likely occurred after the procedure due to an underlying bowel condition and is a known risk of the procedure. The colostomy can be reversed. Their efforts saved her life.

VERDICT The patient and Dr. E negotiated a $2.3 million settlement. A $62 million New York verdict was returned. The jury found the hospital 40% liable; Dr. A 30% liable; Dr. B 20% liable; and Dr. D 10% liable. Claims were dropped against the resident and Dr. C.

Related article: Oophorectomy or salpingectomy—which makes more sense? William H. Parker, MD (March 2014)

PARENTS REQUESTED EARLIER CESAREAN: CHILD HAS CP
A woman was in labor for 2 full days before her ObGyn performed a cesarean delivery. The child was born with abnormal Apgar scores and had seizures. Imaging studies revealed brain damage. She received a diagnosis of cerebral palsy.

PARENTS’ CLAIM The parents first requested cesarean delivery early on the second day, but the ObGyn allowed labor to progress. When the fetal heart-rate monitor showed signs of fetal distress 3 hours later, the parents made a second request; the ObGyn continued with vaginal delivery. The child was ultimately born by cesarean delivery. Her brain damage was caused by lack of oxygen from failure to perform an earlier cesarean delivery.

DEFENDANTS’ DEFENSE The case was settled during the trial.

VERDICT A $4.25 million Massachusetts settlement was reached.

BLADDER INJURED DURING CESAREAN DELIVERY
A 33-year-old woman gave birth via cesarean delivery performed by her ObGyn. During the procedure, the patient’s bladder was lacerated and the injury was immediately repaired. The patient reports occasional urinary incontinence and pain.

PATIENT’S CLAIM The ObGyn should have anticipated that the bladder would be shifted because of the patient’s previous cesarean delivery.

PHYSICIAN’S DEFENSE The injury is a known risk of the procedure. The patient had developed adhesions that caused the bladder to become displaced. She does not suffer permanent residual effects from the injury.

VERDICT A $125,000 New York verdict was returned.

Related article: 10 practical, evidence-based recommendations for improving maternal outcomes of cesarean delivery. Baha M. Sibai (March 2012)

PARENTS REQUESTED SPECIFIC GENETIC TESTING, BUT CHILD IS BORN WITH RARE CHROMOSOMAL CONDITION: $50M VERDICT
Parents sought prenatal genetic testing to determine if their fetus had a specific genetic condition because the father carries a rare chromosomal abnormality called an unbalanced chromosome translocation. This defect can only be identified if the laboratory is told precisely where to look for the specific translocation; it is not detected on routine prenatal genetic testing. After testing, the parents were told that the fetus did not have the chromosomal abnormality.

The child was born with the condition for which testing was sought, resulting in severe physical and cognitive impairments and multiple physical abnormalities. He will require 24-hour care for life.

PARENTS’ CLAIM Testing failed to identify the condition; the couple had decided to terminate the pregnancy if the child was affected. Due to budget cuts in the maternal-fetal medicine clinic, the medical center borrowed a genetic counselor from another hospital one day a week. The parents told the genetic counselor of the family’s history of the defect and explained that the laboratory’s procedures require the referring center to obtain and share the necessary detailed information with the lab. The lab was apparently notified that the couple had a family history of the defect, but the genetic counselor did not transmit specific information to the lab, and lab personnel did not appropriately follow-up.

DEFENDANTS’ DEFENSE The medical center blamed the laboratory: the lab’s standard procedures state that the lab should call the referring center to obtain the necessary detailed information if it was not provided; the lab employee who handled the specimen did not do so. The lab claimed that the genetic counselor did not transmit the specific information to the lab.

The laboratory disputed the child’s need for 24/7 care, maintaining that he could live in a group home with only occasional nursing care.

VERDICT A $50 million Washington verdict was returned against the medical center and laboratory; each defendant will pay $25 million.

Related article: Noninvasive prenatal testing: Where we are and where we’re going. Lee P. Shulman, MD (Commentary; May 2014)

NECROTIZING FASCIITIS AFTER SURGERY
A 57-year-old woman underwent surgery to repair vaginal vault prolapse, rectocele, and enterocele, performed by her gynecologist. Several days after discharge, the patient returned to the hospital with an infection in her leg that had evolved into necrotizing fasciitis. She underwent five fasciotomies and was hospitalized for 3 weeks.

PATIENT’S CLAIM The gynecologist should have administered prophylactic antibiotics before, during, and after surgery. The patient has massive scarring of her leg.

PHYSICIAN’S DEFENSE The infection was not a result of failing to administer antibiotics. The patient failed to seek timely treatment of symptoms that developed after surgery.

VERDICT A $400,000 New York verdict was returned but reduced because the jury found the patient 49% at fault.

OXYTOCIN BLAMED FOR CHILD’S CP
A mother had bariatric surgery 12 months before becoming pregnant, and she smoked during pregnancy. She developed placental insufficiency and labor was induced shortly after she reached 37 weeks’ gestation.

During delivery, the mother was given oxytocin to increase the frequency and strength of contractions. Nurses repeatedly stopped the oxytocin in response to decelerations in the fetal heart rate, but physicians ordered the oxytocin resumed, even after fetal heart-rate monitoring showed fetal distress.

Three days after birth, the child was transferred to another hospital, and was found to have cerebral palsy and other injuries. At age 5, the child is nonverbal, cannot walk, and requires a feeding tube.

PARENTS’ CLAIM Oxytocin should have been stopped and a cesarean delivery performed when fetal distress was first noted.

DEFENDANTS’ DEFENSE There was no need for cesarean delivery. Apgar scores, blood gases, and fetal presentation indicated that the injury occurred prior to labor.

VERDICT A $6 million Texas settlement was reached during the trial.

Related article: Q: Following cesarean delivery, what is the optimal oxytocin infusion duration to prevent postpartum bleeding? Robert L. Barbieri, MD (Editorial; April 2014)

MOTHER DISCHARGED DESPITE SEVERE ABDOMINAL PAIN
A woman had prenatal care at different locations. Her history included two cesarean deliveries.

Reporting severe abdominal pain, she was taken from a homeless shelter to an ED by ambulance. The mother was uncertain of the fetus’ gestational age; a 4th-year obstetric resident determined by physical examination that the pregnancy was at 36.5 weeks. The resident discussed the case with the attending ObGyn, who said to discharge the mother if her pain was gone. After 11 hours, the mother was returned to the shelter.

The mother returned to the ED 12 hours later. Thirty-five minutes after fetal distress was identified, an emergency cesarean delivery was performed. At birth, the child was found to be at 38 to 39 weeks’ gestation. He received a diagnosis of severe hypoxic ischemic encephalopathy and was transferred to a children’s hospital for brain cooling.

The child lives in a long-term care facility and is dependent on a ventilator and gastronomy tube.

PARENT’S CLAIM The mother should not have been discharged after the first visit. A cesarean delivery should have been performed at that time. The attending ObGyn never saw the mother.

DEFENDANTS’ DEFENSE The mother should have given her correct due date, which was in her prenatal records based on previous ultrasonograpy. The first discharge was proper, as the pain had improved. The homeless shelter should have called an ambulance earlier for the second admission.

VERDICT A $7.5 million California settlement was reached, plus payment of medical expenses exceeding $300,000. 

Timing of child’s injury disputed
Vaginal birth after cesarean (VBAC) had been planned. After reporting to her ObGyn that she was in labor, a mother went to the ED.

During the next few hours, hospital staff called the ObGyn twice to report that fetal monitor strips indicated tachycardia. The ObGyn then spoke to the mother by phone and told her that cesarean delivery was necessary but could wait for him to get to the hospital. After the ObGyn arrived, he removed the fetal heart-rate monitor to prepare the mother’s abdomen; cesarean delivery occurred 15 minutes later.

The child has spastic dystonic quadriplegia and requires 24-hour care.

PARENT’S CLAIM The ObGyn should have come to the hospital and performed cesarean delivery when he was first notified that the fetus was tachycardic. The baby suffered an hypoxic ischemic event in the 15-minute period between when the monitor was removed and birth, causing hypoxic ischemic encephalopathy.

PHYSICIAN’S DEFENSE There was no indication of a need for earlier delivery. The brain injury occurred prior to labor and delivery.

VERDICT The hospital settled for a confidential amount before the trial. An Illinois defense verdict was returned for the ObGyn.

Were mammograms properly interpreted?
After reporting a lump in her breast, a 39-year-old woman underwent mammography in 2008 and 2009. Two different radiologists reported their findings as negative for cancer.

In 2010, the patient was found to have breast cancer. She underwent a mastectomy, chemotherapy, and radiation therapy, and was given a 75%–80% chance of 5-year survival.

PATIENT’S CLAIM The ObGyn failed to follow-up on the patient’s reports of a breast lump. The radiologists did not correctly interpret the 2008 and 2009 mammograms. If cancer had been detected earlier, treatment would have been less extreme.

PHYSICIANS’ DEFENSE The ObGyn claimed that he would have felt a lump if it was present. The first radiologist claimed that the 2008 mammography report was correct, noting that the patient’s cancer was a lobular carcinoma that does not always show on mammography or in patients with dense breasts, which this patient has. 

VERDICT A directed verdict was granted to the radiologist who interpreted the 2009 mammography, as the results were lost. An Ohio defense verdict was returned for the ObGyn and the other radiologist.

Related article: Does screening mammography save lives? Janelle Yates, Senior Editor (April 2014)

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

TELL US WHAT YOU THINK! Drop us a line and let us know what you think about this or other current articles, which topics you'd like to see covered in future issues, and what challenges you face in daily practice.
Tell us what you think by emailing us at: [email protected] Please include your name, city and state.
Stay in touch! Your feedback is important to us!

Woman loses both legs after salpingectomy: $64.3M award
Due to an ectopic pregnancy, a 29-year-old woman underwent laparoscopic salpingectomy in October 2009. A resident supervised by Dr. A (gynecologist) performed the surgery. Although the patient reported abdominal pain and was febrile, Dr. B (gynecologist) discharged her on postsurgical day 2.

The next day, she returned to the emergency department (ED) with abdominal swelling and pain. Dr. C (ED physician), Dr. D (gynecologist), and Dr. E (general surgeon) examined her. Dr. D began conservative treatment for bowel obstruction. Two days later she was in septic shock. Dr. E repaired a 5-mm injury to the sigmoid colon and created a colostomy. The patient was placed in a medically induced coma for 3 weeks. She experienced cardiac arrest 3 times during her 73-day ICU stay. She  underwent skin grafts, and suffered hearing loss as a result of antibiotic treatment. Due to gangrene, both legs were amputated below the knee.

At the trial’s conclusion in January 2014, the colostomy had not been reversed. She has difficulty caring for her daughter and has not worked since the initial operation.

PATIENT’S CLAIM The resident, who injured the colon and did not detect the injury during surgery, was improperly supervised by Dr. A. Hospital staff did not communicate the patient’s problem reports to the physicians. Dr. B should not have discharged her after surgery; based on her reported symptoms, additional testing was warranted. Drs. C, D, and E did not react to the patient’s pain reports in a timely manner, nor treat the resulting sepsis aggressively enough, leading to gangrene.

DEFENDANTS’ DEFENSE The patient’s colon injury was diagnosed and treated in a timely manner, but her condition deteriorated rapidly. The physicians acted responsibly based on the available information; a computed tomography scan did not show the colon injury. The injury likely occurred after the procedure due to an underlying bowel condition and is a known risk of the procedure. The colostomy can be reversed. Their efforts saved her life.

