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How the ADA shapes health care
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical or legal advice. For additional information, readers may contact the author at [email protected].
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical or legal advice. For additional information, readers may contact the author at [email protected].
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical or legal advice. For additional information, readers may contact the author at [email protected].
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Psychiatry 2.0: Experiencing psychiatry’s new challenges together
“It is beyond a doubt that all our knowledge begins with experience.”
- Immanuel Kant
Medicine, a highly experiential profession, is constantly evolving. The consistency of change and the psychiatrist’s inherent wonder offers a paradoxical sense of comfort and conundrum.
As students, we look to our predecessors, associations, and peers to master concepts both concrete and abstract. And once we achieve competence at understanding mechanisms, applying biopsychosocial formulations, and effectively teaching what we’ve learned—everything changes!
We journey through a new era of medicine together. With burgeoning technology, intense politics, and confounding social media, we are undergoing new applications, hurdles to health care, and personal exposure to extremes that have never been experienced before. The landscape of psychiatric practice is changing. Its transformation inherently challenges our existing practices and standards.
It wasn’t too long ago that classroom fodder included how to deal with seeing your patient at a cocktail party. Contemporary discussions are more likely to address the patient who follows you on Twitter (and whom you follow back). Long ago are the days of educating students through a didactic model. Learning now occurs in collaborative group settings with a focus on the practical and hands-on experience. Budding psychiatrists are interested these days in talking about setting up their own apps, establishing a start-up company for health care, working on policy reform, and innovating new approaches to achieve social justice.
A history of challenge and change
Developing variables and expectations in this Millennial Age makes it an exciting time for psychiatrists to explore, adapt, and lead into the future. Fortunately, the field has had ample practice with challenge and changes. Social constructs of how individuals with mental illness were treated altered with William Battie, an English physician whose 1758 Treatise on Madness called for treatments to be utilized on rich and poor mental patients alike in asylums.1 Remember the days of chaining patients to bedposts on psychiatric wards? Of course not! Such archaic practices thankfully disappeared, due in large part to French physician Philippe Pinel. Patient care has evolved to encompass empathy, rights, and dignity.2
German physician Johann Christian Reil, who coined the term “psychiatry” more than 200 years ago, asserted that mental illness should be treated by the most highly qualified physicians.3 Such thinking seems obvious in 2018, but before Reil, the mental and physical states were seen as unrelated.
Modern psychiatry has certainly come a long way.4 We recognize mental health as being essential to overall health. Medications have evolved beyond lithium, chlorpromazine, and fluoxetine. We now have quarterly injectable antipsychotics and pills that patients can swallow and actually be monitored by their clinicians!4
The American Psychiatric Association (APA) has published multiple iterations of the Diagnostic and Statistical Manual of Mental Disorders since its inception in 1968.5 And with those revisions have come changes that most contemporary colleagues could only describe as self-evident—such as the declassification of homosexuality as a mental disorder in 1973.
Despite these advances and the advent of the Mental Health Parity Act of 2008, experience has shown us that some things have seen little progress. Reil, who saw a nexus between mental and physical health, launched an anti-stigma campaign more than 200 years ago. This begs a question to colleagues: How far have we come? Or better yet, capitalizing on our knowledge, experience, and hopes: What else can we do?
The essential interaction between mental, chemical, and physical domains has given rise to psychiatry and its many subspecialties. Among them is forensic psychiatry, which deals with the overlap of mental health and legal matters.6
While often recognized for its relation to criminology, forensic psychiatry encompasses the entirety of legal mental health matters.7 These are things that the daily practitioner faces on a routine basis.
My mentor, Dr. Douglas Mossman, author of
A new department for a new era
The world is changing very rapidly, and we face new dilemmas in the midst of trying to uphold our duties to patients and the profession. There are emerging domains that psychiatrists will experience for the first time—leaving us with more questions than direction. And that is the impetus for this new department, Psychiatry 2.0.
The ever-evolving Internet opens doors for psychiatrists to access and educate a larger audience. It also provides a tool for psychiatrists to keep a web-based presence, something essential for competitive business practices to stay relevant. We are languishing in a political climate that challenges our sense of duty to the public, which often is in contrast with the ethical principles of our association. Technology also poses problems, whether it’s tracking our patients through the pills they ingest, following them on an app, or relying on data from wearable devices in lieu of a patient’s report. All of this suggests a potential for progress as well as problems.
The goal of Psychiatry 2.0 is to experience new challenges together. As Department Editor, I will cover an array of cutting-edge and controversial topics. Continuing with Dr. Mossman’s teachings—that forensic understanding enhances the clinical practice—this department will routinely combine evidence-based information with legal concepts.
Each article in Psychiatry 2.0 will be divided into 3 parts, focusing on a clinician’s dilemma, a duty, and a discussion. The dilemma will be relatable to the clinician in everyday practice. A practical and evidence-based approach will be taken to expound upon our duty as physicians. And finally, there will be discussion about where the field is going, and how it will likely change. In its quarterly publication, Psychiatry 2.0 will explore a diverse range of topics, including technology, social media, stigma, social justice, and politics.
In memoriam: Douglas Mossman, MD
In my role as Department Editor, I find myself already reflecting on the experience, wisdom, compassion, encouragement, and legacy of Dr. Mossman. A distinguished psychiatrist, gifted musician, and inspiring mentor and academician, Dr. Mossman embodied knowledge, creativity, and devotion.
Among Dr. Mossman’s many accolades, including more than 180 authored publications, he was recipient of the Guttmacher Award (2008, the APA) and Golden Apple (2017, the American Academy of Psychiatry and Law). Dr. Mossman was further known to many as a mentor and friend. He was generous with his experiences as a highly accomplished physician and thoughtful in his teachings and publications, leaving an enduring legacy.
Remembering Dr. Mossman’s sage voice and articulate writings will be essential to moving forward in this modern age of psychiatry, as we experience new dilemmas and opportunities.
1. Morris A. William Battie’s Treatise on Madness (1758) and John Monro’s remarks on Dr Battie’s Treatise (1758). Br J Psychiatry. 2008;192(4):257.
2. Scull A. Moral treatment reconsidered. Social order/mental disorder: Anglo-American psychiatry in historical perspective. Berkeley, CA: University of California Press; 1986;81-95.
3. Marneros A. Psychiatry’s 200th birthday. Br J Psychiatry. 2008;193(1):1-3.
4. Cade JF. Lithium salts in the treatment of psychotic excitement. Med J Aust. 1949;2(10):349-352.
5. Diagnostic and statistical manual of mental disorders, 5th ed. Washington, DC: American Psychiatric Publishing; 2013.
6. Gold LH. Rediscovering forensic psychiatry. The American Psychiatric Publishing Textbook of Forensic Psychiatry. Simon RI, Gold LH, eds. Washington, DC: American Psychiatric Publishing; 2004;3-36.
7. Gutheil TG. The history of forensic psychiatry. J Am Acad Psychiatry Law. 2005;33(2):259-262.
“It is beyond a doubt that all our knowledge begins with experience.”
- Immanuel Kant
Medicine, a highly experiential profession, is constantly evolving. The consistency of change and the psychiatrist’s inherent wonder offers a paradoxical sense of comfort and conundrum.
As students, we look to our predecessors, associations, and peers to master concepts both concrete and abstract. And once we achieve competence at understanding mechanisms, applying biopsychosocial formulations, and effectively teaching what we’ve learned—everything changes!
We journey through a new era of medicine together. With burgeoning technology, intense politics, and confounding social media, we are undergoing new applications, hurdles to health care, and personal exposure to extremes that have never been experienced before. The landscape of psychiatric practice is changing. Its transformation inherently challenges our existing practices and standards.
It wasn’t too long ago that classroom fodder included how to deal with seeing your patient at a cocktail party. Contemporary discussions are more likely to address the patient who follows you on Twitter (and whom you follow back). Long ago are the days of educating students through a didactic model. Learning now occurs in collaborative group settings with a focus on the practical and hands-on experience. Budding psychiatrists are interested these days in talking about setting up their own apps, establishing a start-up company for health care, working on policy reform, and innovating new approaches to achieve social justice.
A history of challenge and change
Developing variables and expectations in this Millennial Age makes it an exciting time for psychiatrists to explore, adapt, and lead into the future. Fortunately, the field has had ample practice with challenge and changes. Social constructs of how individuals with mental illness were treated altered with William Battie, an English physician whose 1758 Treatise on Madness called for treatments to be utilized on rich and poor mental patients alike in asylums.1 Remember the days of chaining patients to bedposts on psychiatric wards? Of course not! Such archaic practices thankfully disappeared, due in large part to French physician Philippe Pinel. Patient care has evolved to encompass empathy, rights, and dignity.2
German physician Johann Christian Reil, who coined the term “psychiatry” more than 200 years ago, asserted that mental illness should be treated by the most highly qualified physicians.3 Such thinking seems obvious in 2018, but before Reil, the mental and physical states were seen as unrelated.
