Medicolegal Issues

Uterine rupture, child stillborn: $3.8M net award
At 35 weeks' gestation, a woman went to the emergency department (ED) with abdominal pain, fast heartbeat, and irregular contractions. Her history included three cesarean deliveries, including one with a vertical incision. She was admitted, and a cesarean delivery was planned for the next day. After 8 hours, during which the patient’s condition worsened, an emergency cesarean delivery was undertaken. A full rupture of the uterus was found; the baby’s body had extruded into the mother’s abdomen. The child was stillborn.

PARENTS’ CLAIM The stillbirth could have been avoided if the nurses had communicated the mother’s worsening condition to the physicians.

DEFENDANTS’ DEFENSE After the hospital and physicians settled prior to trial, the case continued against the nurse in charge of the mother’s care and the nurse-staffing group. Negligence was denied; all protocols were followed.

VERDICT A $2.9 million Illinois verdict was returned. With a $900,000 settlement from the hospital and physicians, the net award was $3.8 million.

_______________

Where did rare strep A infection come from?
A 36-year-old woman reported heavy vaginal bleeding to her ObGyn. She underwent endometrial ablation in her physician’s office.

The next day, the woman called the office to report abdominal pain. She was told to stop the medication she was taking, and if the pain continued to the next day, to go to an ED. The next day, the patient went to the ED and was found to be in septic shock. During emergency laparotomy, 50 mL of purulent fluid were drained and an emergency hysterectomy was performed. Three days later, the patient died from pulmonary arrest caused by toxic shock syndrome. An autopsy revealed that the patient’s sepsis was caused by group A streptococci (GAS) infection.

ESTATE’S CLAIM The patient was not a proper candidate for endometrial ablation because of her history of chronic cervical infection. The ObGyn perforated the cervix during the procedure and tried to conceal it. At autopsy, bone wax was found in the rectal lumen that had been used to cover up damage to the cervix. The ObGyn introduced GAS bacteria into the patient’s system. The ObGyn’s staff failed to ask the proper questions when she called the day after the procedure. She should have been told to go directly to the ED.

DEFENDANTS’ DEFENSE The ObGyn did not perforate the cervix or uterus during the procedure. GAS infection is so rare that it would have been difficult to foresee or diagnose. Potentially, the patient had a chronic
cervical infection before ablation.

VERDICT A Texas defense verdict was returned.

_______________

DURING INSERTION, IUD PERFORATES UTERINE WALL; LATER FOUND BELOW LIVER
On July 21, a 46-year-old woman went to an ObGyn for placement of an intrauterine device (IUD). Shortly after the ObGyn inserted the levonorgestrel-releasing intrauterine system (Mirena, Bayer HealthCare), the patient reported severe pelvic and abdominal pain. On July 26, the patient underwent surgical removal of the IUD.

She was discharged on July 29 but continued to report pain. She was readmitted to the hospital the next day and treated for pain. She was bed ridden for 3 weeks after IUD-removal surgery, and had a 3-month recovery before feeling pain free.

PATIENT’S CLAIM The ObGyn was negligent in perforating the patient’s uterine wall during IUD insertion, causing the device to ultimately migrate under the patient’s liver.

DEFENDANTS’ DEFENSE Uterine perforation is a known complication of IUD insertion. The IUD escaped from the patient’s uterus at a later time and not during the insertion procedure.

VERDICT A Florida verdict of $208,839 was returned; the amount was reduced to $161,058 because the medical expenses were written off by the health-care providers.

_______________

Was travel appropriate for this pregnant woman?
A woman with a history of two premature deliveries and one miscarriage became pregnant again. She received prenatal care at an Army hospital. She traveled to Spain, where the baby was born at 31 weeks’ gestation. The baby required treatment in a neonatal intensive care unit (NICU) for 17 days. The child has cerebral palsy, with tetraplegia of all four extremities. She cannot walk without assistance and suffers severe cognitive and vision impairment.