VERDICT The patient and Dr. E negotiated a $2.3 million settlement. A $62 million New York verdict was returned. The jury found the hospital 40% liable; Dr. A 30% liable; Dr. B 20% liable; and Dr. D 10% liable. Claims were dropped against the resident and Dr. C.

Related article: Oophorectomy or salpingectomy—which makes more sense? William H. Parker, MD (March 2014)

PARENTS REQUESTED EARLIER CESAREAN: CHILD HAS CP
A woman was in labor for 2 full days before her ObGyn performed a cesarean delivery. The child was born with abnormal Apgar scores and had seizures. Imaging studies revealed brain damage. She received a diagnosis of cerebral palsy.

PARENTS’ CLAIM The parents first requested cesarean delivery early on the second day, but the ObGyn allowed labor to progress. When the fetal heart-rate monitor showed signs of fetal distress 3 hours later, the parents made a second request; the ObGyn continued with vaginal delivery. The child was ultimately born by cesarean delivery. Her brain damage was caused by lack of oxygen from failure to perform an earlier cesarean delivery.

DEFENDANTS’ DEFENSE The case was settled during the trial.

VERDICT A $4.25 million Massachusetts settlement was reached.

BLADDER INJURED DURING CESAREAN DELIVERY
A 33-year-old woman gave birth via cesarean delivery performed by her ObGyn. During the procedure, the patient’s bladder was lacerated and the injury was immediately repaired. The patient reports occasional urinary incontinence and pain.

PATIENT’S CLAIM The ObGyn should have anticipated that the bladder would be shifted because of the patient’s previous cesarean delivery.

PHYSICIAN’S DEFENSE The injury is a known risk of the procedure. The patient had developed adhesions that caused the bladder to become displaced. She does not suffer permanent residual effects from the injury.

VERDICT A $125,000 New York verdict was returned.

Related article: 10 practical, evidence-based recommendations for improving maternal outcomes of cesarean delivery. Baha M. Sibai (March 2012)

PARENTS REQUESTED SPECIFIC GENETIC TESTING, BUT CHILD IS BORN WITH RARE CHROMOSOMAL CONDITION: $50M VERDICT
Parents sought prenatal genetic testing to determine if their fetus had a specific genetic condition because the father carries a rare chromosomal abnormality called an unbalanced chromosome translocation. This defect can only be identified if the laboratory is told precisely where to look for the specific translocation; it is not detected on routine prenatal genetic testing. After testing, the parents were told that the fetus did not have the chromosomal abnormality.

The child was born with the condition for which testing was sought, resulting in severe physical and cognitive impairments and multiple physical abnormalities. He will require 24-hour care for life.

PARENTS’ CLAIM Testing failed to identify the condition; the couple had decided to terminate the pregnancy if the child was affected. Due to budget cuts in the maternal-fetal medicine clinic, the medical center borrowed a genetic counselor from another hospital one day a week. The parents told the genetic counselor of the family’s history of the defect and explained that the laboratory’s procedures require the referring center to obtain and share the necessary detailed information with the lab. The lab was apparently notified that the couple had a family history of the defect, but the genetic counselor did not transmit specific information to the lab, and lab personnel did not appropriately follow-up.

DEFENDANTS’ DEFENSE The medical center blamed the laboratory: the lab’s standard procedures state that the lab should call the referring center to obtain the necessary detailed information if it was not provided; the lab employee who handled the specimen did not do so. The lab claimed that the genetic counselor did not transmit the specific information to the lab.

The laboratory disputed the child’s need for 24/7 care, maintaining that he could live in a group home with only occasional nursing care.

VERDICT A $50 million Washington verdict was returned against the medical center and laboratory; each defendant will pay $25 million.

Related article: Noninvasive prenatal testing: Where we are and where we’re going. Lee P. Shulman, MD (Commentary; May 2014)

NECROTIZING FASCIITIS AFTER SURGERY
A 57-year-old woman underwent surgery to repair vaginal vault prolapse, rectocele, and enterocele, performed by her gynecologist. Several days after discharge, the patient returned to the hospital with an infection in her leg that had evolved into necrotizing fasciitis. She underwent five fasciotomies and was hospitalized for 3 weeks.

PATIENT’S CLAIM The gynecologist should have administered prophylactic antibiotics before, during, and after surgery. The patient has massive scarring of her leg.

PHYSICIAN’S DEFENSE The infection was not a result of failing to administer antibiotics. The patient failed to seek timely treatment of symptoms that developed after surgery.

VERDICT A $400,000 New York verdict was returned but reduced because the jury found the patient 49% at fault.

OXYTOCIN BLAMED FOR CHILD’S CP
A mother had bariatric surgery 12 months before becoming pregnant, and she smoked during pregnancy. She developed placental insufficiency and labor was induced shortly after she reached 37 weeks’ gestation.

During delivery, the mother was given oxytocin to increase the frequency and strength of contractions. Nurses repeatedly stopped the oxytocin in response to decelerations in the fetal heart rate, but physicians ordered the oxytocin resumed, even after fetal heart-rate monitoring showed fetal distress.

Three days after birth, the child was transferred to another hospital, and was found to have cerebral palsy and other injuries. At age 5, the child is nonverbal, cannot walk, and requires a feeding tube.

PARENTS’ CLAIM Oxytocin should have been stopped and a cesarean delivery performed when fetal distress was first noted.

DEFENDANTS’ DEFENSE There was no need for cesarean delivery. Apgar scores, blood gases, and fetal presentation indicated that the injury occurred prior to labor.

VERDICT A $6 million Texas settlement was reached during the trial.

Related article: Q: Following cesarean delivery, what is the optimal oxytocin infusion duration to prevent postpartum bleeding? Robert L. Barbieri, MD (Editorial; April 2014)

MOTHER DISCHARGED DESPITE SEVERE ABDOMINAL PAIN
A woman had prenatal care at different locations. Her history included two cesarean deliveries.

Reporting severe abdominal pain, she was taken from a homeless shelter to an ED by ambulance. The mother was uncertain of the fetus’ gestational age; a 4th-year obstetric resident determined by physical examination that the pregnancy was at 36.5 weeks. The resident discussed the case with the attending ObGyn, who said to discharge the mother if her pain was gone. After 11 hours, the mother was returned to the shelter.

The mother returned to the ED 12 hours later. Thirty-five minutes after fetal distress was identified, an emergency cesarean delivery was performed. At birth, the child was found to be at 38 to 39 weeks’ gestation. He received a diagnosis of severe hypoxic ischemic encephalopathy and was transferred to a children’s hospital for brain cooling.

The child lives in a long-term care facility and is dependent on a ventilator and gastronomy tube.

PARENT’S CLAIM The mother should not have been discharged after the first visit. A cesarean delivery should have been performed at that time. The attending ObGyn never saw the mother.

DEFENDANTS’ DEFENSE The mother should have given her correct due date, which was in her prenatal records based on previous ultrasonograpy. The first discharge was proper, as the pain had improved. The homeless shelter should have called an ambulance earlier for the second admission.

VERDICT A $7.5 million California settlement was reached, plus payment of medical expenses exceeding $300,000. 

Timing of child’s injury disputed
Vaginal birth after cesarean (VBAC) had been planned. After reporting to her ObGyn that she was in labor, a mother went to the ED.

During the next few hours, hospital staff called the ObGyn twice to report that fetal monitor strips indicated tachycardia. The ObGyn then spoke to the mother by phone and told her that cesarean delivery was necessary but could wait for him to get to the hospital. After the ObGyn arrived, he removed the fetal heart-rate monitor to prepare the mother’s abdomen; cesarean delivery occurred 15 minutes later.

The child has spastic dystonic quadriplegia and requires 24-hour care.

PARENT’S CLAIM The ObGyn should have come to the hospital and performed cesarean delivery when he was first notified that the fetus was tachycardic. The baby suffered an hypoxic ischemic event in the 15-minute period between when the monitor was removed and birth, causing hypoxic ischemic encephalopathy.

PHYSICIAN’S DEFENSE There was no indication of a need for earlier delivery. The brain injury occurred prior to labor and delivery.

VERDICT The hospital settled for a confidential amount before the trial. An Illinois defense verdict was returned for the ObGyn.

Were mammograms properly interpreted?
After reporting a lump in her breast, a 39-year-old woman underwent mammography in 2008 and 2009. Two different radiologists reported their findings as negative for cancer.

In 2010, the patient was found to have breast cancer. She underwent a mastectomy, chemotherapy, and radiation therapy, and was given a 75%–80% chance of 5-year survival.

PATIENT’S CLAIM The ObGyn failed to follow-up on the patient’s reports of a breast lump. The radiologists did not correctly interpret the 2008 and 2009 mammograms. If cancer had been detected earlier, treatment would have been less extreme.

PHYSICIANS’ DEFENSE The ObGyn claimed that he would have felt a lump if it was present. The first radiologist claimed that the 2008 mammography report was correct, noting that the patient’s cancer was a lobular carcinoma that does not always show on mammography or in patients with dense breasts, which this patient has. 

VERDICT A directed verdict was granted to the radiologist who interpreted the 2009 mammography, as the results were lost. An Ohio defense verdict was returned for the ObGyn and the other radiologist.

Related article: Does screening mammography save lives? Janelle Yates, Senior Editor (April 2014)

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

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As the economy continues its slow and uneven recovery, economic crime is on the rise, according to many law enforcement officials around the country.

Despite the current bull market, unemployment remains high and money remains tight.

Tight money increases embezzlement temptations, so this is an excellent time to review your bookkeeping procedures and remove any obvious opportunities for theft by your employees.

Embezzlement is more common than you might think. Discovering it is often easy, because most embezzlers are not particularly skillful at what they do, or adept at covering their tracks. But it often goes undetected, sometimes for years, simply because no one is looking for it.

The experience of a friend of mine was all too typical: His bookkeeper wrote sizable checks to herself, disguising them in the ledger as payments to vendors commonly used by his practice. Since she also balanced the checkbook, she got away with it for many months.

"It wasn’t at all clever," he told me. "And I’m somewhat chagrined to admit that it happened to me."

Is it happening to you, too? You won’t know unless you look.

Detecting fraud is an inexact science; there is no textbook approach that one can follow, but a few simple measures can uncover or prevent a large percentage of dishonest behavior:

• Hire honest employees. Check applicants’ references; find out if they are really as good as they look on paper. And for a few dollars, you can screen prospective employees on one of several public information websites to find out whether they have criminal records, or have been sued (or are suing others). My columns on hiring and background checks are in the archives at edermatologynews.com.

• Minimize opportunities for dishonesty. Theft and embezzlement are often products of opportunity, and there are many ways to minimize those opportunities. No one person should be in charge of the entire bookkeeping process. The person who enters charges should not be the one who enters payments. The employee who writes the checks should not balance the checkbook, and so on. Internal audits should occur on a regular basis, and all employees should know that. Your accountant can help with this.

• Reconcile receipts and cash daily. The most common form of embezzlement is simply employees taking cash out of the till. In a typical scenario, a patient pays a $15 copay in cash; the receptionist records the payment as $5 and pockets the rest. Make sure a receipt is generated for every cash transaction, and that someone other than the person accepting cash reconciles the receipts and the cash daily.