Modern psychiatry has certainly come a long way.4 We recognize mental health as being essential to overall health. Medications have evolved beyond lithium, chlorpromazine, and fluoxetine. We now have quarterly injectable antipsychotics and pills that patients can swallow and actually be monitored by their clinicians!4
The American Psychiatric Association (APA) has published multiple iterations of the Diagnostic and Statistical Manual of Mental Disorders since its inception in 1968.5 And with those revisions have come changes that most contemporary colleagues could only describe as self-evident—such as the declassification of homosexuality as a mental disorder in 1973.
Despite these advances and the advent of the Mental Health Parity Act of 2008, experience has shown us that some things have seen little progress. Reil, who saw a nexus between mental and physical health, launched an anti-stigma campaign more than 200 years ago. This begs a question to colleagues: How far have we come? Or better yet, capitalizing on our knowledge, experience, and hopes: What else can we do?
The essential interaction between mental, chemical, and physical domains has given rise to psychiatry and its many subspecialties. Among them is forensic psychiatry, which deals with the overlap of mental health and legal matters.6
While often recognized for its relation to criminology, forensic psychiatry encompasses the entirety of legal mental health matters.7 These are things that the daily practitioner faces on a routine basis.
My mentor, Dr. Douglas Mossman, author of
A new department for a new era
The world is changing very rapidly, and we face new dilemmas in the midst of trying to uphold our duties to patients and the profession. There are emerging domains that psychiatrists will experience for the first time—leaving us with more questions than direction. And that is the impetus for this new department, Psychiatry 2.0.
The ever-evolving Internet opens doors for psychiatrists to access and educate a larger audience. It also provides a tool for psychiatrists to keep a web-based presence, something essential for competitive business practices to stay relevant. We are languishing in a political climate that challenges our sense of duty to the public, which often is in contrast with the ethical principles of our association. Technology also poses problems, whether it’s tracking our patients through the pills they ingest, following them on an app, or relying on data from wearable devices in lieu of a patient’s report. All of this suggests a potential for progress as well as problems.
The goal of Psychiatry 2.0 is to experience new challenges together. As Department Editor, I will cover an array of cutting-edge and controversial topics. Continuing with Dr. Mossman’s teachings—that forensic understanding enhances the clinical practice—this department will routinely combine evidence-based information with legal concepts.
Each article in Psychiatry 2.0 will be divided into 3 parts, focusing on a clinician’s dilemma, a duty, and a discussion. The dilemma will be relatable to the clinician in everyday practice. A practical and evidence-based approach will be taken to expound upon our duty as physicians. And finally, there will be discussion about where the field is going, and how it will likely change. In its quarterly publication, Psychiatry 2.0 will explore a diverse range of topics, including technology, social media, stigma, social justice, and politics.
In memoriam: Douglas Mossman, MD
In my role as Department Editor, I find myself already reflecting on the experience, wisdom, compassion, encouragement, and legacy of Dr. Mossman. A distinguished psychiatrist, gifted musician, and inspiring mentor and academician, Dr. Mossman embodied knowledge, creativity, and devotion.
Among Dr. Mossman’s many accolades, including more than 180 authored publications, he was recipient of the Guttmacher Award (2008, the APA) and Golden Apple (2017, the American Academy of Psychiatry and Law). Dr. Mossman was further known to many as a mentor and friend. He was generous with his experiences as a highly accomplished physician and thoughtful in his teachings and publications, leaving an enduring legacy.
Remembering Dr. Mossman’s sage voice and articulate writings will be essential to moving forward in this modern age of psychiatry, as we experience new dilemmas and opportunities.
“It is beyond a doubt that all our knowledge begins with experience.”
- Immanuel Kant
Medicine, a highly experiential profession, is constantly evolving. The consistency of change and the psychiatrist’s inherent wonder offers a paradoxical sense of comfort and conundrum.
As students, we look to our predecessors, associations, and peers to master concepts both concrete and abstract. And once we achieve competence at understanding mechanisms, applying biopsychosocial formulations, and effectively teaching what we’ve learned—everything changes!
We journey through a new era of medicine together. With burgeoning technology, intense politics, and confounding social media, we are undergoing new applications, hurdles to health care, and personal exposure to extremes that have never been experienced before. The landscape of psychiatric practice is changing. Its transformation inherently challenges our existing practices and standards.
It wasn’t too long ago that classroom fodder included how to deal with seeing your patient at a cocktail party. Contemporary discussions are more likely to address the patient who follows you on Twitter (and whom you follow back). Long ago are the days of educating students through a didactic model. Learning now occurs in collaborative group settings with a focus on the practical and hands-on experience. Budding psychiatrists are interested these days in talking about setting up their own apps, establishing a start-up company for health care, working on policy reform, and innovating new approaches to achieve social justice.
A history of challenge and change
Developing variables and expectations in this Millennial Age makes it an exciting time for psychiatrists to explore, adapt, and lead into the future. Fortunately, the field has had ample practice with challenge and changes. Social constructs of how individuals with mental illness were treated altered with William Battie, an English physician whose 1758 Treatise on Madness called for treatments to be utilized on rich and poor mental patients alike in asylums.1 Remember the days of chaining patients to bedposts on psychiatric wards? Of course not! Such archaic practices thankfully disappeared, due in large part to French physician Philippe Pinel. Patient care has evolved to encompass empathy, rights, and dignity.2
German physician Johann Christian Reil, who coined the term “psychiatry” more than 200 years ago, asserted that mental illness should be treated by the most highly qualified physicians.3 Such thinking seems obvious in 2018, but before Reil, the mental and physical states were seen as unrelated.
Modern psychiatry has certainly come a long way.4 We recognize mental health as being essential to overall health. Medications have evolved beyond lithium, chlorpromazine, and fluoxetine. We now have quarterly injectable antipsychotics and pills that patients can swallow and actually be monitored by their clinicians!4
The American Psychiatric Association (APA) has published multiple iterations of the Diagnostic and Statistical Manual of Mental Disorders since its inception in 1968.5 And with those revisions have come changes that most contemporary colleagues could only describe as self-evident—such as the declassification of homosexuality as a mental disorder in 1973.
Despite these advances and the advent of the Mental Health Parity Act of 2008, experience has shown us that some things have seen little progress. Reil, who saw a nexus between mental and physical health, launched an anti-stigma campaign more than 200 years ago. This begs a question to colleagues: How far have we come? Or better yet, capitalizing on our knowledge, experience, and hopes: What else can we do?
The essential interaction between mental, chemical, and physical domains has given rise to psychiatry and its many subspecialties. Among them is forensic psychiatry, which deals with the overlap of mental health and legal matters.6
While often recognized for its relation to criminology, forensic psychiatry encompasses the entirety of legal mental health matters.7 These are things that the daily practitioner faces on a routine basis.
My mentor, Dr. Douglas Mossman, author of
A new department for a new era
The world is changing very rapidly, and we face new dilemmas in the midst of trying to uphold our duties to patients and the profession. There are emerging domains that psychiatrists will experience for the first time—leaving us with more questions than direction. And that is the impetus for this new department, Psychiatry 2.0.
The ever-evolving Internet opens doors for psychiatrists to access and educate a larger audience. It also provides a tool for psychiatrists to keep a web-based presence, something essential for competitive business practices to stay relevant. We are languishing in a political climate that challenges our sense of duty to the public, which often is in contrast with the ethical principles of our association. Technology also poses problems, whether it’s tracking our patients through the pills they ingest, following them on an app, or relying on data from wearable devices in lieu of a patient’s report. All of this suggests a potential for progress as well as problems.
The goal of Psychiatry 2.0 is to experience new challenges together. As Department Editor, I will cover an array of cutting-edge and controversial topics. Continuing with Dr. Mossman’s teachings—that forensic understanding enhances the clinical practice—this department will routinely combine evidence-based information with legal concepts.
Each article in Psychiatry 2.0 will be divided into 3 parts, focusing on a clinician’s dilemma, a duty, and a discussion. The dilemma will be relatable to the clinician in everyday practice. A practical and evidence-based approach will be taken to expound upon our duty as physicians. And finally, there will be discussion about where the field is going, and how it will likely change. In its quarterly publication, Psychiatry 2.0 will explore a diverse range of topics, including technology, social media, stigma, social justice, and politics.
In memoriam: Douglas Mossman, MD
In my role as Department Editor, I find myself already reflecting on the experience, wisdom, compassion, encouragement, and legacy of Dr. Mossman. A distinguished psychiatrist, gifted musician, and inspiring mentor and academician, Dr. Mossman embodied knowledge, creativity, and devotion.