PARENTS’ CLAIM The ObGyn at the Army hospital should not have approved the mother’s request for travel; he did so, despite knowing that the mother was at high risk for premature birth. The military medical hospital to which she was assigned in Spain could not manage a high-risk pregnancy, didn’t have a NICU, and didn’t have specialists to treat premature infants.

DEFENDANTS’ DEFENSE The ObGyn argued that he did not have access to the medical records showing the mother’s history. The patient countered that the ObGyn did indeed have the patient’s records, as he had discussed them with her.

VERDICT A $10,409,700 California verdict was returned against the ObGyn and the government facility.

_______________

Triple-negative BrCa not diagnosed until metastasized: $5.2M
After finding lumps in both breasts, a woman in her 30s saw a nurse practitioner (NP) at an Army hospital. A radiologist reported no mass in the right breast and multiple benign-appearing anechoic lesions in the left breast after bilateral mammography and ultrasonography (US) in July 2008. The Chief of Mammography Services recommended referral to a breast surgeon, but the patient never received the letter. It was placed in her mammography file, not in the treatment file.

In November 2008, the patient returned to the clinic. Bilateral diagnostic mammography and US were ordered, but for unknown reasons, cancelled. US of the left breast was interpreted as benign in January 2009.

After imaging in March 2010, followed by a needle biopsy of the right breast, a radiologist reported finding intermediate-grade infiltrating ductal carcinoma.

The patient sought care outside the military medical system at a large university hospital. In April 2010, stage 3 triple-negative invasive ductal carcinoma (IDC) was identified. The patient underwent chemotherapy, a double mastectomy, removal of 21 lymph nodes, and breast reconstruction. She was given a 60% chance of recurrence in 5–7 years.

PATIENT’S CLAIM It was negligent to not inform her of imaging results. Biopsy should have been performed in 2008, when the IDC was likely at stage 1; treatment would have been far less aggressive. Electronic medical records showed that the 2008 mammography and US results had been “signed off” by an NP at the clinic.

DEFENDANTS’ DEFENSE While unable to concede liability, the government agency did not contest the point.

VERDICT A $5.2 million Tennessee federal court bench verdict was returned, citing failures in communication, poor and improper record keeping and retention, failure to follow-up, and an unexplained cancellation of a medical order.

_______________

Woman dies from cervical cancer: $2.3M
In 2001, a 41-year-old woman had abnormal Pap smear results but her gynecologist did not order more testing. The patient was told to return in 3 months, but she did not return until 2007—reporting abnormal bleeding, vaginal discharge, and pain. Her Pap results were normal, however, and the gynecologist did not order further testing. In 2009, the patient was found to have advanced cervical cancer. She died 2 years later.

ESTATE’S CLAIM Further testing should have been ordered in 2001, which would have likely revealed dysplasia, which can lead to cancer. The laboratory incorrectly interpreted the 2007 Pap test; if the results had been properly reported, additional testing could have been ordered.

DEFENDANTS’ DEFENSE The laboratory and patient’s estate settled for a confidential amount before trial. The gynecologist denied negligence.

VERDICT A New Jersey jury found the gynecologist 40% at fault for his actions in 2007. The jury found the laboratory 50% at fault, and the patient 10% at fault. A gross verdict of $2.33 million was returned.

_______________
 

Bowel injury after cesarean delivery; mother dies of sepsis
At 40 4/7 weeks' gestation, a 37-year-old woman gave birth to a healthy child by cesarean delivery. The next day, the patient had an elevated white blood cell (WBC) count with a left shift, her abdomen was tympanic but soft, and she was passing flatus and belching. The ObGyn ordered a Fleet enema; only flatus was released. A covering ObGyn ordered an abdominal radiograph, which the radiologist reported as showing postoperative ileus and mild constipation. The patient was given a second Fleet enema the next day, resulting in watery stool. She vomited 300 mL of dark green fluid.

After a rectal tube was placed 2 days later, one hard brown stool and several brown, pasty, loose, and liquid stools were returned. She vomited several times that day, and was found to have hypoactive bowel sounds with continued tympanic quality in the upper quadrants. Laboratory testing revealed continued elevated WBC count with left shift. The next day, she had hypoactive bowel sounds with brown liquid stools. Later that morning, she was able to tolerate clear liquids. The ObGyn decided to discharge her home with instructions to continue on a clear liquid diet for 2 more days before advancing her diet.