• Insist on separate accounting duties. Another common scam – the one to which my friend fell victim – is false invoices. You think you are paying for supplies and services, but the money is going to an employee. Once again, separation of duties is the key to prevention. One employee should enter invoices into the data system, another should issue the check or make the electronic transfer, and a third should match invoices to goods and services received.

• Verify expense reports. False expense reports are another common form of fraud. When an employee asks for reimbursement of expenses, make sure the expenses are real.

• Safeguard your computers. Today’s technology has made embezzlement easier and more tempting. Data are usually concentrated in one place, accounts can be accessed from remote workstations or off-premises servers, and a paper trail is often eliminated. Your computer vendor should be aware of this, and should have safeguards built into your system. Ask about them.

• Look for red flags. Do you have an employee who refuses to take vacations, because someone else will have to look at the books? Does someone insist on approving or entering expenses that are another employee’s responsibility? Is one employee suddenly living beyond his or her means?

• Consider bonding your employees. The mere knowledge that your staff is bonded will frighten off most dishonest applicants, and you will be assured of some measure of recovery should your safeguards fail.

Most embezzlement is not ingenious, or even particularly well concealed. It often sits in full view of physicians who are convinced that theft from within cannot happen to them. It can, and it does, but a little awareness can go a long way toward keeping it from happening to you.

Dr. Eastern practices dermatology and dermatologic surgery in Belleville, N.J. He holds teaching positions at several hospitals and has delivered more than 500 academic speaking presentations. He is the author of numerous articles and textbook chapters, and is a long-time monthly columnist for Skin & Allergy News.

As the economy continues its slow and uneven recovery, economic crime is on the rise, according to many law enforcement officials around the country.

Despite the current bull market, unemployment remains high and money remains tight.

Tight money increases embezzlement temptations, so this is an excellent time to review your bookkeeping procedures and remove any obvious opportunities for theft by your employees.

Embezzlement is more common than you might think. Discovering it is often easy, because most embezzlers are not particularly skillful at what they do, or adept at covering their tracks. But it often goes undetected, sometimes for years, simply because no one is looking for it.

The experience of a friend of mine was all too typical: His bookkeeper wrote sizable checks to herself, disguising them in the ledger as payments to vendors commonly used by his practice. Since she also balanced the checkbook, she got away with it for many months.

"It wasn’t at all clever," he told me. "And I’m somewhat chagrined to admit that it happened to me."

Is it happening to you, too? You won’t know unless you look.

Detecting fraud is an inexact science; there is no textbook approach that one can follow, but a few simple measures can uncover or prevent a large percentage of dishonest behavior:

• Hire honest employees. Check applicants’ references; find out if they are really as good as they look on paper. And for a few dollars, you can screen prospective employees on one of several public information websites to find out whether they have criminal records, or have been sued (or are suing others). My columns on hiring and background checks are in the archives at edermatologynews.com.

• Minimize opportunities for dishonesty. Theft and embezzlement are often products of opportunity, and there are many ways to minimize those opportunities. No one person should be in charge of the entire bookkeeping process. The person who enters charges should not be the one who enters payments. The employee who writes the checks should not balance the checkbook, and so on. Internal audits should occur on a regular basis, and all employees should know that. Your accountant can help with this.

• Reconcile receipts and cash daily. The most common form of embezzlement is simply employees taking cash out of the till. In a typical scenario, a patient pays a $15 copay in cash; the receptionist records the payment as $5 and pockets the rest. Make sure a receipt is generated for every cash transaction, and that someone other than the person accepting cash reconciles the receipts and the cash daily.

• Insist on separate accounting duties. Another common scam – the one to which my friend fell victim – is false invoices. You think you are paying for supplies and services, but the money is going to an employee. Once again, separation of duties is the key to prevention. One employee should enter invoices into the data system, another should issue the check or make the electronic transfer, and a third should match invoices to goods and services received.

• Verify expense reports. False expense reports are another common form of fraud. When an employee asks for reimbursement of expenses, make sure the expenses are real.

• Safeguard your computers. Today’s technology has made embezzlement easier and more tempting. Data are usually concentrated in one place, accounts can be accessed from remote workstations or off-premises servers, and a paper trail is often eliminated. Your computer vendor should be aware of this, and should have safeguards built into your system. Ask about them.

• Look for red flags. Do you have an employee who refuses to take vacations, because someone else will have to look at the books? Does someone insist on approving or entering expenses that are another employee’s responsibility? Is one employee suddenly living beyond his or her means?

• Consider bonding your employees. The mere knowledge that your staff is bonded will frighten off most dishonest applicants, and you will be assured of some measure of recovery should your safeguards fail.

Most embezzlement is not ingenious, or even particularly well concealed. It often sits in full view of physicians who are convinced that theft from within cannot happen to them. It can, and it does, but a little awareness can go a long way toward keeping it from happening to you.

Dr. Eastern practices dermatology and dermatologic surgery in Belleville, N.J. He holds teaching positions at several hospitals and has delivered more than 500 academic speaking presentations. He is the author of numerous articles and textbook chapters, and is a long-time monthly columnist for Skin & Allergy News.

As the economy continues its slow and uneven recovery, economic crime is on the rise, according to many law enforcement officials around the country.

Despite the current bull market, unemployment remains high and money remains tight.

Tight money increases embezzlement temptations, so this is an excellent time to review your bookkeeping procedures and remove any obvious opportunities for theft by your employees.

Embezzlement is more common than you might think. Discovering it is often easy, because most embezzlers are not particularly skillful at what they do, or adept at covering their tracks. But it often goes undetected, sometimes for years, simply because no one is looking for it.

The experience of a friend of mine was all too typical: His bookkeeper wrote sizable checks to herself, disguising them in the ledger as payments to vendors commonly used by his practice. Since she also balanced the checkbook, she got away with it for many months.

"It wasn’t at all clever," he told me. "And I’m somewhat chagrined to admit that it happened to me."

Is it happening to you, too? You won’t know unless you look.

Detecting fraud is an inexact science; there is no textbook approach that one can follow, but a few simple measures can uncover or prevent a large percentage of dishonest behavior:

• Hire honest employees. Check applicants’ references; find out if they are really as good as they look on paper. And for a few dollars, you can screen prospective employees on one of several public information websites to find out whether they have criminal records, or have been sued (or are suing others). My columns on hiring and background checks are in the archives at edermatologynews.com.

• Minimize opportunities for dishonesty. Theft and embezzlement are often products of opportunity, and there are many ways to minimize those opportunities. No one person should be in charge of the entire bookkeeping process. The person who enters charges should not be the one who enters payments. The employee who writes the checks should not balance the checkbook, and so on. Internal audits should occur on a regular basis, and all employees should know that. Your accountant can help with this.

• Reconcile receipts and cash daily. The most common form of embezzlement is simply employees taking cash out of the till. In a typical scenario, a patient pays a $15 copay in cash; the receptionist records the payment as $5 and pockets the rest. Make sure a receipt is generated for every cash transaction, and that someone other than the person accepting cash reconciles the receipts and the cash daily.

• Insist on separate accounting duties. Another common scam – the one to which my friend fell victim – is false invoices. You think you are paying for supplies and services, but the money is going to an employee. Once again, separation of duties is the key to prevention. One employee should enter invoices into the data system, another should issue the check or make the electronic transfer, and a third should match invoices to goods and services received.

• Verify expense reports. False expense reports are another common form of fraud. When an employee asks for reimbursement of expenses, make sure the expenses are real.

• Safeguard your computers. Today’s technology has made embezzlement easier and more tempting. Data are usually concentrated in one place, accounts can be accessed from remote workstations or off-premises servers, and a paper trail is often eliminated. Your computer vendor should be aware of this, and should have safeguards built into your system. Ask about them.

• Look for red flags. Do you have an employee who refuses to take vacations, because someone else will have to look at the books? Does someone insist on approving or entering expenses that are another employee’s responsibility? Is one employee suddenly living beyond his or her means?

• Consider bonding your employees. The mere knowledge that your staff is bonded will frighten off most dishonest applicants, and you will be assured of some measure of recovery should your safeguards fail.

Most embezzlement is not ingenious, or even particularly well concealed. It often sits in full view of physicians who are convinced that theft from within cannot happen to them. It can, and it does, but a little awareness can go a long way toward keeping it from happening to you.

Dr. Eastern practices dermatology and dermatologic surgery in Belleville, N.J. He holds teaching positions at several hospitals and has delivered more than 500 academic speaking presentations. He is the author of numerous articles and textbook chapters, and is a long-time monthly columnist for Skin & Allergy News.

The changes launched by the Affordable Care Act are upon us and have created considerable trepidation among many in healthcare, particularly our chief financial officers (CFOs). The CFOs’ core responsibilities include financial planning, contracting, and setting budgets. Although finance teams and clinical leaders sometimes feel like they are speaking different languages—and, in fact, many physicians couldn’t pick their hospital’s CFO out of a police lineup—successful healthcare systems bridge that gap, enabling clinical and finance leaders to work together toward common goals.

It’s easy for us doctor types to be leery of our hospital’s financial team. If you’ve ever been in direct conversation with your CFO, you may have found the discussion was packed with terms like “EBIDA,” “capital allocation,” and “operating margin,” and seemed to imply that the organization is prioritizing its bond rating over its composite PSI [patient safety indicators] performance. But the truth is that our finance teams are frustrated, too. In fact, they are more than frustrated—they are scared.

They really haven’t been sleeping well lately. They’d feel better if doctors could try to see the world that they see. A CFO’s core responsibility is ensuring a responsible, long-range financial plan that meets the needs of their hospital stakeholders—to paraphrase Tom Wolfe paraphrasing astronaut Gus Grissom, “no bucks, no Buck Rogers”—and that responsibility got a lot harder in 2014. By understanding their perspective, we clinicians should be able to take actions that result in better care of our patients today—and ensure a sustainable hospital that can take care of patients tomorrow. So that we can better empathize with our green-visored colleagues, here are a few of the thoughts going through their heads as they toss and turn at 3 a.m.

Change Is All Around

There are many urgent pressures on hospital, physician, and healthcare revenues. Keep in mind that a hospital’s costs in terms of pharmaceuticals, equipment, and labor (the average hospital has nearly 60% of its cost in labor) are not really going down to offset that revenue loss. While we’ve become uncomfortably familiar with RAC audits, value-based purchasing, the sustainable growth rate, and sequestration, I’d suggest that these revenue challenges pale in comparison to the insomnia created by the rapid rise of healthcare consumerism. Lost, or at least buried, in the stories about ACA politics, coverage of the uninsured, website malfunctions, and dropped insurance plans is the fact that the nature of insurance is changing.

Although offerings like medical savings accounts and high-deductible plans have been around for years, they are increasingly mainstream, because the plans offered through the insurance exchanges, which have surpassed the seven million mark in enrollment as of the time of this writing, all carry substantial patient commitments. The great majority of these plans—81% through February—are either “bronze” or “silver” level—and keep in mind that the average “gold” plan, in covering 80% of anticipated expenses, leaves patients with higher commitments than most large-employer group plans probably do. From that standpoint, they require patients, doctors, and hospitals to manage healthcare differently than they have in the past: We have to be mindful that patients are paying more of the “first dollar.”