Among Dr. Mossman’s many accolades, including more than 180 authored publications, he was recipient of the Guttmacher Award (2008, the APA) and Golden Apple (2017, the American Academy of Psychiatry and Law). Dr. Mossman was further known to many as a mentor and friend. He was generous with his experiences as a highly accomplished physician and thoughtful in his teachings and publications, leaving an enduring legacy.
Remembering Dr. Mossman’s sage voice and articulate writings will be essential to moving forward in this modern age of psychiatry, as we experience new dilemmas and opportunities.
1. Morris A. William Battie’s Treatise on Madness (1758) and John Monro’s remarks on Dr Battie’s Treatise (1758). Br J Psychiatry. 2008;192(4):257.
2. Scull A. Moral treatment reconsidered. Social order/mental disorder: Anglo-American psychiatry in historical perspective. Berkeley, CA: University of California Press; 1986;81-95.
3. Marneros A. Psychiatry’s 200th birthday. Br J Psychiatry. 2008;193(1):1-3.
4. Cade JF. Lithium salts in the treatment of psychotic excitement. Med J Aust. 1949;2(10):349-352.
5. Diagnostic and statistical manual of mental disorders, 5th ed. Washington, DC: American Psychiatric Publishing; 2013.
6. Gold LH. Rediscovering forensic psychiatry. The American Psychiatric Publishing Textbook of Forensic Psychiatry. Simon RI, Gold LH, eds. Washington, DC: American Psychiatric Publishing; 2004;3-36.
7. Gutheil TG. The history of forensic psychiatry. J Am Acad Psychiatry Law. 2005;33(2):259-262.
1. Morris A. William Battie’s Treatise on Madness (1758) and John Monro’s remarks on Dr Battie’s Treatise (1758). Br J Psychiatry. 2008;192(4):257.
2. Scull A. Moral treatment reconsidered. Social order/mental disorder: Anglo-American psychiatry in historical perspective. Berkeley, CA: University of California Press; 1986;81-95.
3. Marneros A. Psychiatry’s 200th birthday. Br J Psychiatry. 2008;193(1):1-3.
4. Cade JF. Lithium salts in the treatment of psychotic excitement. Med J Aust. 1949;2(10):349-352.
5. Diagnostic and statistical manual of mental disorders, 5th ed. Washington, DC: American Psychiatric Publishing; 2013.
6. Gold LH. Rediscovering forensic psychiatry. The American Psychiatric Publishing Textbook of Forensic Psychiatry. Simon RI, Gold LH, eds. Washington, DC: American Psychiatric Publishing; 2004;3-36.
7. Gutheil TG. The history of forensic psychiatry. J Am Acad Psychiatry Law. 2005;33(2):259-262.
Mother has severe pain — uterine rupture: $9M settlement
Mother has severe pain — uterine rupture: $9M settlement
At 37 weeks’ gestation, a woman went to the hospital with contractions and abdominal pain 2 weeks before her scheduled delivery. She had a previous
She returned the next night after midnight with contractions and a pain score of 9/10, and she was admitted. The nurses spoke with the ObGyn via phone 6 times over the next 8 hours. He prescribed 3 pain medications but the patient’s pain was unresponsive. When the patient called her ObGyn, he told her an ultrasound would be performed and the baby would be delivered in the morning. FHR monitoring became nonreassuring at 8:00
The baby was transferred to the neonatal intensive care unit (NICU) where he received therapeutic hypothermia. The parents were told that there was a 70% chance that the child would have cerebral palsy. The baby required a feeding tube and was hospitalized for 84 days. After discharge, he was moved to a long-term care facility. During his first year of life, he had pneumonia requiring hospitalization. Due to frequent aspiration of food and saliva into his airway, a tracheostomy was placed.
The child has hypoxic ischemic encephalopathy with severe brain damage, including spastic quadriplegic cerebral palsy. He is blind but can hear. He will need 24-hour nursing care for the rest of his life.
PARENT'S CLAIM: The ObGyn did not properly react to the mother’s reported severe pain. A cesarean delivery should have been performed when the mother first reported to the hospital or when she returned the following night.
PHYSICIAN'S DEFENSE: The defense was expected to argue at trial that the mother was not in labor because medication had stopped contractions; therefore it was reasonable to mature longer before delivery. The case settled during the trial.
VERDICT: A $9 million Michigan settlement was reached during mediation.
Baby dies at birth: $1.3M settlement
A 39-year-old woman was admitted to the hospital at 36 weeks’ gestation with regular contractions. Results of an ultrasound showed normal amniotic fluid and an anterior placental location. The patient’s membranes were artificially ruptured, and she received an epidural. The baby remained at plus-one station for more than 7 hours until delivery. Three attempts to rotate the baby over the course of labor failed. Variable decelerations were present on FHR monitoring throughout labor, and deep decelerations were noted within 2 hours of delivery. The ObGyn ordered cesarean delivery due to arrest of labor and fetal distress; delivery began 64 minutes after the decision. The baby’s head was deeply impacted in the pelvis and a Bandl’s ring was encountered. Several attempts were made to dislodge the fetal head. The fourth attempt, in conjunction with enlarging the hysterotomy, was successful. At birth, the baby was pale with no palpable pulse. A 17-minute resuscitation effort failed. An autopsy concluded that the cause of death was a subgaleal hemorrhage in the setting of acute and subacute placental pathology.
PARENT'S CLAIM: The ObGyn was negligent for not performing a cesarean delivery when the baby could not be rotated from a plus-one station and fetal distress was evident. The ObGyn never accessed the patient’s electronic medical records during the 8 hours of labor. An audit trail review revealed the editing and alleged purging of medical records.
PHYSICIAN'S CLAIM: The case was defended on the basis of the autopsy findings, alleging that the baby was compromised before labor and delivery. A pathology expert testified that blood loss from a subgaleal hemorrhage was not necessarily lethal and may occur spontaneously. However, the pathologist conceded that she failed to note complications that occurred during delivery and acknowledged that the autopsy did not document the bruising of the baby’s head, ear, neck, shoulder, and torso that was evident in autopsy photographs.
VERDICT: A $1.3 million Virginia settlement was reached.
Was tachycardic FHR ignored? $3M settlement
A 25-year-old woman with gestational diabetes was scheduled for induction of labor at 39 2/7 weeks’ gestation. When she presented for induction, artificial rupture of the membranes demonstrated clear fluid with no sign of fetal or maternal distress. Labor and delivery was managed by a certified nurse midwife (CNM) employed by an ObGyn group. Just prior to the CNM’s arrival, the FHR monitor tracings showed a series of decelerations; the CNM stopped the oxytocin. As labor progressed, the CNM reintroduced and increased the oxytocin dosage. The infant’s heart rate became tachycardic. The CNM documented a bloody show of vaginal fluid. After the mother began pushing, the FHR signal was lost on the external monitor and only the maternal pulse was detected. As the infant’s head crowned, the FHR monitor was reconnected; an FHR of 210 bpm was detected showing marked tachycardia.
After vaginal delivery, the child was limp and unresponsive. He had hypoxic ischemic encephalopathy and immediately began to have seizures. He was transferred to the NICU at another hospital where he stayed for 34 days. The infant was found to have spastic quadriplegic cerebral palsy, cortical visual impairment, a seizure disorder, right-sided torticollis, plagiocephaly, expressive language disorder, and dysphagia. He will require 24-hour nursing care for the rest of his life.
PARENT'S CLAIM: The CNM failed to consult an ObGyn to determine whether the patient needed an urgent cesarean delivery when FHR monitoring first indicated a worrisome fetal heart rate. The CNM improperly increased the dosage of oxytocin and did not remain at the mother’s bedside until she was fully dilated and began pushing. The CNM failed to rule out placental abruption or to communicate to the ObGyn that there was bloody show in vaginal fluid. The CNM interpreted the maternal heart rate as a reassuring fetal heart rate. When the monitor was reattached, the CNM failed to call for emergency assistance, despite signs of acute fetal distress. Testing ruled out any preexisting neurologic injury or congenital defect.
DEFENDANT'S DEFENSE: The CNM claimed that she delegated the heart monitoring to the labor nurse and relied on the nurse to report any irregularities. The case was settled during the trial.
VERDICT: A $3 million Virginia settlement was reached, which included $2.1M for the infant and $.9M for the mother.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Mother has severe pain — uterine rupture: $9M settlement
At 37 weeks’ gestation, a woman went to the hospital with contractions and abdominal pain 2 weeks before her scheduled delivery. She had a previous
She returned the next night after midnight with contractions and a pain score of 9/10, and she was admitted. The nurses spoke with the ObGyn via phone 6 times over the next 8 hours. He prescribed 3 pain medications but the patient’s pain was unresponsive. When the patient called her ObGyn, he told her an ultrasound would be performed and the baby would be delivered in the morning. FHR monitoring became nonreassuring at 8:00
The baby was transferred to the neonatal intensive care unit (NICU) where he received therapeutic hypothermia. The parents were told that there was a 70% chance that the child would have cerebral palsy. The baby required a feeding tube and was hospitalized for 84 days. After discharge, he was moved to a long-term care facility. During his first year of life, he had pneumonia requiring hospitalization. Due to frequent aspiration of food and saliva into his airway, a tracheostomy was placed.