The day after discharge, she was found unresponsive at home. She was taken to the hospital, but resuscitation attempts failed. She died. An autopsy revealed that the cause of death was sepsis.

ESTATE’S CLAIM The ObGyn was negligent in failing to diagnose and treat a postoperative intra-abdominal infection caused by bowel perforation. A surgical consult should have been obtained. The woman was prematurely discharged. The radiologist failed to report the presence of free air on the abdominal x-ray.

DEFENDANTS’ DEFENSE The case was settled during trial.

VERDICT A $1 million Maryland settlement was reached. 

_______________

Right ureter injury detected and repaired
During laparoscopic-assisted vaginal hysterectomy, the ObGyn detected and repaired an injury to the right ureter. The patient’s recovery was delayed by the injury.

PATIENT’S CLAIM The ObGyn was negligent in using a Kleppinger bipolar cauterizing instrument to cauterize the vaginal cuff. Thermal overspray from the instrument or the instrument itself damaged the ureter. The ObGyn was also negligent in not performing diagnostic cystoscopy to confirm patency of the ureter after the repair was made.

PHYSICIAN’S DEFENSE Ureter injury is a known risk of the procedure. All procedures were performed according to protocol.

VERDICT A Florida defense verdict was returned.

_______________

Failure to detect inflammatory BrCa; woman dies
A 42-year-old woman underwent mammography in February 2002 after reporting pain, discoloration, inflammation, and swelling in her left breast. The radiologist who interpreted the mammography suggested a biopsy for a differential diagnosis of mastitis or inflammatory carcinoma. The biopsy results were negative.

The patient’s symptoms persisted, and she underwent US in late May 2002. Another radiologist interpreted the US, noting that the patient could not tolerate compression, which led to less than optimal evaluation. The radiologist suggested that mastitis was the likely cause of the patient’s symptoms.

The patient then consulted a surgeon, who ordered mammography and magnetic resonance imaging (MRI) followed by biopsy, which indicated cancer. The patient underwent a mastectomy but metastasis had already occurred. She died at age 50 prior to the trial.

ESTATE’S CLAIM If the cancer had been diagnosed earlier, the outcome would have been better. Both radiologists misinterpreted the mammographies.

DEFENDANTS’ DEFENSE The mammographies had been properly interpreted. Any missed diagnosis would not have impacted the outcome due to the type of cancer. The scans had been released to the patient, but were subsequently lost; an adverse interference instruction was given to the jury.

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 on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Uterine rupture, child stillborn: $3.8M net award
At 35 weeks' gestation, a woman went to the emergency department (ED) with abdominal pain, fast heartbeat, and irregular contractions. Her history included three cesarean deliveries, including one with a vertical incision. She was admitted, and a cesarean delivery was planned for the next day. After 8 hours, during which the patient’s condition worsened, an emergency cesarean delivery was undertaken. A full rupture of the uterus was found; the baby’s body had extruded into the mother’s abdomen. The child was stillborn.

PARENTS’ CLAIM The stillbirth could have been avoided if the nurses had communicated the mother’s worsening condition to the physicians.

DEFENDANTS’ DEFENSE After the hospital and physicians settled prior to trial, the case continued against the nurse in charge of the mother’s care and the nurse-staffing group. Negligence was denied; all protocols were followed.

VERDICT A $2.9 million Illinois verdict was returned. With a $900,000 settlement from the hospital and physicians, the net award was $3.8 million.

_______________

Where did rare strep A infection come from?
A 36-year-old woman reported heavy vaginal bleeding to her ObGyn. She underwent endometrial ablation in her physician’s office.