The problem, from a CFO’s perspective, is at least twofold: First, a lot of patients don’t pay the portion of their bill for which they are responsible. Many doctors, hospitals, and healthcare systems are moving toward more assertive and up-front collections for non-emergency care; unfortunately, at best, we don’t do a very good job and, at worst, we create an uncomfortable space where we either channel the practices of collection agencies or leave much-needed funds on the table. As the deductibles, co-pays, and co-insurance obligations rise, so do the uncollected accounts. Our advocacy for patients increasingly requires us to be better stewards of their resources.

The second insomnia-inducing aspect of consumerism is transparency of pricing. As the exchanges move to create a “Priceline.com”-like approach to selecting an insurance plan, a similar transformation is occurring in how payers—and, with the spread of plans with higher patient obligations, patients themselves—are looking at how we set prices for everything from MRIs and laboratory services to hospitalization and physician charges. While we as individuals are used to price transparency in purchasing consumer goods, the third-party payment system in healthcare has insulated us, and our hospitals, from the consequences of the market system. (Please note, dear reader: I’m not defending either the past practices or current policy. I’m simply diagnosing why your CFO has black circles under his or her eyes.)

So, prices are increasingly published and available for comparison shopping by both insurers and individuals with those high deductibles or co-insurance amounts. As charges hit their pocketbooks, there is good reason to believe that patients will be “brand loyal” only to the point where they stop appreciating value. Systems with a reliable advantage in pricing (think: academic medical centers) run a great risk of losing business quickly if they cannot demonstrate value for those prices. Hospital-based physicians have been in the position of being the “translators” of value-based care—by always advocating for measurably better care, we help both our patients and our organizations.

Variation in Care

Perhaps most befuddling to our CFO friends are the variations in costs, outcomes, and clinical processes that seemingly similar patients with seemingly similar problems incur. Wide variations might occur based on just about any parameter, from the name of the attending physician to the day of the week of admission. Of course, at times, this variation could be explainable by, say, clinically relevant features that are simply not adjusted for, or the absence of literature to guide decisions. But, all too often, no reasonable explanation exists, and underneath that is a simmering concern that wide variations reflect failure to adhere to known guidelines, uneven distribution of resources, and “waste” deeply embedded in the healthcare value stream.

Less widely understood to clinicians is that, from the CFO’s perspective, the movement toward “value over volume” and risk-bearing systems such as accountable care organizations (ACOs) requires healthcare organizations to think like insurance companies. They must be able to accurately predict clinical outcomes within a population so that they can assess their actuarial risk and manage appropriately. Wide variations in care make those predictions less valid and outcomes more unpredictable, greatly raising the stakes for an ACO or other risk-bearing model.

From the CFO’s perspective, a key advantage to the move toward systems directly employing physicians is that a management structure can be created to decrease this variation; however, I’d question whether many physician groups, much less employed-group practices, have the appropriate management culture or the sophistication with data to do this effectively.

The Cost of Recapitalization

Most of the hospitals I’ve worked in are a jumble of incrementally newer additions built on a decades-old core facility. Clinicians tend to see the consequences as patients see them: not enough private rooms, outdated technology and equipment, poorly integrated computer and health IT systems, and inadequate storage for equipment. Your CFO certainly sees these same things, but has the additional challenge of trying to keep up with the demands for new facilities and capital purchases while maintaining the older physical plant and preserving the long-term financial strength of the organization. Even though roofing, HVAC, and new flooring are rarely as sexy as a new surgical robot, it won’t do much good to invest in that new OR equipment if the roof is leaking. And healthcare construction is really expensive, even more so because of entirely appropriate requirements that renovations bring older structures up to modern codes.

In the healthcare world, these expenses are formidable. Hospitals, like other businesses, sometimes borrow money to fund projects—particularly new construction projects. Nonprofit hospitals can be attractive to lenders because of their tax-advantaged nature. But, like our personal credit ratings, a healthcare system that enters into the bond market has specific metrics at which lenders look carefully to determine the cost of such lending, such as payer mix, income margin, debt ratios, and earnings before interest, depreciation, and amortization (EBIDA). And that’s where we come full circle to that latest conversation with the CFO.

So in order to preserve the ability to meet the needs of stakeholders, our friends in finance need to make sure a long-range plan is in place that continues to fund operations, growth, and ongoing maintenance, including the ability to borrow money when appropriate. Going forward, thriving healthcare organizations will have to be consumer-minded and successful in managing the risks of population health. The uncertainty created by the exchanges and transparency, and the inability to accurately gauge and manage the risk of adverse outcomes, has our CFO colleagues pleading with us for a prescription that will ease their restless nights. Here’s how we can help:

• Focus on working with your group to measure and minimize variations in care processes and outcomes among patients and doctors;
• Be mindful that in a value-based world, CMS and insurers now look at both inpatient and outpatient utilization and costs, and we need to do the same in our transitional care planning; and
• Be conscious that our prescriptions for care are increasingly impacting patients’ wallets, so we need to articulate and demonstrate the clinical value that underlies each decision.

In Sum

The next time you or your nocturnist is admitting that nth patient at 3 a.m., consider that your CFO may also be wide awake, struggling with his or her own version of a management challenge. As physicians who practice in hospitals, which are perhaps the most costly environments in the healthcare world, you and your colleagues may be well positioned to help make your hospitals more efficient, to better manage and improve those outcomes, and to help identify and prioritize the most pressing capital needs.

In short, just what the doctor ordered for your CFO to finally get a good night’s sleep.

Dr. Harte is president of Hillcrest Hospital in Mayfield Heights, Ohio, part of the Cleveland Clinic Health System. He is associate professor of medicine at the Lerner College of Medicine in Cleveland and an SHM board member.

The changes launched by the Affordable Care Act are upon us and have created considerable trepidation among many in healthcare, particularly our chief financial officers (CFOs). The CFOs’ core responsibilities include financial planning, contracting, and setting budgets. Although finance teams and clinical leaders sometimes feel like they are speaking different languages—and, in fact, many physicians couldn’t pick their hospital’s CFO out of a police lineup—successful healthcare systems bridge that gap, enabling clinical and finance leaders to work together toward common goals.

It’s easy for us doctor types to be leery of our hospital’s financial team. If you’ve ever been in direct conversation with your CFO, you may have found the discussion was packed with terms like “EBIDA,” “capital allocation,” and “operating margin,” and seemed to imply that the organization is prioritizing its bond rating over its composite PSI [patient safety indicators] performance. But the truth is that our finance teams are frustrated, too. In fact, they are more than frustrated—they are scared.

They really haven’t been sleeping well lately. They’d feel better if doctors could try to see the world that they see. A CFO’s core responsibility is ensuring a responsible, long-range financial plan that meets the needs of their hospital stakeholders—to paraphrase Tom Wolfe paraphrasing astronaut Gus Grissom, “no bucks, no Buck Rogers”—and that responsibility got a lot harder in 2014. By understanding their perspective, we clinicians should be able to take actions that result in better care of our patients today—and ensure a sustainable hospital that can take care of patients tomorrow. So that we can better empathize with our green-visored colleagues, here are a few of the thoughts going through their heads as they toss and turn at 3 a.m.

Change Is All Around

There are many urgent pressures on hospital, physician, and healthcare revenues. Keep in mind that a hospital’s costs in terms of pharmaceuticals, equipment, and labor (the average hospital has nearly 60% of its cost in labor) are not really going down to offset that revenue loss. While we’ve become uncomfortably familiar with RAC audits, value-based purchasing, the sustainable growth rate, and sequestration, I’d suggest that these revenue challenges pale in comparison to the insomnia created by the rapid rise of healthcare consumerism. Lost, or at least buried, in the stories about ACA politics, coverage of the uninsured, website malfunctions, and dropped insurance plans is the fact that the nature of insurance is changing.

Although offerings like medical savings accounts and high-deductible plans have been around for years, they are increasingly mainstream, because the plans offered through the insurance exchanges, which have surpassed the seven million mark in enrollment as of the time of this writing, all carry substantial patient commitments. The great majority of these plans—81% through February—are either “bronze” or “silver” level—and keep in mind that the average “gold” plan, in covering 80% of anticipated expenses, leaves patients with higher commitments than most large-employer group plans probably do. From that standpoint, they require patients, doctors, and hospitals to manage healthcare differently than they have in the past: We have to be mindful that patients are paying more of the “first dollar.”

The problem, from a CFO’s perspective, is at least twofold: First, a lot of patients don’t pay the portion of their bill for which they are responsible. Many doctors, hospitals, and healthcare systems are moving toward more assertive and up-front collections for non-emergency care; unfortunately, at best, we don’t do a very good job and, at worst, we create an uncomfortable space where we either channel the practices of collection agencies or leave much-needed funds on the table. As the deductibles, co-pays, and co-insurance obligations rise, so do the uncollected accounts. Our advocacy for patients increasingly requires us to be better stewards of their resources.

The second insomnia-inducing aspect of consumerism is transparency of pricing. As the exchanges move to create a “Priceline.com”-like approach to selecting an insurance plan, a similar transformation is occurring in how payers—and, with the spread of plans with higher patient obligations, patients themselves—are looking at how we set prices for everything from MRIs and laboratory services to hospitalization and physician charges. While we as individuals are used to price transparency in purchasing consumer goods, the third-party payment system in healthcare has insulated us, and our hospitals, from the consequences of the market system. (Please note, dear reader: I’m not defending either the past practices or current policy. I’m simply diagnosing why your CFO has black circles under his or her eyes.)

So, prices are increasingly published and available for comparison shopping by both insurers and individuals with those high deductibles or co-insurance amounts. As charges hit their pocketbooks, there is good reason to believe that patients will be “brand loyal” only to the point where they stop appreciating value. Systems with a reliable advantage in pricing (think: academic medical centers) run a great risk of losing business quickly if they cannot demonstrate value for those prices. Hospital-based physicians have been in the position of being the “translators” of value-based care—by always advocating for measurably better care, we help both our patients and our organizations.

Variation in Care

Perhaps most befuddling to our CFO friends are the variations in costs, outcomes, and clinical processes that seemingly similar patients with seemingly similar problems incur. Wide variations might occur based on just about any parameter, from the name of the attending physician to the day of the week of admission. Of course, at times, this variation could be explainable by, say, clinically relevant features that are simply not adjusted for, or the absence of literature to guide decisions. But, all too often, no reasonable explanation exists, and underneath that is a simmering concern that wide variations reflect failure to adhere to known guidelines, uneven distribution of resources, and “waste” deeply embedded in the healthcare value stream.

Less widely understood to clinicians is that, from the CFO’s perspective, the movement toward “value over volume” and risk-bearing systems such as accountable care organizations (ACOs) requires healthcare organizations to think like insurance companies. They must be able to accurately predict clinical outcomes within a population so that they can assess their actuarial risk and manage appropriately. Wide variations in care make those predictions less valid and outcomes more unpredictable, greatly raising the stakes for an ACO or other risk-bearing model.

From the CFO’s perspective, a key advantage to the move toward systems directly employing physicians is that a management structure can be created to decrease this variation; however, I’d question whether many physician groups, much less employed-group practices, have the appropriate management culture or the sophistication with data to do this effectively.

The Cost of Recapitalization

Most of the hospitals I’ve worked in are a jumble of incrementally newer additions built on a decades-old core facility. Clinicians tend to see the consequences as patients see them: not enough private rooms, outdated technology and equipment, poorly integrated computer and health IT systems, and inadequate storage for equipment. Your CFO certainly sees these same things, but has the additional challenge of trying to keep up with the demands for new facilities and capital purchases while maintaining the older physical plant and preserving the long-term financial strength of the organization. Even though roofing, HVAC, and new flooring are rarely as sexy as a new surgical robot, it won’t do much good to invest in that new OR equipment if the roof is leaking. And healthcare construction is really expensive, even more so because of entirely appropriate requirements that renovations bring older structures up to modern codes.