The child has hypoxic ischemic encephalopathy with severe brain damage, including spastic quadriplegic cerebral palsy. He is blind but can hear. He will need 24-hour nursing care for the rest of his life.
PARENT'S CLAIM: The ObGyn did not properly react to the mother’s reported severe pain. A cesarean delivery should have been performed when the mother first reported to the hospital or when she returned the following night.
PHYSICIAN'S DEFENSE: The defense was expected to argue at trial that the mother was not in labor because medication had stopped contractions; therefore it was reasonable to mature longer before delivery. The case settled during the trial.
VERDICT: A $9 million Michigan settlement was reached during mediation.
Baby dies at birth: $1.3M settlement
A 39-year-old woman was admitted to the hospital at 36 weeks’ gestation with regular contractions. Results of an ultrasound showed normal amniotic fluid and an anterior placental location. The patient’s membranes were artificially ruptured, and she received an epidural. The baby remained at plus-one station for more than 7 hours until delivery. Three attempts to rotate the baby over the course of labor failed. Variable decelerations were present on FHR monitoring throughout labor, and deep decelerations were noted within 2 hours of delivery. The ObGyn ordered cesarean delivery due to arrest of labor and fetal distress; delivery began 64 minutes after the decision. The baby’s head was deeply impacted in the pelvis and a Bandl’s ring was encountered. Several attempts were made to dislodge the fetal head. The fourth attempt, in conjunction with enlarging the hysterotomy, was successful. At birth, the baby was pale with no palpable pulse. A 17-minute resuscitation effort failed. An autopsy concluded that the cause of death was a subgaleal hemorrhage in the setting of acute and subacute placental pathology.
PARENT'S CLAIM: The ObGyn was negligent for not performing a cesarean delivery when the baby could not be rotated from a plus-one station and fetal distress was evident. The ObGyn never accessed the patient’s electronic medical records during the 8 hours of labor. An audit trail review revealed the editing and alleged purging of medical records.
PHYSICIAN'S CLAIM: The case was defended on the basis of the autopsy findings, alleging that the baby was compromised before labor and delivery. A pathology expert testified that blood loss from a subgaleal hemorrhage was not necessarily lethal and may occur spontaneously. However, the pathologist conceded that she failed to note complications that occurred during delivery and acknowledged that the autopsy did not document the bruising of the baby’s head, ear, neck, shoulder, and torso that was evident in autopsy photographs.
VERDICT: A $1.3 million Virginia settlement was reached.
Was tachycardic FHR ignored? $3M settlement
A 25-year-old woman with gestational diabetes was scheduled for induction of labor at 39 2/7 weeks’ gestation. When she presented for induction, artificial rupture of the membranes demonstrated clear fluid with no sign of fetal or maternal distress. Labor and delivery was managed by a certified nurse midwife (CNM) employed by an ObGyn group. Just prior to the CNM’s arrival, the FHR monitor tracings showed a series of decelerations; the CNM stopped the oxytocin. As labor progressed, the CNM reintroduced and increased the oxytocin dosage. The infant’s heart rate became tachycardic. The CNM documented a bloody show of vaginal fluid. After the mother began pushing, the FHR signal was lost on the external monitor and only the maternal pulse was detected. As the infant’s head crowned, the FHR monitor was reconnected; an FHR of 210 bpm was detected showing marked tachycardia.
After vaginal delivery, the child was limp and unresponsive. He had hypoxic ischemic encephalopathy and immediately began to have seizures. He was transferred to the NICU at another hospital where he stayed for 34 days. The infant was found to have spastic quadriplegic cerebral palsy, cortical visual impairment, a seizure disorder, right-sided torticollis, plagiocephaly, expressive language disorder, and dysphagia. He will require 24-hour nursing care for the rest of his life.
PARENT'S CLAIM: The CNM failed to consult an ObGyn to determine whether the patient needed an urgent cesarean delivery when FHR monitoring first indicated a worrisome fetal heart rate. The CNM improperly increased the dosage of oxytocin and did not remain at the mother’s bedside until she was fully dilated and began pushing. The CNM failed to rule out placental abruption or to communicate to the ObGyn that there was bloody show in vaginal fluid. The CNM interpreted the maternal heart rate as a reassuring fetal heart rate. When the monitor was reattached, the CNM failed to call for emergency assistance, despite signs of acute fetal distress. Testing ruled out any preexisting neurologic injury or congenital defect.
DEFENDANT'S DEFENSE: The CNM claimed that she delegated the heart monitoring to the labor nurse and relied on the nurse to report any irregularities. The case was settled during the trial.
VERDICT: A $3 million Virginia settlement was reached, which included $2.1M for the infant and $.9M for the mother.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Mother has severe pain — uterine rupture: $9M settlement
At 37 weeks’ gestation, a woman went to the hospital with contractions and abdominal pain 2 weeks before her scheduled delivery. She had a previous
She returned the next night after midnight with contractions and a pain score of 9/10, and she was admitted. The nurses spoke with the ObGyn via phone 6 times over the next 8 hours. He prescribed 3 pain medications but the patient’s pain was unresponsive. When the patient called her ObGyn, he told her an ultrasound would be performed and the baby would be delivered in the morning. FHR monitoring became nonreassuring at 8:00
The baby was transferred to the neonatal intensive care unit (NICU) where he received therapeutic hypothermia. The parents were told that there was a 70% chance that the child would have cerebral palsy. The baby required a feeding tube and was hospitalized for 84 days. After discharge, he was moved to a long-term care facility. During his first year of life, he had pneumonia requiring hospitalization. Due to frequent aspiration of food and saliva into his airway, a tracheostomy was placed.
The child has hypoxic ischemic encephalopathy with severe brain damage, including spastic quadriplegic cerebral palsy. He is blind but can hear. He will need 24-hour nursing care for the rest of his life.
PARENT'S CLAIM: The ObGyn did not properly react to the mother’s reported severe pain. A cesarean delivery should have been performed when the mother first reported to the hospital or when she returned the following night.
PHYSICIAN'S DEFENSE: The defense was expected to argue at trial that the mother was not in labor because medication had stopped contractions; therefore it was reasonable to mature longer before delivery. The case settled during the trial.
VERDICT: A $9 million Michigan settlement was reached during mediation.
Baby dies at birth: $1.3M settlement
A 39-year-old woman was admitted to the hospital at 36 weeks’ gestation with regular contractions. Results of an ultrasound showed normal amniotic fluid and an anterior placental location. The patient’s membranes were artificially ruptured, and she received an epidural. The baby remained at plus-one station for more than 7 hours until delivery. Three attempts to rotate the baby over the course of labor failed. Variable decelerations were present on FHR monitoring throughout labor, and deep decelerations were noted within 2 hours of delivery. The ObGyn ordered cesarean delivery due to arrest of labor and fetal distress; delivery began 64 minutes after the decision. The baby’s head was deeply impacted in the pelvis and a Bandl’s ring was encountered. Several attempts were made to dislodge the fetal head. The fourth attempt, in conjunction with enlarging the hysterotomy, was successful. At birth, the baby was pale with no palpable pulse. A 17-minute resuscitation effort failed. An autopsy concluded that the cause of death was a subgaleal hemorrhage in the setting of acute and subacute placental pathology.
PARENT'S CLAIM: The ObGyn was negligent for not performing a cesarean delivery when the baby could not be rotated from a plus-one station and fetal distress was evident. The ObGyn never accessed the patient’s electronic medical records during the 8 hours of labor. An audit trail review revealed the editing and alleged purging of medical records.
PHYSICIAN'S CLAIM: The case was defended on the basis of the autopsy findings, alleging that the baby was compromised before labor and delivery. A pathology expert testified that blood loss from a subgaleal hemorrhage was not necessarily lethal and may occur spontaneously. However, the pathologist conceded that she failed to note complications that occurred during delivery and acknowledged that the autopsy did not document the bruising of the baby’s head, ear, neck, shoulder, and torso that was evident in autopsy photographs.
VERDICT: A $1.3 million Virginia settlement was reached.