The next day, the woman called the office to report abdominal pain. She was told to stop the medication she was taking, and if the pain continued to the next day, to go to an ED. The next day, the patient went to the ED and was found to be in septic shock. During emergency laparotomy, 50 mL of purulent fluid were drained and an emergency hysterectomy was performed. Three days later, the patient died from pulmonary arrest caused by toxic shock syndrome. An autopsy revealed that the patient’s sepsis was caused by group A streptococci (GAS) infection.

ESTATE’S CLAIM The patient was not a proper candidate for endometrial ablation because of her history of chronic cervical infection. The ObGyn perforated the cervix during the procedure and tried to conceal it. At autopsy, bone wax was found in the rectal lumen that had been used to cover up damage to the cervix. The ObGyn introduced GAS bacteria into the patient’s system. The ObGyn’s staff failed to ask the proper questions when she called the day after the procedure. She should have been told to go directly to the ED.

DEFENDANTS’ DEFENSE The ObGyn did not perforate the cervix or uterus during the procedure. GAS infection is so rare that it would have been difficult to foresee or diagnose. Potentially, the patient had a chronic
cervical infection before ablation.

VERDICT A Texas defense verdict was returned.

_______________

DURING INSERTION, IUD PERFORATES UTERINE WALL; LATER FOUND BELOW LIVER
On July 21, a 46-year-old woman went to an ObGyn for placement of an intrauterine device (IUD). Shortly after the ObGyn inserted the levonorgestrel-releasing intrauterine system (Mirena, Bayer HealthCare), the patient reported severe pelvic and abdominal pain. On July 26, the patient underwent surgical removal of the IUD.

She was discharged on July 29 but continued to report pain. She was readmitted to the hospital the next day and treated for pain. She was bed ridden for 3 weeks after IUD-removal surgery, and had a 3-month recovery before feeling pain free.

PATIENT’S CLAIM The ObGyn was negligent in perforating the patient’s uterine wall during IUD insertion, causing the device to ultimately migrate under the patient’s liver.

DEFENDANTS’ DEFENSE Uterine perforation is a known complication of IUD insertion. The IUD escaped from the patient’s uterus at a later time and not during the insertion procedure.

VERDICT A Florida verdict of $208,839 was returned; the amount was reduced to $161,058 because the medical expenses were written off by the health-care providers.

_______________

Was travel appropriate for this pregnant woman?
A woman with a history of two premature deliveries and one miscarriage became pregnant again. She received prenatal care at an Army hospital. She traveled to Spain, where the baby was born at 31 weeks’ gestation. The baby required treatment in a neonatal intensive care unit (NICU) for 17 days. The child has cerebral palsy, with tetraplegia of all four extremities. She cannot walk without assistance and suffers severe cognitive and vision impairment.

PARENTS’ CLAIM The ObGyn at the Army hospital should not have approved the mother’s request for travel; he did so, despite knowing that the mother was at high risk for premature birth. The military medical hospital to which she was assigned in Spain could not manage a high-risk pregnancy, didn’t have a NICU, and didn’t have specialists to treat premature infants.

DEFENDANTS’ DEFENSE The ObGyn argued that he did not have access to the medical records showing the mother’s history. The patient countered that the ObGyn did indeed have the patient’s records, as he had discussed them with her.

VERDICT A $10,409,700 California verdict was returned against the ObGyn and the government facility.

_______________

Triple-negative BrCa not diagnosed until metastasized: $5.2M
After finding lumps in both breasts, a woman in her 30s saw a nurse practitioner (NP) at an Army hospital. A radiologist reported no mass in the right breast and multiple benign-appearing anechoic lesions in the left breast after bilateral mammography and ultrasonography (US) in July 2008. The Chief of Mammography Services recommended referral to a breast surgeon, but the patient never received the letter. It was placed in her mammography file, not in the treatment file.

In November 2008, the patient returned to the clinic. Bilateral diagnostic mammography and US were ordered, but for unknown reasons, cancelled. US of the left breast was interpreted as benign in January 2009.

After imaging in March 2010, followed by a needle biopsy of the right breast, a radiologist reported finding intermediate-grade infiltrating ductal carcinoma.