In the healthcare world, these expenses are formidable. Hospitals, like other businesses, sometimes borrow money to fund projects—particularly new construction projects. Nonprofit hospitals can be attractive to lenders because of their tax-advantaged nature. But, like our personal credit ratings, a healthcare system that enters into the bond market has specific metrics at which lenders look carefully to determine the cost of such lending, such as payer mix, income margin, debt ratios, and earnings before interest, depreciation, and amortization (EBIDA). And that’s where we come full circle to that latest conversation with the CFO.

So in order to preserve the ability to meet the needs of stakeholders, our friends in finance need to make sure a long-range plan is in place that continues to fund operations, growth, and ongoing maintenance, including the ability to borrow money when appropriate. Going forward, thriving healthcare organizations will have to be consumer-minded and successful in managing the risks of population health. The uncertainty created by the exchanges and transparency, and the inability to accurately gauge and manage the risk of adverse outcomes, has our CFO colleagues pleading with us for a prescription that will ease their restless nights. Here’s how we can help:

• Focus on working with your group to measure and minimize variations in care processes and outcomes among patients and doctors;
• Be mindful that in a value-based world, CMS and insurers now look at both inpatient and outpatient utilization and costs, and we need to do the same in our transitional care planning; and
• Be conscious that our prescriptions for care are increasingly impacting patients’ wallets, so we need to articulate and demonstrate the clinical value that underlies each decision.

In Sum

The next time you or your nocturnist is admitting that nth patient at 3 a.m., consider that your CFO may also be wide awake, struggling with his or her own version of a management challenge. As physicians who practice in hospitals, which are perhaps the most costly environments in the healthcare world, you and your colleagues may be well positioned to help make your hospitals more efficient, to better manage and improve those outcomes, and to help identify and prioritize the most pressing capital needs.

In short, just what the doctor ordered for your CFO to finally get a good night’s sleep.

Dr. Harte is president of Hillcrest Hospital in Mayfield Heights, Ohio, part of the Cleveland Clinic Health System. He is associate professor of medicine at the Lerner College of Medicine in Cleveland and an SHM board member.

The changes launched by the Affordable Care Act are upon us and have created considerable trepidation among many in healthcare, particularly our chief financial officers (CFOs). The CFOs’ core responsibilities include financial planning, contracting, and setting budgets. Although finance teams and clinical leaders sometimes feel like they are speaking different languages—and, in fact, many physicians couldn’t pick their hospital’s CFO out of a police lineup—successful healthcare systems bridge that gap, enabling clinical and finance leaders to work together toward common goals.

It’s easy for us doctor types to be leery of our hospital’s financial team. If you’ve ever been in direct conversation with your CFO, you may have found the discussion was packed with terms like “EBIDA,” “capital allocation,” and “operating margin,” and seemed to imply that the organization is prioritizing its bond rating over its composite PSI [patient safety indicators] performance. But the truth is that our finance teams are frustrated, too. In fact, they are more than frustrated—they are scared.

They really haven’t been sleeping well lately. They’d feel better if doctors could try to see the world that they see. A CFO’s core responsibility is ensuring a responsible, long-range financial plan that meets the needs of their hospital stakeholders—to paraphrase Tom Wolfe paraphrasing astronaut Gus Grissom, “no bucks, no Buck Rogers”—and that responsibility got a lot harder in 2014. By understanding their perspective, we clinicians should be able to take actions that result in better care of our patients today—and ensure a sustainable hospital that can take care of patients tomorrow. So that we can better empathize with our green-visored colleagues, here are a few of the thoughts going through their heads as they toss and turn at 3 a.m.

Change Is All Around

There are many urgent pressures on hospital, physician, and healthcare revenues. Keep in mind that a hospital’s costs in terms of pharmaceuticals, equipment, and labor (the average hospital has nearly 60% of its cost in labor) are not really going down to offset that revenue loss. While we’ve become uncomfortably familiar with RAC audits, value-based purchasing, the sustainable growth rate, and sequestration, I’d suggest that these revenue challenges pale in comparison to the insomnia created by the rapid rise of healthcare consumerism. Lost, or at least buried, in the stories about ACA politics, coverage of the uninsured, website malfunctions, and dropped insurance plans is the fact that the nature of insurance is changing.

Although offerings like medical savings accounts and high-deductible plans have been around for years, they are increasingly mainstream, because the plans offered through the insurance exchanges, which have surpassed the seven million mark in enrollment as of the time of this writing, all carry substantial patient commitments. The great majority of these plans—81% through February—are either “bronze” or “silver” level—and keep in mind that the average “gold” plan, in covering 80% of anticipated expenses, leaves patients with higher commitments than most large-employer group plans probably do. From that standpoint, they require patients, doctors, and hospitals to manage healthcare differently than they have in the past: We have to be mindful that patients are paying more of the “first dollar.”

The problem, from a CFO’s perspective, is at least twofold: First, a lot of patients don’t pay the portion of their bill for which they are responsible. Many doctors, hospitals, and healthcare systems are moving toward more assertive and up-front collections for non-emergency care; unfortunately, at best, we don’t do a very good job and, at worst, we create an uncomfortable space where we either channel the practices of collection agencies or leave much-needed funds on the table. As the deductibles, co-pays, and co-insurance obligations rise, so do the uncollected accounts. Our advocacy for patients increasingly requires us to be better stewards of their resources.

The second insomnia-inducing aspect of consumerism is transparency of pricing. As the exchanges move to create a “Priceline.com”-like approach to selecting an insurance plan, a similar transformation is occurring in how payers—and, with the spread of plans with higher patient obligations, patients themselves—are looking at how we set prices for everything from MRIs and laboratory services to hospitalization and physician charges. While we as individuals are used to price transparency in purchasing consumer goods, the third-party payment system in healthcare has insulated us, and our hospitals, from the consequences of the market system. (Please note, dear reader: I’m not defending either the past practices or current policy. I’m simply diagnosing why your CFO has black circles under his or her eyes.)

So, prices are increasingly published and available for comparison shopping by both insurers and individuals with those high deductibles or co-insurance amounts. As charges hit their pocketbooks, there is good reason to believe that patients will be “brand loyal” only to the point where they stop appreciating value. Systems with a reliable advantage in pricing (think: academic medical centers) run a great risk of losing business quickly if they cannot demonstrate value for those prices. Hospital-based physicians have been in the position of being the “translators” of value-based care—by always advocating for measurably better care, we help both our patients and our organizations.

Variation in Care

Perhaps most befuddling to our CFO friends are the variations in costs, outcomes, and clinical processes that seemingly similar patients with seemingly similar problems incur. Wide variations might occur based on just about any parameter, from the name of the attending physician to the day of the week of admission. Of course, at times, this variation could be explainable by, say, clinically relevant features that are simply not adjusted for, or the absence of literature to guide decisions. But, all too often, no reasonable explanation exists, and underneath that is a simmering concern that wide variations reflect failure to adhere to known guidelines, uneven distribution of resources, and “waste” deeply embedded in the healthcare value stream.

Less widely understood to clinicians is that, from the CFO’s perspective, the movement toward “value over volume” and risk-bearing systems such as accountable care organizations (ACOs) requires healthcare organizations to think like insurance companies. They must be able to accurately predict clinical outcomes within a population so that they can assess their actuarial risk and manage appropriately. Wide variations in care make those predictions less valid and outcomes more unpredictable, greatly raising the stakes for an ACO or other risk-bearing model.

From the CFO’s perspective, a key advantage to the move toward systems directly employing physicians is that a management structure can be created to decrease this variation; however, I’d question whether many physician groups, much less employed-group practices, have the appropriate management culture or the sophistication with data to do this effectively.

The Cost of Recapitalization

Most of the hospitals I’ve worked in are a jumble of incrementally newer additions built on a decades-old core facility. Clinicians tend to see the consequences as patients see them: not enough private rooms, outdated technology and equipment, poorly integrated computer and health IT systems, and inadequate storage for equipment. Your CFO certainly sees these same things, but has the additional challenge of trying to keep up with the demands for new facilities and capital purchases while maintaining the older physical plant and preserving the long-term financial strength of the organization. Even though roofing, HVAC, and new flooring are rarely as sexy as a new surgical robot, it won’t do much good to invest in that new OR equipment if the roof is leaking. And healthcare construction is really expensive, even more so because of entirely appropriate requirements that renovations bring older structures up to modern codes.

In the healthcare world, these expenses are formidable. Hospitals, like other businesses, sometimes borrow money to fund projects—particularly new construction projects. Nonprofit hospitals can be attractive to lenders because of their tax-advantaged nature. But, like our personal credit ratings, a healthcare system that enters into the bond market has specific metrics at which lenders look carefully to determine the cost of such lending, such as payer mix, income margin, debt ratios, and earnings before interest, depreciation, and amortization (EBIDA). And that’s where we come full circle to that latest conversation with the CFO.

So in order to preserve the ability to meet the needs of stakeholders, our friends in finance need to make sure a long-range plan is in place that continues to fund operations, growth, and ongoing maintenance, including the ability to borrow money when appropriate. Going forward, thriving healthcare organizations will have to be consumer-minded and successful in managing the risks of population health. The uncertainty created by the exchanges and transparency, and the inability to accurately gauge and manage the risk of adverse outcomes, has our CFO colleagues pleading with us for a prescription that will ease their restless nights. Here’s how we can help:

• Focus on working with your group to measure and minimize variations in care processes and outcomes among patients and doctors;
• Be mindful that in a value-based world, CMS and insurers now look at both inpatient and outpatient utilization and costs, and we need to do the same in our transitional care planning; and
• Be conscious that our prescriptions for care are increasingly impacting patients’ wallets, so we need to articulate and demonstrate the clinical value that underlies each decision.

In Sum

The next time you or your nocturnist is admitting that nth patient at 3 a.m., consider that your CFO may also be wide awake, struggling with his or her own version of a management challenge. As physicians who practice in hospitals, which are perhaps the most costly environments in the healthcare world, you and your colleagues may be well positioned to help make your hospitals more efficient, to better manage and improve those outcomes, and to help identify and prioritize the most pressing capital needs.

In short, just what the doctor ordered for your CFO to finally get a good night’s sleep.

Dr. Harte is president of Hillcrest Hospital in Mayfield Heights, Ohio, part of the Cleveland Clinic Health System. He is associate professor of medicine at the Lerner College of Medicine in Cleveland and an SHM board member.

BABY SEVERELY HANDICAPPED AFTER PREMATURE LABOR: $42.9M VERDICT
A 27-year-old mother had a normal prenatal ultrasonography (US) result in March 2007. In July, she went to the emergency department (ED) with pelvic pressure. A maternal-fetal medicine (MFM) specialist noted that the patient’s cervix had shortened to 1.3 cm. US showed that excessive amniotic fluid was causing uterine distention. The patient was monitored by an on-call ObGyn for 3.5 hours before being discharged home on pelvic and modified bed rest.

Two days later, the mother reported frequent contractions to her ObGyn. The baby was born the next day by emergency cesarean delivery at 25 weeks’ gestation. The newborn had seizures and a brain hemorrhage. The child has mental disabilities, blindness, spastic quadriparesis, cerebral palsy, gastroesophageal reflux, and complex feeding disorder.