Was tachycardic FHR ignored? $3M settlement
A 25-year-old woman with gestational diabetes was scheduled for induction of labor at 39 2/7 weeks’ gestation. When she presented for induction, artificial rupture of the membranes demonstrated clear fluid with no sign of fetal or maternal distress. Labor and delivery was managed by a certified nurse midwife (CNM) employed by an ObGyn group. Just prior to the CNM’s arrival, the FHR monitor tracings showed a series of decelerations; the CNM stopped the oxytocin. As labor progressed, the CNM reintroduced and increased the oxytocin dosage. The infant’s heart rate became tachycardic. The CNM documented a bloody show of vaginal fluid. After the mother began pushing, the FHR signal was lost on the external monitor and only the maternal pulse was detected. As the infant’s head crowned, the FHR monitor was reconnected; an FHR of 210 bpm was detected showing marked tachycardia.
After vaginal delivery, the child was limp and unresponsive. He had hypoxic ischemic encephalopathy and immediately began to have seizures. He was transferred to the NICU at another hospital where he stayed for 34 days. The infant was found to have spastic quadriplegic cerebral palsy, cortical visual impairment, a seizure disorder, right-sided torticollis, plagiocephaly, expressive language disorder, and dysphagia. He will require 24-hour nursing care for the rest of his life.
PARENT'S CLAIM: The CNM failed to consult an ObGyn to determine whether the patient needed an urgent cesarean delivery when FHR monitoring first indicated a worrisome fetal heart rate. The CNM improperly increased the dosage of oxytocin and did not remain at the mother’s bedside until she was fully dilated and began pushing. The CNM failed to rule out placental abruption or to communicate to the ObGyn that there was bloody show in vaginal fluid. The CNM interpreted the maternal heart rate as a reassuring fetal heart rate. When the monitor was reattached, the CNM failed to call for emergency assistance, despite signs of acute fetal distress. Testing ruled out any preexisting neurologic injury or congenital defect.
DEFENDANT'S DEFENSE: The CNM claimed that she delegated the heart monitoring to the labor nurse and relied on the nurse to report any irregularities. The case was settled during the trial.
VERDICT: A $3 million Virginia settlement was reached, which included $2.1M for the infant and $.9M for the mother.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Endometriosis surgery on a young woman: $483,351 award
Endometriosis surgery on a young woman: $483,351 award
A 17-year-old woman reported cramping and heavy bleeding during her menses. Her gynecologist suspected that the patient had endometriosis and recommended laparoscopic surgery with cauterization.
During surgery, the gynecologist found 2 metal staples in the patient’s pelvic region from a prior appendectomy. He continued with the surgery as planned, using monopolar cauterization to excise the endometriosis.
The following day, the patient sought emergency treatment for pain. Physicians discovered 2 perforations in her anterior rectum and performed an emergency colectomy. She spent 18 days in the hospital. When the colectomy was reversed 3 months later, she was hospitalized for 8 days and later developed a postoperative surgical site infection requiring IV antibiotics and weeks of wound care.
The patient was in the middle of her senior year of high school when she had the colectomy and could not return to normal activities. She was unable to graduate with her class and had to relinquish a college scholarship. As a result, she completed her senior year via homeschooling and graduated a year later.
PATIENT'S CLAIM: The gynecologist’s negligent use of the cautery device within millimeters of the staples caused the bowel injury and necessitated the colectomy. The electric current from the cautery device heated the staples, injuring the rectum, which became necrotic. While she had no long-term physical limitations, wearing the colostomy bag, missing her senior year, not being able to graduate with her class, and not being able to participate in typical senior year activities left her emotionally distressed.
PHYSICIAN'S DEFENSE: The staples were not found near the rectal injury. The injury was a known complication of cauterization, not a result of negligence.
VERDICT: A $588,351 California verdict was returned but was reduced to $483,351 because of the state cap on pain and suffering.
RELATED
Surgical excision of the most severe form of endometriosis
Sigmoid colon injury during hysterectomy
A 42-year-old woman had uterine fibroids that caused such heavy bleeding that she became anemic and required a transfusion. On June 26, she underwent laparoscopic-assisted supracervical hysterectomy performed by her primary ObGyn and an assisting ObGyn.
The next day, the patient developed pain and fever and her vital signs were unstable. The primary ObGyn called in a general surgeon. A CT scan showed a tear on the underside of the sigmoid colon. The general surgeon performed a laparotomy, resected the colon, and created a temporary colostomy. The colostomy reversal took place on September 25.
PATIENT'S CLAIM: The patient sued both ObGyns, alleging that they should have found the colon injury during surgery. The primary ObGyn settled before trial and the case continued against the assisting ObGyn. It was undisputed that one or both of the physicians caused the tear, but that was not the patient’s claim. The patient alleged that negligence occurred when the injury was not intraoperatively detected. Had the injury been found during surgery, a general surgeon could have performed a primary repair, saving the patient from further surgery and colostomy. The patient claimed mental anguish and embarrassment from the colostomy. Her abdomen is still tender and she has significant scarring.
PHYSICIAN'S CLAIM: There was no negligence. Nothing was unusual about the nature of the procedure, and nothing unusual was seen intraoperatively that would have led them to search for an injury. They performed adequate and appropriate exploration before closing. The linear tear on the underside of the sigmoid colon was very inconspicuous in size, shape, and location, and was away from the operative area. The injury likely occurred during manipulation of the sigmoid colon, which generally has to be retracted before the uterus can be removed. Even if the injury had been found intraoperatively, a general surgeon would have had to convert to laparoscopy to repair the colon.
VERDICT: After a settlement was reached with the primary gynecologist, a Texas defense verdict was returned for the assisting gynecologist.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Endometriosis surgery on a young woman: $483,351 award
A 17-year-old woman reported cramping and heavy bleeding during her menses. Her gynecologist suspected that the patient had endometriosis and recommended laparoscopic surgery with cauterization.
During surgery, the gynecologist found 2 metal staples in the patient’s pelvic region from a prior appendectomy. He continued with the surgery as planned, using monopolar cauterization to excise the endometriosis.
The following day, the patient sought emergency treatment for pain. Physicians discovered 2 perforations in her anterior rectum and performed an emergency colectomy. She spent 18 days in the hospital. When the colectomy was reversed 3 months later, she was hospitalized for 8 days and later developed a postoperative surgical site infection requiring IV antibiotics and weeks of wound care.
The patient was in the middle of her senior year of high school when she had the colectomy and could not return to normal activities. She was unable to graduate with her class and had to relinquish a college scholarship. As a result, she completed her senior year via homeschooling and graduated a year later.
PATIENT'S CLAIM: The gynecologist’s negligent use of the cautery device within millimeters of the staples caused the bowel injury and necessitated the colectomy. The electric current from the cautery device heated the staples, injuring the rectum, which became necrotic. While she had no long-term physical limitations, wearing the colostomy bag, missing her senior year, not being able to graduate with her class, and not being able to participate in typical senior year activities left her emotionally distressed.
PHYSICIAN'S DEFENSE: The staples were not found near the rectal injury. The injury was a known complication of cauterization, not a result of negligence.
VERDICT: A $588,351 California verdict was returned but was reduced to $483,351 because of the state cap on pain and suffering.
RELATED
Surgical excision of the most severe form of endometriosis
Sigmoid colon injury during hysterectomy
A 42-year-old woman had uterine fibroids that caused such heavy bleeding that she became anemic and required a transfusion. On June 26, she underwent laparoscopic-assisted supracervical hysterectomy performed by her primary ObGyn and an assisting ObGyn.
The next day, the patient developed pain and fever and her vital signs were unstable. The primary ObGyn called in a general surgeon. A CT scan showed a tear on the underside of the sigmoid colon. The general surgeon performed a laparotomy, resected the colon, and created a temporary colostomy. The colostomy reversal took place on September 25.
PATIENT'S CLAIM: The patient sued both ObGyns, alleging that they should have found the colon injury during surgery. The primary ObGyn settled before trial and the case continued against the assisting ObGyn. It was undisputed that one or both of the physicians caused the tear, but that was not the patient’s claim. The patient alleged that negligence occurred when the injury was not intraoperatively detected. Had the injury been found during surgery, a general surgeon could have performed a primary repair, saving the patient from further surgery and colostomy. The patient claimed mental anguish and embarrassment from the colostomy. Her abdomen is still tender and she has significant scarring.
PHYSICIAN'S CLAIM: There was no negligence. Nothing was unusual about the nature of the procedure, and nothing unusual was seen intraoperatively that would have led them to search for an injury. They performed adequate and appropriate exploration before closing. The linear tear on the underside of the sigmoid colon was very inconspicuous in size, shape, and location, and was away from the operative area. The injury likely occurred during manipulation of the sigmoid colon, which generally has to be retracted before the uterus can be removed. Even if the injury had been found intraoperatively, a general surgeon would have had to convert to laparoscopy to repair the colon.
VERDICT: After a settlement was reached with the primary gynecologist, a Texas defense verdict was returned for the assisting gynecologist.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Endometriosis surgery on a young woman: $483,351 award
A 17-year-old woman reported cramping and heavy bleeding during her menses. Her gynecologist suspected that the patient had endometriosis and recommended laparoscopic surgery with cauterization.