The patient sought care outside the military medical system at a large university hospital. In April 2010, stage 3 triple-negative invasive ductal carcinoma (IDC) was identified. The patient underwent chemotherapy, a double mastectomy, removal of 21 lymph nodes, and breast reconstruction. She was given a 60% chance of recurrence in 5–7 years.

PATIENT’S CLAIM It was negligent to not inform her of imaging results. Biopsy should have been performed in 2008, when the IDC was likely at stage 1; treatment would have been far less aggressive. Electronic medical records showed that the 2008 mammography and US results had been “signed off” by an NP at the clinic.

DEFENDANTS’ DEFENSE While unable to concede liability, the government agency did not contest the point.

VERDICT A $5.2 million Tennessee federal court bench verdict was returned, citing failures in communication, poor and improper record keeping and retention, failure to follow-up, and an unexplained cancellation of a medical order.

_______________

Woman dies from cervical cancer: $2.3M
In 2001, a 41-year-old woman had abnormal Pap smear results but her gynecologist did not order more testing. The patient was told to return in 3 months, but she did not return until 2007—reporting abnormal bleeding, vaginal discharge, and pain. Her Pap results were normal, however, and the gynecologist did not order further testing. In 2009, the patient was found to have advanced cervical cancer. She died 2 years later.

ESTATE’S CLAIM Further testing should have been ordered in 2001, which would have likely revealed dysplasia, which can lead to cancer. The laboratory incorrectly interpreted the 2007 Pap test; if the results had been properly reported, additional testing could have been ordered.

DEFENDANTS’ DEFENSE The laboratory and patient’s estate settled for a confidential amount before trial. The gynecologist denied negligence.

VERDICT A New Jersey jury found the gynecologist 40% at fault for his actions in 2007. The jury found the laboratory 50% at fault, and the patient 10% at fault. A gross verdict of $2.33 million was returned.

_______________
 

Bowel injury after cesarean delivery; mother dies of sepsis
At 40 4/7 weeks' gestation, a 37-year-old woman gave birth to a healthy child by cesarean delivery. The next day, the patient had an elevated white blood cell (WBC) count with a left shift, her abdomen was tympanic but soft, and she was passing flatus and belching. The ObGyn ordered a Fleet enema; only flatus was released. A covering ObGyn ordered an abdominal radiograph, which the radiologist reported as showing postoperative ileus and mild constipation. The patient was given a second Fleet enema the next day, resulting in watery stool. She vomited 300 mL of dark green fluid.

After a rectal tube was placed 2 days later, one hard brown stool and several brown, pasty, loose, and liquid stools were returned. She vomited several times that day, and was found to have hypoactive bowel sounds with continued tympanic quality in the upper quadrants. Laboratory testing revealed continued elevated WBC count with left shift. The next day, she had hypoactive bowel sounds with brown liquid stools. Later that morning, she was able to tolerate clear liquids. The ObGyn decided to discharge her home with instructions to continue on a clear liquid diet for 2 more days before advancing her diet.

The day after discharge, she was found unresponsive at home. She was taken to the hospital, but resuscitation attempts failed. She died. An autopsy revealed that the cause of death was sepsis.

ESTATE’S CLAIM The ObGyn was negligent in failing to diagnose and treat a postoperative intra-abdominal infection caused by bowel perforation. A surgical consult should have been obtained. The woman was prematurely discharged. The radiologist failed to report the presence of free air on the abdominal x-ray.

DEFENDANTS’ DEFENSE The case was settled during trial.

VERDICT A $1 million Maryland settlement was reached. 

_______________

Right ureter injury detected and repaired
During laparoscopic-assisted vaginal hysterectomy, the ObGyn detected and repaired an injury to the right ureter. The patient’s recovery was delayed by the injury.

PATIENT’S CLAIM The ObGyn was negligent in using a Kleppinger bipolar cauterizing instrument to cauterize the vaginal cuff. Thermal overspray from the instrument or the instrument itself damaged the ureter. The ObGyn was also negligent in not performing diagnostic cystoscopy to confirm patency of the ureter after the repair was made.