PARENTS’ CLAIM The on-call ObGyn did not give the patient specific instructions for pelvic and bed rest upon discharge. The MFM specialist and on-call ObGyn failed to admit the patient to the hospital, and failed to administer intravenous steroids (betamethasone) to protect the fetal brain and induce respiratory development.

DEFENDANTS’ DEFENSE There was no indication during the MFM specialist’s examination that delivery was imminent. The use of betamethasone would not have prevented or inhibited premature labor. The infant’s problems were due to prematurity and low birth weight.

VERDICT A $42.9 million Pennsylvania verdict was returned against the MFM specialist; the on-call ObGyn and hospital were vindicated.

PELVIC LYMPH NODES NOT SAMPLED
When a 68-year-old woman reported vaginal spotting to her gynecologist (Dr. A) in March 2006, the results of an endometrial biopsy were negative. She saw another gynecologist (Dr. B) for a second opinion when bleeding continued. After dilation and curettage, grade 1B endometrial cancer was identified. The patient underwent a hysterectomy and bilateral salpingo-oophorectomy. She received a diagnosis of metastatic cancer of the pelvis and pelvic and para-aortic lymph nodes 18 months later. After additional surgery, the patient died in March 2008.

ESTATE’S CLAIM Dr. A was negligent in failing to diagnose the cancer in March 2006. Dr. B should have performed pelvic lymphadenectomy at hysterectomy; a lymphadenectomy would have accurately staged metastatic cancer.

DEFENDANTS’ DEFENSE Care and treatment were appropriate. Performing a lymphadenectomy would have exposed the patient to a significant risk of morbidity.

VERDICT A $750,000 California verdict was reduced to $250,000 under the state cap.

LARGE BABY: ERB’S PALSY
Shoulder dystocia was encountered when a 38-year-old woman gave birth. The child later received a diagnosis of Erb’s palsy, and has had several operations. At trial, the child had loss of function of the affected arm and wore a brace.

PARENTS’ CLAIM A vaginal delivery should not have been performed because the mother had gestational diabetes and the baby weighed 8 lb 8 oz at birth. Cesarean delivery was never offered.

DEFENDANTS’ DEFENSE Labor appeared normal. Proper delivery techniques were used when shoulder dystocia was encountered.

VERDICT A $12.9 million Michigan verdict was reduced to $4 million under the state cap.

Related articles:
You are the second responder to a shoulder dystocia emergency. What do you do first? Robert L. Barbieri, MD (Editorial; May 2013)
STOP all activities that may lead to further shoulder impaction when you suspect possible shoulder dystocia  Ronald T. Burkman, MD (Stop/Start; March 2013)
The natural history of obstetric brachial plexus injury Robert L. Barbieri, MD (Editorial, February 2013)

SPINAL CORD INJURY
During anesthesia administration before cesarean delivery, a mother’s spinal cord was injured, resulting in irritation of multiple nerve roots. She has chronic nerve pain syndrome.

PATIENT’S CLAIM The anesthesiologist was negligent in how he administered the spinal block.

PHYSICIAN’S DEFENSE There was no negligence. The injury is a known complication of the procedure.

VERDICT An Indiana defense verdict was returned.

AORTA PUNCTURED: $4M VERDICT
A 35-year-old woman underwent laparoscopic cystectomy on her left ovary performed by her gynecologist. During the procedure, the patient’s aorta was punctured, and she lost more than half her blood volume. After immediate surgery to repair the aorta, she was hospitalized for 5 days.

PATIENT’S CLAIM The injury was due to improper insertion of the laparoscopic instruments; the trocars were improperly angled and too forcefully inserted. The injury was a known risk of the procedure for obese patients, but she is not obese. She has a residual scar and is at increased risk of developing adhesions.

PHYSICIAN’S DEFENSE The instruments were properly inserted. The injury is a known risk of the procedure.

VERDICT A $4 million New York verdict was returned.

RESUSCITATION TOOK 22 MINUTES
At 40 6/7 weeks’ gestation, a mother went to the ED after her membranes spontaneously ruptured. The child was delivered by vacuum extraction 30 hours later.

At birth, the baby was blue and limp with Apgar scores of 2, 3, and 7, at 1, 5, and 10 minutes, respectively. The infant required 22 minutes of resuscitation. The neonatal record included metabolic acidosis, respiratory distress, possible sepsis, shoulder dystocia, and seizure activity. The child suffered hypoxic ischemic encephalopathy and permanent neurologic injury.

PARENTS’ CLAIM Cesarean delivery should have been performed due to repetitive decelerations, fetal tachycardia, and increasingly long uterine contractions. Continued use of oxytocin contributed to the infant’s injuries.

DEFENDANTS’ DEFENSE Fetal heart-rate tracings were reassuring during labor. Decreased variability, rising fetal heart rate, and late decelerations are normal during labor and delivery. The infant’s blood gas did not fall below 7.0 pH. The use of oxytocin was proper. There was no way to determine cephalopelvic disproportion or the baby’s size at 6 days postterm. The mother was opposed to a cesarean delivery and requested vaginal delivery (although no such request was included in the medical records).

VERDICT A $55 million Pennsylvania verdict was returned.

INJURY DURING OVARIAN REMNANT RESECTION
A woman in her 40s reported lower left quadrant pain. A previous oophorectomy report indicated that ovarian tissue attached to the bowel had not been removed. Thinking the pain might be related to residual ovarian tissue, her gynecologist recommended resection. During surgery, the patient’s bowel was injured. Four additional operations were required, including bowel resection with colostomy, and then colostomy reversal 5 months later.

PATIENT’S CLAIM The gynecologist was negligent in failing to properly perform surgery. The surgeon’s report from the oophorectomy indicated that there were extensive adhesions, which increased the risk of complications from surgery to remove the remnant. Ovarian remnant syndrome could have been treated with medication to induce menopause.

PHYSICIAN’S DEFENSE The patient might have suffered injury from medication-induced menopause. Surgery was appropriate; the injury is a known risk of the procedure.

VERDICT A $200,000 New York verdict was returned.

SEVERE INFECTION AFTER BIRTH
A 32-year-old woman left the hospital within hours of giving birth because her mother was ill. Before discharge, she reported severe abdominal pain and was examined by a first-year resident. The patient returned to the hospital 6 hours later with a severe uterine infection. She was hospitalized for a month.

PATIENT’S CLAIM The resident failed to properly assess her symptom reports, failed to order testing, and was negligent in allowing her to leave the hospital.

DEFENDANTS’ DEFENSE The patient left the hospital against medical recommendations. She might have acquired the infection after leaving the hospital.

VERDICT A $285,000 Michigan verdict was returned. The patient was found to be 40% at fault.

TERMINAL BRADYCARDIA: $12M VERDICT WITH MIXED FAULT
Four days after her due date, a mother’s blood pressure was elevated, and labor was induced. Two days after oxytocin was started, decelerations occurred. The ObGyn was called after the second deceleration, and witnessed the fourth deceleration about an hour later. After six decelerations, the fetal heart rate dropped to 70 bpm and did not return to baseline. A cesarean delivery was performed 26 minutes later. The child was born with a severe brain injury.

PARENTS’ CLAIM The nurses and ObGyn failed to recognize, report, and address nonreassuring fetal heart signs, and did not discontinue oxytocin after the second deceleration. Hospital protocols were ignored. An earlier cesarean delivery would have avoided injury; the fetus was without oxygen from the sixth deceleration until delivery.

DEFENDANTS’ DEFENSE There was no causation between the alleged violation of hospital protocols and the outcome. The ObGyn was appropriately notified. The injury was caused by terminal bradycardia during a prolonged deceleration that resulted from cord compression; it was unpredictable.

The ObGyn claimed earlier delivery was not indicated. Decelerations did not predict a bradycardic event from which the fetus would not recover nor indicate a need to stop oxytocin. The fetal heart rate had always recovered until the final deceleration. Bradycardia is unpredictable.

VERDICT A $12.165 million Hawaii verdict was returned, with the ObGyn 35% at fault, and the hospital 65% at fault. 

Related article: Stop staring at that Category-II fetal heart-rate tracing… Robert L. Barbieri, MD (Editorial, April 2011)

BREAST BIOPSY MIXUP; SHE DIDN’T HAVE CANCER
A 53-year-old woman reported right breast pain. Mammography revealed scattered fibroglandular elements. Targeted US showed a solid nodule that could be an intramammary lymph node or small fibroadenoma. After an office-based biopsy, the breast surgeon (Dr. A) told the patient that she had breast cancer. 

Because Dr. A was not in her health insurance plan, the patient took her imaging studies and biopsy results to Dr. B, another surgeon. Dr. B performed a mastectomy with lymphadenectomy. There was no evidence of malignancy in the pathologic review of breast and lymph tissue.

PATIENT’S CLAIM Dr. A performed biopsies on several women that same day; all were sent to the same laboratory for analysis. Dr. A and the laboratory failed to properly label and handle the biopsy specimens. Incorrect diagnosis caused her to undergo unnecessary mastectomy, lymph node biopsy, and a long, complicated breast reconstruction.

DEFENDANTS’ DEFENSE The case was settled at trial.

VERDICT A $1,780,000 Virginia settlement was reached.

Related article: Does screening mammography save lives? Janelle Yates (April 2014)

CLUES MISSED; BABY HAS CP, OTHER INJURIES
A 19-year-old mother had regular prenatal care. In early June, she weighed 221 lb and had a fundal height of 36 cm. The certified nurse midwife (CNM) noted little fetal movement, was uncertain of the fetal position, and made a note to check the amniotic fluid at the next visit. A week later, US did not indicate a decrease in amniotic fluid. Records do not indicate that the amniotic fluid index was checked at the next visit (38 weeks’ gestation).

Two days later, the patient reported decreased fetal movement. At the ED, nonreassuring fetal heart tracings were recorded. Fifteen minutes later, the fetal heart rate fell to 50 bpm and did not recover. The on-call ObGyn artificially ruptured the membranes and placed a direct fetal lead. An emergency cesarean delivery was performed in 15 minutes through thick meconium.

Apgar scores were 0, 2, and 4 at 1, 5, and 10 minutes, respectively. The baby weighed 4 lb 4 oz, and was transferred to a children’s hospital, where she stayed for 6 weeks. She suffered seizures and was tube fed. The child has cerebral palsy and profound neurologic impairment. At age 7, she is unable to speak.

PATIENT’S CLAIM The CNM was negligent for not being more proactive when she questioned the amniotic fluid index and noted reduced fetal movement in early June and at subsequent visits. The presence of meconium at birth attested that the fetus had been in distress.

DEFENDANTS’ DEFENSE The case was settled at trial.

VERDICT A $2 million Massachusetts settlement was reached.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

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BABY SEVERELY HANDICAPPED AFTER PREMATURE LABOR: $42.9M VERDICT
A 27-year-old mother had a normal prenatal ultrasonography (US) result in March 2007. In July, she went to the emergency department (ED) with pelvic pressure. A maternal-fetal medicine (MFM) specialist noted that the patient’s cervix had shortened to 1.3 cm. US showed that excessive amniotic fluid was causing uterine distention. The patient was monitored by an on-call ObGyn for 3.5 hours before being discharged home on pelvic and modified bed rest.