During surgery, the gynecologist found 2 metal staples in the patient’s pelvic region from a prior appendectomy. He continued with the surgery as planned, using monopolar cauterization to excise the endometriosis.
The following day, the patient sought emergency treatment for pain. Physicians discovered 2 perforations in her anterior rectum and performed an emergency colectomy. She spent 18 days in the hospital. When the colectomy was reversed 3 months later, she was hospitalized for 8 days and later developed a postoperative surgical site infection requiring IV antibiotics and weeks of wound care.
The patient was in the middle of her senior year of high school when she had the colectomy and could not return to normal activities. She was unable to graduate with her class and had to relinquish a college scholarship. As a result, she completed her senior year via homeschooling and graduated a year later.
PATIENT'S CLAIM: The gynecologist’s negligent use of the cautery device within millimeters of the staples caused the bowel injury and necessitated the colectomy. The electric current from the cautery device heated the staples, injuring the rectum, which became necrotic. While she had no long-term physical limitations, wearing the colostomy bag, missing her senior year, not being able to graduate with her class, and not being able to participate in typical senior year activities left her emotionally distressed.
PHYSICIAN'S DEFENSE: The staples were not found near the rectal injury. The injury was a known complication of cauterization, not a result of negligence.
VERDICT: A $588,351 California verdict was returned but was reduced to $483,351 because of the state cap on pain and suffering.
RELATED
Surgical excision of the most severe form of endometriosis
Sigmoid colon injury during hysterectomy
A 42-year-old woman had uterine fibroids that caused such heavy bleeding that she became anemic and required a transfusion. On June 26, she underwent laparoscopic-assisted supracervical hysterectomy performed by her primary ObGyn and an assisting ObGyn.
The next day, the patient developed pain and fever and her vital signs were unstable. The primary ObGyn called in a general surgeon. A CT scan showed a tear on the underside of the sigmoid colon. The general surgeon performed a laparotomy, resected the colon, and created a temporary colostomy. The colostomy reversal took place on September 25.
PATIENT'S CLAIM: The patient sued both ObGyns, alleging that they should have found the colon injury during surgery. The primary ObGyn settled before trial and the case continued against the assisting ObGyn. It was undisputed that one or both of the physicians caused the tear, but that was not the patient’s claim. The patient alleged that negligence occurred when the injury was not intraoperatively detected. Had the injury been found during surgery, a general surgeon could have performed a primary repair, saving the patient from further surgery and colostomy. The patient claimed mental anguish and embarrassment from the colostomy. Her abdomen is still tender and she has significant scarring.
PHYSICIAN'S CLAIM: There was no negligence. Nothing was unusual about the nature of the procedure, and nothing unusual was seen intraoperatively that would have led them to search for an injury. They performed adequate and appropriate exploration before closing. The linear tear on the underside of the sigmoid colon was very inconspicuous in size, shape, and location, and was away from the operative area. The injury likely occurred during manipulation of the sigmoid colon, which generally has to be retracted before the uterus can be removed. Even if the injury had been found intraoperatively, a general surgeon would have had to convert to laparoscopy to repair the colon.
VERDICT: After a settlement was reached with the primary gynecologist, a Texas defense verdict was returned for the assisting gynecologist.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Brachial plexus injury: permanent disability
Brachial plexus injury: permanent disability
After concerning test results, a woman went to the hospital for induction of labor. During vaginal delivery, a shoulder dystocia was encountered. The baby was born within 60 seconds using the McRoberts maneuver and suprapubic pressure. The ObGyn charted mild shoulder dystocia.
The child has decreased mobility of his left arm. MRI studies and surgical findings confirmed brachial plexus rupture and avulsion at C5-C7. Despite nerve grafting, the child has a significant disability to his left arm and shoulder.
PARENT'S CLAIM: The ObGyn negligently applied excessive lateral traction, improperly used lateral traction as a maneuver, and instructed the mother to continuously push.
PHYSICIAN'S DEFENSE: Shoulder dystocia was properly diagnosed and resolved using standard maneuvers. Traction and pushing are needed during shoulder dystocia management to determine whether the maneuvers are successful. Brachial plexus injuries can occur because of the normal forces of labor and delivery.
VERDICT: An Illinois defense verdict was returned.
Mother claims PTSD after twin's stillbirth
Expecting twins, a 23-year-old woman at 33.5 weeks' gestation reported pain. The ObGyn noted that her cervix was 4-cm dilated, 1 twin was in breech position, and that labor had begun. He recommended that the patient go to the hospital for cesarean delivery but told her that she could go home, shower, and gather her belongings first. When the mother arrived at the hospital 2.5 hours later, the fetal heart-rate (FHR) monitor indicated that one twin's heart was not active. An emergency cesarean delivery was performed. One twin was safely born, but the other died.
PARENT'S CLAIM: The ObGyn failed to properly address the onset of labor. The twin died because of compression of the umbilical cord. If the mother had gone directly to the hospital, FHR abnormalities would have been apparent and timely intervention could have been taken.
The stillbirth caused the onset of severe emotional distress in the mother leading to posttraumatic stress disorder (PTSD). She had extensive counseling. Her psychologist reported that the patient also suffered from complex grief disorder.
PHYSICIAN'S DEFENSE: The ObGyn's actions did not cause the injury. The twins' hearts were monitored at the last prenatal examination and were normal. It was appropriate for the ObGyn to allow the patient to return home before going to the hospital; the situation was urgent but not emergent. The stillbirth resulted from chorioamnionitis, a microscopic condition that is difficult to detect. A pathologist confirmed the diagnosis after examining the placenta.
The extent of the patient's grief was contested. An expert psychiatrist reported that complex grief disorder is not a recognized medical condition, and that, upon his examination, the patient did not exhibit PTSD symptoms.
VERDICT: A New York defense verdict was returned.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Brachial plexus injury: permanent disability
After concerning test results, a woman went to the hospital for induction of labor. During vaginal delivery, a shoulder dystocia was encountered. The baby was born within 60 seconds using the McRoberts maneuver and suprapubic pressure. The ObGyn charted mild shoulder dystocia.
The child has decreased mobility of his left arm. MRI studies and surgical findings confirmed brachial plexus rupture and avulsion at C5-C7. Despite nerve grafting, the child has a significant disability to his left arm and shoulder.
PARENT'S CLAIM: The ObGyn negligently applied excessive lateral traction, improperly used lateral traction as a maneuver, and instructed the mother to continuously push.
PHYSICIAN'S DEFENSE: Shoulder dystocia was properly diagnosed and resolved using standard maneuvers. Traction and pushing are needed during shoulder dystocia management to determine whether the maneuvers are successful. Brachial plexus injuries can occur because of the normal forces of labor and delivery.
VERDICT: An Illinois defense verdict was returned.
Mother claims PTSD after twin's stillbirth
Expecting twins, a 23-year-old woman at 33.5 weeks' gestation reported pain. The ObGyn noted that her cervix was 4-cm dilated, 1 twin was in breech position, and that labor had begun. He recommended that the patient go to the hospital for cesarean delivery but told her that she could go home, shower, and gather her belongings first. When the mother arrived at the hospital 2.5 hours later, the fetal heart-rate (FHR) monitor indicated that one twin's heart was not active. An emergency cesarean delivery was performed. One twin was safely born, but the other died.
PARENT'S CLAIM: The ObGyn failed to properly address the onset of labor. The twin died because of compression of the umbilical cord. If the mother had gone directly to the hospital, FHR abnormalities would have been apparent and timely intervention could have been taken.
The stillbirth caused the onset of severe emotional distress in the mother leading to posttraumatic stress disorder (PTSD). She had extensive counseling. Her psychologist reported that the patient also suffered from complex grief disorder.
PHYSICIAN'S DEFENSE: The ObGyn's actions did not cause the injury. The twins' hearts were monitored at the last prenatal examination and were normal. It was appropriate for the ObGyn to allow the patient to return home before going to the hospital; the situation was urgent but not emergent. The stillbirth resulted from chorioamnionitis, a microscopic condition that is difficult to detect. A pathologist confirmed the diagnosis after examining the placenta.
The extent of the patient's grief was contested. An expert psychiatrist reported that complex grief disorder is not a recognized medical condition, and that, upon his examination, the patient did not exhibit PTSD symptoms.
VERDICT: A New York defense verdict was returned.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Brachial plexus injury: permanent disability
After concerning test results, a woman went to the hospital for induction of labor. During vaginal delivery, a shoulder dystocia was encountered. The baby was born within 60 seconds using the McRoberts maneuver and suprapubic pressure. The ObGyn charted mild shoulder dystocia.