PHYSICIAN’S DEFENSE Ureter injury is a known risk of the procedure. All procedures were performed according to protocol.

VERDICT A Florida defense verdict was returned.

_______________

Failure to detect inflammatory BrCa; woman dies
A 42-year-old woman underwent mammography in February 2002 after reporting pain, discoloration, inflammation, and swelling in her left breast. The radiologist who interpreted the mammography suggested a biopsy for a differential diagnosis of mastitis or inflammatory carcinoma. The biopsy results were negative.

The patient’s symptoms persisted, and she underwent US in late May 2002. Another radiologist interpreted the US, noting that the patient could not tolerate compression, which led to less than optimal evaluation. The radiologist suggested that mastitis was the likely cause of the patient’s symptoms.

The patient then consulted a surgeon, who ordered mammography and magnetic resonance imaging (MRI) followed by biopsy, which indicated cancer. The patient underwent a mastectomy but metastasis had already occurred. She died at age 50 prior to the trial.

ESTATE’S CLAIM If the cancer had been diagnosed earlier, the outcome would have been better. Both radiologists misinterpreted the mammographies.

DEFENDANTS’ DEFENSE The mammographies had been properly interpreted. Any missed diagnosis would not have impacted the outcome due to the type of cancer. The scans had been released to the patient, but were subsequently lost; an adverse interference instruction was given to the jury.

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 on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Uterine rupture, child stillborn: $3.8M net award
At 35 weeks' gestation, a woman went to the emergency department (ED) with abdominal pain, fast heartbeat, and irregular contractions. Her history included three cesarean deliveries, including one with a vertical incision. She was admitted, and a cesarean delivery was planned for the next day. After 8 hours, during which the patient’s condition worsened, an emergency cesarean delivery was undertaken. A full rupture of the uterus was found; the baby’s body had extruded into the mother’s abdomen. The child was stillborn.

PARENTS’ CLAIM The stillbirth could have been avoided if the nurses had communicated the mother’s worsening condition to the physicians.

DEFENDANTS’ DEFENSE After the hospital and physicians settled prior to trial, the case continued against the nurse in charge of the mother’s care and the nurse-staffing group. Negligence was denied; all protocols were followed.

VERDICT A $2.9 million Illinois verdict was returned. With a $900,000 settlement from the hospital and physicians, the net award was $3.8 million.

_______________

Where did rare strep A infection come from?
A 36-year-old woman reported heavy vaginal bleeding to her ObGyn. She underwent endometrial ablation in her physician’s office.

The next day, the woman called the office to report abdominal pain. She was told to stop the medication she was taking, and if the pain continued to the next day, to go to an ED. The next day, the patient went to the ED and was found to be in septic shock. During emergency laparotomy, 50 mL of purulent fluid were drained and an emergency hysterectomy was performed. Three days later, the patient died from pulmonary arrest caused by toxic shock syndrome. An autopsy revealed that the patient’s sepsis was caused by group A streptococci (GAS) infection.

ESTATE’S CLAIM The patient was not a proper candidate for endometrial ablation because of her history of chronic cervical infection. The ObGyn perforated the cervix during the procedure and tried to conceal it. At autopsy, bone wax was found in the rectal lumen that had been used to cover up damage to the cervix. The ObGyn introduced GAS bacteria into the patient’s system. The ObGyn’s staff failed to ask the proper questions when she called the day after the procedure. She should have been told to go directly to the ED.

DEFENDANTS’ DEFENSE The ObGyn did not perforate the cervix or uterus during the procedure. GAS infection is so rare that it would have been difficult to foresee or diagnose. Potentially, the patient had a chronic
cervical infection before ablation.

VERDICT A Texas defense verdict was returned.

_______________

DURING INSERTION, IUD PERFORATES UTERINE WALL; LATER FOUND BELOW LIVER
On July 21, a 46-year-old woman went to an ObGyn for placement of an intrauterine device (IUD). Shortly after the ObGyn inserted the levonorgestrel-releasing intrauterine system (Mirena, Bayer HealthCare), the patient reported severe pelvic and abdominal pain. On July 26, the patient underwent surgical removal of the IUD.