Two days later, the mother reported frequent contractions to her ObGyn. The baby was born the next day by emergency cesarean delivery at 25 weeks’ gestation. The newborn had seizures and a brain hemorrhage. The child has mental disabilities, blindness, spastic quadriparesis, cerebral palsy, gastroesophageal reflux, and complex feeding disorder.

PARENTS’ CLAIM The on-call ObGyn did not give the patient specific instructions for pelvic and bed rest upon discharge. The MFM specialist and on-call ObGyn failed to admit the patient to the hospital, and failed to administer intravenous steroids (betamethasone) to protect the fetal brain and induce respiratory development.

DEFENDANTS’ DEFENSE There was no indication during the MFM specialist’s examination that delivery was imminent. The use of betamethasone would not have prevented or inhibited premature labor. The infant’s problems were due to prematurity and low birth weight.

VERDICT A $42.9 million Pennsylvania verdict was returned against the MFM specialist; the on-call ObGyn and hospital were vindicated.

PELVIC LYMPH NODES NOT SAMPLED
When a 68-year-old woman reported vaginal spotting to her gynecologist (Dr. A) in March 2006, the results of an endometrial biopsy were negative. She saw another gynecologist (Dr. B) for a second opinion when bleeding continued. After dilation and curettage, grade 1B endometrial cancer was identified. The patient underwent a hysterectomy and bilateral salpingo-oophorectomy. She received a diagnosis of metastatic cancer of the pelvis and pelvic and para-aortic lymph nodes 18 months later. After additional surgery, the patient died in March 2008.

ESTATE’S CLAIM Dr. A was negligent in failing to diagnose the cancer in March 2006. Dr. B should have performed pelvic lymphadenectomy at hysterectomy; a lymphadenectomy would have accurately staged metastatic cancer.

DEFENDANTS’ DEFENSE Care and treatment were appropriate. Performing a lymphadenectomy would have exposed the patient to a significant risk of morbidity.

VERDICT A $750,000 California verdict was reduced to $250,000 under the state cap.

LARGE BABY: ERB’S PALSY
Shoulder dystocia was encountered when a 38-year-old woman gave birth. The child later received a diagnosis of Erb’s palsy, and has had several operations. At trial, the child had loss of function of the affected arm and wore a brace.

PARENTS’ CLAIM A vaginal delivery should not have been performed because the mother had gestational diabetes and the baby weighed 8 lb 8 oz at birth. Cesarean delivery was never offered.

DEFENDANTS’ DEFENSE Labor appeared normal. Proper delivery techniques were used when shoulder dystocia was encountered.

VERDICT A $12.9 million Michigan verdict was reduced to $4 million under the state cap.

Related articles:
You are the second responder to a shoulder dystocia emergency. What do you do first? Robert L. Barbieri, MD (Editorial; May 2013)
STOP all activities that may lead to further shoulder impaction when you suspect possible shoulder dystocia  Ronald T. Burkman, MD (Stop/Start; March 2013)
The natural history of obstetric brachial plexus injury Robert L. Barbieri, MD (Editorial, February 2013)

SPINAL CORD INJURY
During anesthesia administration before cesarean delivery, a mother’s spinal cord was injured, resulting in irritation of multiple nerve roots. She has chronic nerve pain syndrome.

PATIENT’S CLAIM The anesthesiologist was negligent in how he administered the spinal block.

PHYSICIAN’S DEFENSE There was no negligence. The injury is a known complication of the procedure.

VERDICT An Indiana defense verdict was returned.

AORTA PUNCTURED: $4M VERDICT
A 35-year-old woman underwent laparoscopic cystectomy on her left ovary performed by her gynecologist. During the procedure, the patient’s aorta was punctured, and she lost more than half her blood volume. After immediate surgery to repair the aorta, she was hospitalized for 5 days.

PATIENT’S CLAIM The injury was due to improper insertion of the laparoscopic instruments; the trocars were improperly angled and too forcefully inserted. The injury was a known risk of the procedure for obese patients, but she is not obese. She has a residual scar and is at increased risk of developing adhesions.

PHYSICIAN’S DEFENSE The instruments were properly inserted. The injury is a known risk of the procedure.

VERDICT A $4 million New York verdict was returned.

RESUSCITATION TOOK 22 MINUTES
At 40 6/7 weeks’ gestation, a mother went to the ED after her membranes spontaneously ruptured. The child was delivered by vacuum extraction 30 hours later.

At birth, the baby was blue and limp with Apgar scores of 2, 3, and 7, at 1, 5, and 10 minutes, respectively. The infant required 22 minutes of resuscitation. The neonatal record included metabolic acidosis, respiratory distress, possible sepsis, shoulder dystocia, and seizure activity. The child suffered hypoxic ischemic encephalopathy and permanent neurologic injury.

PARENTS’ CLAIM Cesarean delivery should have been performed due to repetitive decelerations, fetal tachycardia, and increasingly long uterine contractions. Continued use of oxytocin contributed to the infant’s injuries.

DEFENDANTS’ DEFENSE Fetal heart-rate tracings were reassuring during labor. Decreased variability, rising fetal heart rate, and late decelerations are normal during labor and delivery. The infant’s blood gas did not fall below 7.0 pH. The use of oxytocin was proper. There was no way to determine cephalopelvic disproportion or the baby’s size at 6 days postterm. The mother was opposed to a cesarean delivery and requested vaginal delivery (although no such request was included in the medical records).

VERDICT A $55 million Pennsylvania verdict was returned.

INJURY DURING OVARIAN REMNANT RESECTION
A woman in her 40s reported lower left quadrant pain. A previous oophorectomy report indicated that ovarian tissue attached to the bowel had not been removed. Thinking the pain might be related to residual ovarian tissue, her gynecologist recommended resection. During surgery, the patient’s bowel was injured. Four additional operations were required, including bowel resection with colostomy, and then colostomy reversal 5 months later.

PATIENT’S CLAIM The gynecologist was negligent in failing to properly perform surgery. The surgeon’s report from the oophorectomy indicated that there were extensive adhesions, which increased the risk of complications from surgery to remove the remnant. Ovarian remnant syndrome could have been treated with medication to induce menopause.

PHYSICIAN’S DEFENSE The patient might have suffered injury from medication-induced menopause. Surgery was appropriate; the injury is a known risk of the procedure.

VERDICT A $200,000 New York verdict was returned.

SEVERE INFECTION AFTER BIRTH
A 32-year-old woman left the hospital within hours of giving birth because her mother was ill. Before discharge, she reported severe abdominal pain and was examined by a first-year resident. The patient returned to the hospital 6 hours later with a severe uterine infection. She was hospitalized for a month.

PATIENT’S CLAIM The resident failed to properly assess her symptom reports, failed to order testing, and was negligent in allowing her to leave the hospital.

DEFENDANTS’ DEFENSE The patient left the hospital against medical recommendations. She might have acquired the infection after leaving the hospital.

VERDICT A $285,000 Michigan verdict was returned. The patient was found to be 40% at fault.

TERMINAL BRADYCARDIA: $12M VERDICT WITH MIXED FAULT
Four days after her due date, a mother’s blood pressure was elevated, and labor was induced. Two days after oxytocin was started, decelerations occurred. The ObGyn was called after the second deceleration, and witnessed the fourth deceleration about an hour later. After six decelerations, the fetal heart rate dropped to 70 bpm and did not return to baseline. A cesarean delivery was performed 26 minutes later. The child was born with a severe brain injury.

PARENTS’ CLAIM The nurses and ObGyn failed to recognize, report, and address nonreassuring fetal heart signs, and did not discontinue oxytocin after the second deceleration. Hospital protocols were ignored. An earlier cesarean delivery would have avoided injury; the fetus was without oxygen from the sixth deceleration until delivery.

DEFENDANTS’ DEFENSE There was no causation between the alleged violation of hospital protocols and the outcome. The ObGyn was appropriately notified. The injury was caused by terminal bradycardia during a prolonged deceleration that resulted from cord compression; it was unpredictable.

The ObGyn claimed earlier delivery was not indicated. Decelerations did not predict a bradycardic event from which the fetus would not recover nor indicate a need to stop oxytocin. The fetal heart rate had always recovered until the final deceleration. Bradycardia is unpredictable.

VERDICT A $12.165 million Hawaii verdict was returned, with the ObGyn 35% at fault, and the hospital 65% at fault. 

Related article: Stop staring at that Category-II fetal heart-rate tracing… Robert L. Barbieri, MD (Editorial, April 2011)

BREAST BIOPSY MIXUP; SHE DIDN’T HAVE CANCER
A 53-year-old woman reported right breast pain. Mammography revealed scattered fibroglandular elements. Targeted US showed a solid nodule that could be an intramammary lymph node or small fibroadenoma. After an office-based biopsy, the breast surgeon (Dr. A) told the patient that she had breast cancer. 

Because Dr. A was not in her health insurance plan, the patient took her imaging studies and biopsy results to Dr. B, another surgeon. Dr. B performed a mastectomy with lymphadenectomy. There was no evidence of malignancy in the pathologic review of breast and lymph tissue.

PATIENT’S CLAIM Dr. A performed biopsies on several women that same day; all were sent to the same laboratory for analysis. Dr. A and the laboratory failed to properly label and handle the biopsy specimens. Incorrect diagnosis caused her to undergo unnecessary mastectomy, lymph node biopsy, and a long, complicated breast reconstruction.

DEFENDANTS’ DEFENSE The case was settled at trial.

VERDICT A $1,780,000 Virginia settlement was reached.

Related article: Does screening mammography save lives? Janelle Yates (April 2014)

CLUES MISSED; BABY HAS CP, OTHER INJURIES
A 19-year-old mother had regular prenatal care. In early June, she weighed 221 lb and had a fundal height of 36 cm. The certified nurse midwife (CNM) noted little fetal movement, was uncertain of the fetal position, and made a note to check the amniotic fluid at the next visit. A week later, US did not indicate a decrease in amniotic fluid. Records do not indicate that the amniotic fluid index was checked at the next visit (38 weeks’ gestation).

Two days later, the patient reported decreased fetal movement. At the ED, nonreassuring fetal heart tracings were recorded. Fifteen minutes later, the fetal heart rate fell to 50 bpm and did not recover. The on-call ObGyn artificially ruptured the membranes and placed a direct fetal lead. An emergency cesarean delivery was performed in 15 minutes through thick meconium.

Apgar scores were 0, 2, and 4 at 1, 5, and 10 minutes, respectively. The baby weighed 4 lb 4 oz, and was transferred to a children’s hospital, where she stayed for 6 weeks. She suffered seizures and was tube fed. The child has cerebral palsy and profound neurologic impairment. At age 7, she is unable to speak.

PATIENT’S CLAIM The CNM was negligent for not being more proactive when she questioned the amniotic fluid index and noted reduced fetal movement in early June and at subsequent visits. The presence of meconium at birth attested that the fetus had been in distress.

DEFENDANTS’ DEFENSE The case was settled at trial.

VERDICT A $2 million Massachusetts settlement was reached.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

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BABY SEVERELY HANDICAPPED AFTER PREMATURE LABOR: $42.9M VERDICT
A 27-year-old mother had a normal prenatal ultrasonography (US) result in March 2007. In July, she went to the emergency department (ED) with pelvic pressure. A maternal-fetal medicine (MFM) specialist noted that the patient’s cervix had shortened to 1.3 cm. US showed that excessive amniotic fluid was causing uterine distention. The patient was monitored by an on-call ObGyn for 3.5 hours before being discharged home on pelvic and modified bed rest.