The child has decreased mobility of his left arm. MRI studies and surgical findings confirmed brachial plexus rupture and avulsion at C5-C7. Despite nerve grafting, the child has a significant disability to his left arm and shoulder.
PARENT'S CLAIM: The ObGyn negligently applied excessive lateral traction, improperly used lateral traction as a maneuver, and instructed the mother to continuously push.
PHYSICIAN'S DEFENSE: Shoulder dystocia was properly diagnosed and resolved using standard maneuvers. Traction and pushing are needed during shoulder dystocia management to determine whether the maneuvers are successful. Brachial plexus injuries can occur because of the normal forces of labor and delivery.
VERDICT: An Illinois defense verdict was returned.
Mother claims PTSD after twin's stillbirth
Expecting twins, a 23-year-old woman at 33.5 weeks' gestation reported pain. The ObGyn noted that her cervix was 4-cm dilated, 1 twin was in breech position, and that labor had begun. He recommended that the patient go to the hospital for cesarean delivery but told her that she could go home, shower, and gather her belongings first. When the mother arrived at the hospital 2.5 hours later, the fetal heart-rate (FHR) monitor indicated that one twin's heart was not active. An emergency cesarean delivery was performed. One twin was safely born, but the other died.
PARENT'S CLAIM: The ObGyn failed to properly address the onset of labor. The twin died because of compression of the umbilical cord. If the mother had gone directly to the hospital, FHR abnormalities would have been apparent and timely intervention could have been taken.
The stillbirth caused the onset of severe emotional distress in the mother leading to posttraumatic stress disorder (PTSD). She had extensive counseling. Her psychologist reported that the patient also suffered from complex grief disorder.
PHYSICIAN'S DEFENSE: The ObGyn's actions did not cause the injury. The twins' hearts were monitored at the last prenatal examination and were normal. It was appropriate for the ObGyn to allow the patient to return home before going to the hospital; the situation was urgent but not emergent. The stillbirth resulted from chorioamnionitis, a microscopic condition that is difficult to detect. A pathologist confirmed the diagnosis after examining the placenta.
The extent of the patient's grief was contested. An expert psychiatrist reported that complex grief disorder is not a recognized medical condition, and that, upon his examination, the patient did not exhibit PTSD symptoms.
VERDICT: A New York defense verdict was returned.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Unnecessary laparotomy: $625,000 award
Unnecessary laparotomy: $625,000 award
A woman in her 20s reported cramping and rectal bleeding to her ObGyn. Pelvic and rectal examinations were normal. Her family physician's exam and a gastroenterologist's rectal exam and colonoscopy were all normal. A radiologist (Dr. A) identified a 3-cm by 6-cm mass on transvaginal ultrasonography. A computed tomography (CT) scan read by another radiologist (Dr. B) confirmed the mass. After receiving the radiologists' reports, the ObGyn told the patient that she had a small tumor that needed immediate removal. No mass was found during exploratory laparotomy.
Three years postsurgery, after trying to conceive, the patient underwent exploratory laparoscopy to evaluate her fallopian tubes. A surgeon found significant pelvic adhesions occluding the left fallopian tube. He lysed the adhesions and resected the left fallopian tube.
PATIENT'S CLAIM: The patient sued the ObGyn and both radiologists, alleging that the unnecessary surgeries resulted in reduced fertility.
Postoperatively, the ObGyn told the patient that the surgery, performed for "nothing," was the radiologists' fault, and that she would have no trouble conceiving. He later blamed her fallopian tube damage on a diagnosis of chlamydia that was successfully treated years earlier with no evidence of reinfection.
The ObGyn disregarded Dr. A's recommendation for a CT scan with rectal contrast; instead he ordered oral contrast. The ObGyn also ignored Dr. B's recommendation for magnetic resonance imaging (MRI).
The mass misidentified by the radiologists was described in 2 different places on the anterior wall of the bowel, both outside the purview of a gynecologist. Given the uncertain diagnosis, referral to a general surgeon was mandated; exploratory laparotomy was not indicated. The ObGyn never referred the patient to a general surgeon for evaluation or sent records or films to the surgeon whom he claimed to have consulted before surgery. The general surgeon denied that any such discussion occurred. The surgeon's first contact with the patient occurred when he was called into the operating room because the ObGyn could not find a mass; the patient was under anesthesia and her abdomen was open.
DEFENDANTS' DEFENSE: The ObGyn claimed that he had developed a plan with the general surgeon before surgery: if the mass was a uterine fibroid, he would remove it, but if the mass was mesenteric, the surgeon would operate.
The ObGyn was justified in performing surgery based on the patient's complaints and the radiologists' findings.
The radiologists contended that, since neither of them expressed certainty, both requested further studies, and neither suggested surgery, their treatment was consistent with the standard of care.
VERDICT: A $625,000 Pennsylvania verdict was returned, finding the ObGyn 100% liable.
Both ureters injured during TAH
A 49-year-old woman underwent total abdominal hysterectomy (TAH) for removal of a uterine fibroid performed by her gynecologist and a surgical assistant. The patient had limited urine output immediately after surgery, no urinary output overnight, and abdominal pain. The gynecologist ordered a urology consultation. A CT scan showed bilateral ureteral obstruction; an interventional radiology study confirmed a blockage due to severance of both ureters. A nephrostomy was performed and, 6 weeks later, the ureters were reimplanted.
PATIENT'S CLAIM: The severing of both ureters was a negligent surgical error. While the risk of injuring a single ureter is a recognized complication of TAH, it is unacceptable that both ureters were severed.
DEFENDANTS' DEFENSE: Standard of care was met: bilateral ureteral injury is a known risk of TAH. Before surgery, the patient was fully informed of the risks and signed a consent agreement. There was no intraoperative evidence that the ureters had been damaged. The injuries were detected as soon as medically possible and timely and successfully treated.
VERDICT: An Illinois defense verdict was returned.
Failure to detect breast cancer: $21.9M verdict against radiologist
A woman went to a diagnostic imaging service for ultrasonography (US) after an earlier US was suspicious for a breast mass. She had a history of left breast pain and swelling that had been treated with antibiotics. The radiologist interpreted the second ultrasound as showing no masses; he noted skin thickening and a lymph node abnormality.
Nine months after initial US, the patient had a breast biopsy performed in another state. She was diagnosed with stage 3 breast cancer.
PATIENT'S CLAIM: The radiologist failed to properly interpret the findings of the second ultrasound.
PHYSICIAN'S DEFENSE: The radiologist contended that he was not liable because the technologist failed to place the transducer over the breast lump. The first US films were not provided for comparison.
VERDICT: A $21.9 million Florida verdict was returned.
Vesicovaginal fistula after hysterectomy
A 39-year-old woman with a history of 4 cesarean deliveries and an enlarged fibroid uterus underwent TAH. She subsequently developed urinary incontinence.
PATIENT'S CLAIM: The ObGyn used an inappropriate dissection technique to remove the uterus, causing a bladder injury. He also sutured the vaginal cuff to the bladder, causing the formation of a vesicovaginal fistula. Repair surgeries were unsuccessful and the patient now is permanently incontinent.
PHYSICIAN'S DEFENSE: The standard of care was met. The patient had a pre-existing bladder weakness due to the size of her uterus and prior surgeries. The bladder injury is a known complication of the surgery. The vaginal cuff adhered to the bladder due to postsurgical scarring or fibrosis.
VERDICT: A Michigan defense verdict was returned.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Unnecessary laparotomy: $625,000 award
A woman in her 20s reported cramping and rectal bleeding to her ObGyn. Pelvic and rectal examinations were normal. Her family physician's exam and a gastroenterologist's rectal exam and colonoscopy were all normal. A radiologist (Dr. A) identified a 3-cm by 6-cm mass on transvaginal ultrasonography. A computed tomography (CT) scan read by another radiologist (Dr. B) confirmed the mass. After receiving the radiologists' reports, the ObGyn told the patient that she had a small tumor that needed immediate removal. No mass was found during exploratory laparotomy.
Three years postsurgery, after trying to conceive, the patient underwent exploratory laparoscopy to evaluate her fallopian tubes. A surgeon found significant pelvic adhesions occluding the left fallopian tube. He lysed the adhesions and resected the left fallopian tube.
PATIENT'S CLAIM: The patient sued the ObGyn and both radiologists, alleging that the unnecessary surgeries resulted in reduced fertility.
Postoperatively, the ObGyn told the patient that the surgery, performed for "nothing," was the radiologists' fault, and that she would have no trouble conceiving. He later blamed her fallopian tube damage on a diagnosis of chlamydia that was successfully treated years earlier with no evidence of reinfection.
The ObGyn disregarded Dr. A's recommendation for a CT scan with rectal contrast; instead he ordered oral contrast. The ObGyn also ignored Dr. B's recommendation for magnetic resonance imaging (MRI).