She was discharged on July 29 but continued to report pain. She was readmitted to the hospital the next day and treated for pain. She was bed ridden for 3 weeks after IUD-removal surgery, and had a 3-month recovery before feeling pain free.

PATIENT’S CLAIM The ObGyn was negligent in perforating the patient’s uterine wall during IUD insertion, causing the device to ultimately migrate under the patient’s liver.

DEFENDANTS’ DEFENSE Uterine perforation is a known complication of IUD insertion. The IUD escaped from the patient’s uterus at a later time and not during the insertion procedure.

VERDICT A Florida verdict of $208,839 was returned; the amount was reduced to $161,058 because the medical expenses were written off by the health-care providers.

_______________

Was travel appropriate for this pregnant woman?
A woman with a history of two premature deliveries and one miscarriage became pregnant again. She received prenatal care at an Army hospital. She traveled to Spain, where the baby was born at 31 weeks’ gestation. The baby required treatment in a neonatal intensive care unit (NICU) for 17 days. The child has cerebral palsy, with tetraplegia of all four extremities. She cannot walk without assistance and suffers severe cognitive and vision impairment.

PARENTS’ CLAIM The ObGyn at the Army hospital should not have approved the mother’s request for travel; he did so, despite knowing that the mother was at high risk for premature birth. The military medical hospital to which she was assigned in Spain could not manage a high-risk pregnancy, didn’t have a NICU, and didn’t have specialists to treat premature infants.

DEFENDANTS’ DEFENSE The ObGyn argued that he did not have access to the medical records showing the mother’s history. The patient countered that the ObGyn did indeed have the patient’s records, as he had discussed them with her.

VERDICT A $10,409,700 California verdict was returned against the ObGyn and the government facility.

_______________

Triple-negative BrCa not diagnosed until metastasized: $5.2M
After finding lumps in both breasts, a woman in her 30s saw a nurse practitioner (NP) at an Army hospital. A radiologist reported no mass in the right breast and multiple benign-appearing anechoic lesions in the left breast after bilateral mammography and ultrasonography (US) in July 2008. The Chief of Mammography Services recommended referral to a breast surgeon, but the patient never received the letter. It was placed in her mammography file, not in the treatment file.

In November 2008, the patient returned to the clinic. Bilateral diagnostic mammography and US were ordered, but for unknown reasons, cancelled. US of the left breast was interpreted as benign in January 2009.

After imaging in March 2010, followed by a needle biopsy of the right breast, a radiologist reported finding intermediate-grade infiltrating ductal carcinoma.

The patient sought care outside the military medical system at a large university hospital. In April 2010, stage 3 triple-negative invasive ductal carcinoma (IDC) was identified. The patient underwent chemotherapy, a double mastectomy, removal of 21 lymph nodes, and breast reconstruction. She was given a 60% chance of recurrence in 5–7 years.

PATIENT’S CLAIM It was negligent to not inform her of imaging results. Biopsy should have been performed in 2008, when the IDC was likely at stage 1; treatment would have been far less aggressive. Electronic medical records showed that the 2008 mammography and US results had been “signed off” by an NP at the clinic.

DEFENDANTS’ DEFENSE While unable to concede liability, the government agency did not contest the point.

VERDICT A $5.2 million Tennessee federal court bench verdict was returned, citing failures in communication, poor and improper record keeping and retention, failure to follow-up, and an unexplained cancellation of a medical order.

_______________

Woman dies from cervical cancer: $2.3M
In 2001, a 41-year-old woman had abnormal Pap smear results but her gynecologist did not order more testing. The patient was told to return in 3 months, but she did not return until 2007—reporting abnormal bleeding, vaginal discharge, and pain. Her Pap results were normal, however, and the gynecologist did not order further testing. In 2009, the patient was found to have advanced cervical cancer. She died 2 years later.

ESTATE’S CLAIM Further testing should have been ordered in 2001, which would have likely revealed dysplasia, which can lead to cancer. The laboratory incorrectly interpreted the 2007 Pap test; if the results had been properly reported, additional testing could have been ordered.