Two days later, the mother reported frequent contractions to her ObGyn. The baby was born the next day by emergency cesarean delivery at 25 weeks’ gestation. The newborn had seizures and a brain hemorrhage. The child has mental disabilities, blindness, spastic quadriparesis, cerebral palsy, gastroesophageal reflux, and complex feeding disorder.

PARENTS’ CLAIM The on-call ObGyn did not give the patient specific instructions for pelvic and bed rest upon discharge. The MFM specialist and on-call ObGyn failed to admit the patient to the hospital, and failed to administer intravenous steroids (betamethasone) to protect the fetal brain and induce respiratory development.

DEFENDANTS’ DEFENSE There was no indication during the MFM specialist’s examination that delivery was imminent. The use of betamethasone would not have prevented or inhibited premature labor. The infant’s problems were due to prematurity and low birth weight.

VERDICT A $42.9 million Pennsylvania verdict was returned against the MFM specialist; the on-call ObGyn and hospital were vindicated.

PELVIC LYMPH NODES NOT SAMPLED
When a 68-year-old woman reported vaginal spotting to her gynecologist (Dr. A) in March 2006, the results of an endometrial biopsy were negative. She saw another gynecologist (Dr. B) for a second opinion when bleeding continued. After dilation and curettage, grade 1B endometrial cancer was identified. The patient underwent a hysterectomy and bilateral salpingo-oophorectomy. She received a diagnosis of metastatic cancer of the pelvis and pelvic and para-aortic lymph nodes 18 months later. After additional surgery, the patient died in March 2008.

ESTATE’S CLAIM Dr. A was negligent in failing to diagnose the cancer in March 2006. Dr. B should have performed pelvic lymphadenectomy at hysterectomy; a lymphadenectomy would have accurately staged metastatic cancer.

DEFENDANTS’ DEFENSE Care and treatment were appropriate. Performing a lymphadenectomy would have exposed the patient to a significant risk of morbidity.

VERDICT A $750,000 California verdict was reduced to $250,000 under the state cap.

LARGE BABY: ERB’S PALSY
Shoulder dystocia was encountered when a 38-year-old woman gave birth. The child later received a diagnosis of Erb’s palsy, and has had several operations. At trial, the child had loss of function of the affected arm and wore a brace.

PARENTS’ CLAIM A vaginal delivery should not have been performed because the mother had gestational diabetes and the baby weighed 8 lb 8 oz at birth. Cesarean delivery was never offered.

DEFENDANTS’ DEFENSE Labor appeared normal. Proper delivery techniques were used when shoulder dystocia was encountered.

VERDICT A $12.9 million Michigan verdict was reduced to $4 million under the state cap.

Related articles:
You are the second responder to a shoulder dystocia emergency. What do you do first? Robert L. Barbieri, MD (Editorial; May 2013)
STOP all activities that may lead to further shoulder impaction when you suspect possible shoulder dystocia  Ronald T. Burkman, MD (Stop/Start; March 2013)
The natural history of obstetric brachial plexus injury Robert L. Barbieri, MD (Editorial, February 2013)

SPINAL CORD INJURY
During anesthesia administration before cesarean delivery, a mother’s spinal cord was injured, resulting in irritation of multiple nerve roots. She has chronic nerve pain syndrome.

PATIENT’S CLAIM The anesthesiologist was negligent in how he administered the spinal block.

PHYSICIAN’S DEFENSE There was no negligence. The injury is a known complication of the procedure.

VERDICT An Indiana defense verdict was returned.

AORTA PUNCTURED: $4M VERDICT
A 35-year-old woman underwent laparoscopic cystectomy on her left ovary performed by her gynecologist. During the procedure, the patient’s aorta was punctured, and she lost more than half her blood volume. After immediate surgery to repair the aorta, she was hospitalized for 5 days.

PATIENT’S CLAIM The injury was due to improper insertion of the laparoscopic instruments; the trocars were improperly angled and too forcefully inserted. The injury was a known risk of the procedure for obese patients, but she is not obese. She has a residual scar and is at increased risk of developing adhesions.

PHYSICIAN’S DEFENSE The instruments were properly inserted. The injury is a known risk of the procedure.

VERDICT A $4 million New York verdict was returned.

RESUSCITATION TOOK 22 MINUTES
At 40 6/7 weeks’ gestation, a mother went to the ED after her membranes spontaneously ruptured. The child was delivered by vacuum extraction 30 hours later.

At birth, the baby was blue and limp with Apgar scores of 2, 3, and 7, at 1, 5, and 10 minutes, respectively. The infant required 22 minutes of resuscitation. The neonatal record included metabolic acidosis, respiratory distress, possible sepsis, shoulder dystocia, and seizure activity. The child suffered hypoxic ischemic encephalopathy and permanent neurologic injury.

PARENTS’ CLAIM Cesarean delivery should have been performed due to repetitive decelerations, fetal tachycardia, and increasingly long uterine contractions. Continued use of oxytocin contributed to the infant’s injuries.

DEFENDANTS’ DEFENSE Fetal heart-rate tracings were reassuring during labor. Decreased variability, rising fetal heart rate, and late decelerations are normal during labor and delivery. The infant’s blood gas did not fall below 7.0 pH. The use of oxytocin was proper. There was no way to determine cephalopelvic disproportion or the baby’s size at 6 days postterm. The mother was opposed to a cesarean delivery and requested vaginal delivery (although no such request was included in the medical records).

VERDICT A $55 million Pennsylvania verdict was returned.

INJURY DURING OVARIAN REMNANT RESECTION
A woman in her 40s reported lower left quadrant pain. A previous oophorectomy report indicated that ovarian tissue attached to the bowel had not been removed. Thinking the pain might be related to residual ovarian tissue, her gynecologist recommended resection. During surgery, the patient’s bowel was injured. Four additional operations were required, including bowel resection with colostomy, and then colostomy reversal 5 months later.

PATIENT’S CLAIM The gynecologist was negligent in failing to properly perform surgery. The surgeon’s report from the oophorectomy indicated that there were extensive adhesions, which increased the risk of complications from surgery to remove the remnant. Ovarian remnant syndrome could have been treated with medication to induce menopause.

PHYSICIAN’S DEFENSE The patient might have suffered injury from medication-induced menopause. Surgery was appropriate; the injury is a known risk of the procedure.

VERDICT A $200,000 New York verdict was returned.

SEVERE INFECTION AFTER BIRTH
A 32-year-old woman left the hospital within hours of giving birth because her mother was ill. Before discharge, she reported severe abdominal pain and was examined by a first-year resident. The patient returned to the hospital 6 hours later with a severe uterine infection. She was hospitalized for a month.

PATIENT’S CLAIM The resident failed to properly assess her symptom reports, failed to order testing, and was negligent in allowing her to leave the hospital.

DEFENDANTS’ DEFENSE The patient left the hospital against medical recommendations. She might have acquired the infection after leaving the hospital.

VERDICT A $285,000 Michigan verdict was returned. The patient was found to be 40% at fault.

TERMINAL BRADYCARDIA: $12M VERDICT WITH MIXED FAULT
Four days after her due date, a mother’s blood pressure was elevated, and labor was induced. Two days after oxytocin was started, decelerations occurred. The ObGyn was called after the second deceleration, and witnessed the fourth deceleration about an hour later. After six decelerations, the fetal heart rate dropped to 70 bpm and did not return to baseline. A cesarean delivery was performed 26 minutes later. The child was born with a severe brain injury.

PARENTS’ CLAIM The nurses and ObGyn failed to recognize, report, and address nonreassuring fetal heart signs, and did not discontinue oxytocin after the second deceleration. Hospital protocols were ignored. An earlier cesarean delivery would have avoided injury; the fetus was without oxygen from the sixth deceleration until delivery.

DEFENDANTS’ DEFENSE There was no causation between the alleged violation of hospital protocols and the outcome. The ObGyn was appropriately notified. The injury was caused by terminal bradycardia during a prolonged deceleration that resulted from cord compression; it was unpredictable.

The ObGyn claimed earlier delivery was not indicated. Decelerations did not predict a bradycardic event from which the fetus would not recover nor indicate a need to stop oxytocin. The fetal heart rate had always recovered until the final deceleration. Bradycardia is unpredictable.

VERDICT A $12.165 million Hawaii verdict was returned, with the ObGyn 35% at fault, and the hospital 65% at fault. 

Related article: Stop staring at that Category-II fetal heart-rate tracing… Robert L. Barbieri, MD (Editorial, April 2011)

BREAST BIOPSY MIXUP; SHE DIDN’T HAVE CANCER
A 53-year-old woman reported right breast pain. Mammography revealed scattered fibroglandular elements. Targeted US showed a solid nodule that could be an intramammary lymph node or small fibroadenoma. After an office-based biopsy, the breast surgeon (Dr. A) told the patient that she had breast cancer. 

Because Dr. A was not in her health insurance plan, the patient took her imaging studies and biopsy results to Dr. B, another surgeon. Dr. B performed a mastectomy with lymphadenectomy. There was no evidence of malignancy in the pathologic review of breast and lymph tissue.

PATIENT’S CLAIM Dr. A performed biopsies on several women that same day; all were sent to the same laboratory for analysis. Dr. A and the laboratory failed to properly label and handle the biopsy specimens. Incorrect diagnosis caused her to undergo unnecessary mastectomy, lymph node biopsy, and a long, complicated breast reconstruction.

DEFENDANTS’ DEFENSE The case was settled at trial.

VERDICT A $1,780,000 Virginia settlement was reached.

Related article: Does screening mammography save lives? Janelle Yates (April 2014)

CLUES MISSED; BABY HAS CP, OTHER INJURIES
A 19-year-old mother had regular prenatal care. In early June, she weighed 221 lb and had a fundal height of 36 cm. The certified nurse midwife (CNM) noted little fetal movement, was uncertain of the fetal position, and made a note to check the amniotic fluid at the next visit. A week later, US did not indicate a decrease in amniotic fluid. Records do not indicate that the amniotic fluid index was checked at the next visit (38 weeks’ gestation).

Two days later, the patient reported decreased fetal movement. At the ED, nonreassuring fetal heart tracings were recorded. Fifteen minutes later, the fetal heart rate fell to 50 bpm and did not recover. The on-call ObGyn artificially ruptured the membranes and placed a direct fetal lead. An emergency cesarean delivery was performed in 15 minutes through thick meconium.

Apgar scores were 0, 2, and 4 at 1, 5, and 10 minutes, respectively. The baby weighed 4 lb 4 oz, and was transferred to a children’s hospital, where she stayed for 6 weeks. She suffered seizures and was tube fed. The child has cerebral palsy and profound neurologic impairment. At age 7, she is unable to speak.

PATIENT’S CLAIM The CNM was negligent for not being more proactive when she questioned the amniotic fluid index and noted reduced fetal movement in early June and at subsequent visits. The presence of meconium at birth attested that the fetus had been in distress.

DEFENDANTS’ DEFENSE The case was settled at trial.

VERDICT A $2 million Massachusetts settlement was reached.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

TELL US WHAT YOU THINK!
Drop us a line and let us know what you think about this or other current articles, which topics you'd like to see covered in future issues, and what challenges you face in daily practice. Tell us what you think by emailing us at: [email protected] Please include your name, city and state.
Stay in touch! Your feedback is important to us!

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