The mass misidentified by the radiologists was described in 2 different places on the anterior wall of the bowel, both outside the purview of a gynecologist. Given the uncertain diagnosis, referral to a general surgeon was mandated; exploratory laparotomy was not indicated. The ObGyn never referred the patient to a general surgeon for evaluation or sent records or films to the surgeon whom he claimed to have consulted before surgery. The general surgeon denied that any such discussion occurred. The surgeon's first contact with the patient occurred when he was called into the operating room because the ObGyn could not find a mass; the patient was under anesthesia and her abdomen was open.
DEFENDANTS' DEFENSE: The ObGyn claimed that he had developed a plan with the general surgeon before surgery: if the mass was a uterine fibroid, he would remove it, but if the mass was mesenteric, the surgeon would operate.
The ObGyn was justified in performing surgery based on the patient's complaints and the radiologists' findings.
The radiologists contended that, since neither of them expressed certainty, both requested further studies, and neither suggested surgery, their treatment was consistent with the standard of care.
VERDICT: A $625,000 Pennsylvania verdict was returned, finding the ObGyn 100% liable.
Both ureters injured during TAH
A 49-year-old woman underwent total abdominal hysterectomy (TAH) for removal of a uterine fibroid performed by her gynecologist and a surgical assistant. The patient had limited urine output immediately after surgery, no urinary output overnight, and abdominal pain. The gynecologist ordered a urology consultation. A CT scan showed bilateral ureteral obstruction; an interventional radiology study confirmed a blockage due to severance of both ureters. A nephrostomy was performed and, 6 weeks later, the ureters were reimplanted.
PATIENT'S CLAIM: The severing of both ureters was a negligent surgical error. While the risk of injuring a single ureter is a recognized complication of TAH, it is unacceptable that both ureters were severed.
DEFENDANTS' DEFENSE: Standard of care was met: bilateral ureteral injury is a known risk of TAH. Before surgery, the patient was fully informed of the risks and signed a consent agreement. There was no intraoperative evidence that the ureters had been damaged. The injuries were detected as soon as medically possible and timely and successfully treated.
VERDICT: An Illinois defense verdict was returned.
Failure to detect breast cancer: $21.9M verdict against radiologist
A woman went to a diagnostic imaging service for ultrasonography (US) after an earlier US was suspicious for a breast mass. She had a history of left breast pain and swelling that had been treated with antibiotics. The radiologist interpreted the second ultrasound as showing no masses; he noted skin thickening and a lymph node abnormality.
Nine months after initial US, the patient had a breast biopsy performed in another state. She was diagnosed with stage 3 breast cancer.
PATIENT'S CLAIM: The radiologist failed to properly interpret the findings of the second ultrasound.
PHYSICIAN'S DEFENSE: The radiologist contended that he was not liable because the technologist failed to place the transducer over the breast lump. The first US films were not provided for comparison.
VERDICT: A $21.9 million Florida verdict was returned.
Vesicovaginal fistula after hysterectomy
A 39-year-old woman with a history of 4 cesarean deliveries and an enlarged fibroid uterus underwent TAH. She subsequently developed urinary incontinence.
PATIENT'S CLAIM: The ObGyn used an inappropriate dissection technique to remove the uterus, causing a bladder injury. He also sutured the vaginal cuff to the bladder, causing the formation of a vesicovaginal fistula. Repair surgeries were unsuccessful and the patient now is permanently incontinent.
PHYSICIAN'S DEFENSE: The standard of care was met. The patient had a pre-existing bladder weakness due to the size of her uterus and prior surgeries. The bladder injury is a known complication of the surgery. The vaginal cuff adhered to the bladder due to postsurgical scarring or fibrosis.
VERDICT: A Michigan defense verdict was returned.
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.
Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.
Unnecessary laparotomy: $625,000 award
A woman in her 20s reported cramping and rectal bleeding to her ObGyn. Pelvic and rectal examinations were normal. Her family physician's exam and a gastroenterologist's rectal exam and colonoscopy were all normal. A radiologist (Dr. A) identified a 3-cm by 6-cm mass on transvaginal ultrasonography. A computed tomography (CT) scan read by another radiologist (Dr. B) confirmed the mass. After receiving the radiologists' reports, the ObGyn told the patient that she had a small tumor that needed immediate removal. No mass was found during exploratory laparotomy.
Three years postsurgery, after trying to conceive, the patient underwent exploratory laparoscopy to evaluate her fallopian tubes. A surgeon found significant pelvic adhesions occluding the left fallopian tube. He lysed the adhesions and resected the left fallopian tube.
PATIENT'S CLAIM: The patient sued the ObGyn and both radiologists, alleging that the unnecessary surgeries resulted in reduced fertility.
Postoperatively, the ObGyn told the patient that the surgery, performed for "nothing," was the radiologists' fault, and that she would have no trouble conceiving. He later blamed her fallopian tube damage on a diagnosis of chlamydia that was successfully treated years earlier with no evidence of reinfection.
The ObGyn disregarded Dr. A's recommendation for a CT scan with rectal contrast; instead he ordered oral contrast. The ObGyn also ignored Dr. B's recommendation for magnetic resonance imaging (MRI).
The mass misidentified by the radiologists was described in 2 different places on the anterior wall of the bowel, both outside the purview of a gynecologist. Given the uncertain diagnosis, referral to a general surgeon was mandated; exploratory laparotomy was not indicated. The ObGyn never referred the patient to a general surgeon for evaluation or sent records or films to the surgeon whom he claimed to have consulted before surgery. The general surgeon denied that any such discussion occurred. The surgeon's first contact with the patient occurred when he was called into the operating room because the ObGyn could not find a mass; the patient was under anesthesia and her abdomen was open.
DEFENDANTS' DEFENSE: The ObGyn claimed that he had developed a plan with the general surgeon before surgery: if the mass was a uterine fibroid, he would remove it, but if the mass was mesenteric, the surgeon would operate.
The ObGyn was justified in performing surgery based on the patient's complaints and the radiologists' findings.
The radiologists contended that, since neither of them expressed certainty, both requested further studies, and neither suggested surgery, their treatment was consistent with the standard of care.
VERDICT: A $625,000 Pennsylvania verdict was returned, finding the ObGyn 100% liable.
Both ureters injured during TAH
A 49-year-old woman underwent total abdominal hysterectomy (TAH) for removal of a uterine fibroid performed by her gynecologist and a surgical assistant. The patient had limited urine output immediately after surgery, no urinary output overnight, and abdominal pain. The gynecologist ordered a urology consultation. A CT scan showed bilateral ureteral obstruction; an interventional radiology study confirmed a blockage due to severance of both ureters. A nephrostomy was performed and, 6 weeks later, the ureters were reimplanted.
PATIENT'S CLAIM: The severing of both ureters was a negligent surgical error. While the risk of injuring a single ureter is a recognized complication of TAH, it is unacceptable that both ureters were severed.
DEFENDANTS' DEFENSE: Standard of care was met: bilateral ureteral injury is a known risk of TAH. Before surgery, the patient was fully informed of the risks and signed a consent agreement. There was no intraoperative evidence that the ureters had been damaged. The injuries were detected as soon as medically possible and timely and successfully treated.
VERDICT: An Illinois defense verdict was returned.
Failure to detect breast cancer: $21.9M verdict against radiologist
A woman went to a diagnostic imaging service for ultrasonography (US) after an earlier US was suspicious for a breast mass. She had a history of left breast pain and swelling that had been treated with antibiotics. The radiologist interpreted the second ultrasound as showing no masses; he noted skin thickening and a lymph node abnormality.
Nine months after initial US, the patient had a breast biopsy performed in another state. She was diagnosed with stage 3 breast cancer.
PATIENT'S CLAIM: The radiologist failed to properly interpret the findings of the second ultrasound.
PHYSICIAN'S DEFENSE: The radiologist contended that he was not liable because the technologist failed to place the transducer over the breast lump. The first US films were not provided for comparison.
VERDICT: A $21.9 million Florida verdict was returned.
Vesicovaginal fistula after hysterectomy
A 39-year-old woman with a history of 4 cesarean deliveries and an enlarged fibroid uterus underwent TAH. She subsequently developed urinary incontinence.
PATIENT'S CLAIM: The ObGyn used an inappropriate dissection technique to remove the uterus, causing a bladder injury. He also sutured the vaginal cuff to the bladder, causing the formation of a vesicovaginal fistula. Repair surgeries were unsuccessful and the patient now is permanently incontinent.
PHYSICIAN'S DEFENSE: The standard of care was met. The patient had a pre-existing bladder weakness due to the size of her uterus and prior surgeries. The bladder injury is a known complication of the surgery. The vaginal cuff adhered to the bladder due to postsurgical scarring or fibrosis.
VERDICT: A Michigan defense verdict was returned.
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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