DEFENDANTS’ DEFENSE The laboratory and patient’s estate settled for a confidential amount before trial. The gynecologist denied negligence.

VERDICT A New Jersey jury found the gynecologist 40% at fault for his actions in 2007. The jury found the laboratory 50% at fault, and the patient 10% at fault. A gross verdict of $2.33 million was returned.

_______________
 

Bowel injury after cesarean delivery; mother dies of sepsis
At 40 4/7 weeks' gestation, a 37-year-old woman gave birth to a healthy child by cesarean delivery. The next day, the patient had an elevated white blood cell (WBC) count with a left shift, her abdomen was tympanic but soft, and she was passing flatus and belching. The ObGyn ordered a Fleet enema; only flatus was released. A covering ObGyn ordered an abdominal radiograph, which the radiologist reported as showing postoperative ileus and mild constipation. The patient was given a second Fleet enema the next day, resulting in watery stool. She vomited 300 mL of dark green fluid.

After a rectal tube was placed 2 days later, one hard brown stool and several brown, pasty, loose, and liquid stools were returned. She vomited several times that day, and was found to have hypoactive bowel sounds with continued tympanic quality in the upper quadrants. Laboratory testing revealed continued elevated WBC count with left shift. The next day, she had hypoactive bowel sounds with brown liquid stools. Later that morning, she was able to tolerate clear liquids. The ObGyn decided to discharge her home with instructions to continue on a clear liquid diet for 2 more days before advancing her diet.

The day after discharge, she was found unresponsive at home. She was taken to the hospital, but resuscitation attempts failed. She died. An autopsy revealed that the cause of death was sepsis.

ESTATE’S CLAIM The ObGyn was negligent in failing to diagnose and treat a postoperative intra-abdominal infection caused by bowel perforation. A surgical consult should have been obtained. The woman was prematurely discharged. The radiologist failed to report the presence of free air on the abdominal x-ray.

DEFENDANTS’ DEFENSE The case was settled during trial.

VERDICT A $1 million Maryland settlement was reached. 

_______________

Right ureter injury detected and repaired
During laparoscopic-assisted vaginal hysterectomy, the ObGyn detected and repaired an injury to the right ureter. The patient’s recovery was delayed by the injury.

PATIENT’S CLAIM The ObGyn was negligent in using a Kleppinger bipolar cauterizing instrument to cauterize the vaginal cuff. Thermal overspray from the instrument or the instrument itself damaged the ureter. The ObGyn was also negligent in not performing diagnostic cystoscopy to confirm patency of the ureter after the repair was made.

PHYSICIAN’S DEFENSE Ureter injury is a known risk of the procedure. All procedures were performed according to protocol.

VERDICT A Florida defense verdict was returned.

_______________

Failure to detect inflammatory BrCa; woman dies
A 42-year-old woman underwent mammography in February 2002 after reporting pain, discoloration, inflammation, and swelling in her left breast. The radiologist who interpreted the mammography suggested a biopsy for a differential diagnosis of mastitis or inflammatory carcinoma. The biopsy results were negative.

The patient’s symptoms persisted, and she underwent US in late May 2002. Another radiologist interpreted the US, noting that the patient could not tolerate compression, which led to less than optimal evaluation. The radiologist suggested that mastitis was the likely cause of the patient’s symptoms.

The patient then consulted a surgeon, who ordered mammography and magnetic resonance imaging (MRI) followed by biopsy, which indicated cancer. The patient underwent a mastectomy but metastasis had already occurred. She died at age 50 prior to the trial.

ESTATE’S CLAIM If the cancer had been diagnosed earlier, the outcome would have been better. Both radiologists misinterpreted the mammographies.

DEFENDANTS’ DEFENSE The mammographies had been properly interpreted. Any missed diagnosis would not have impacted the outcome due to the type of cancer. The scans had been released to the patient, but were subsequently lost; an adverse interference instruction was given to the jury.

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 on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Over the last 20 years, litigation rates, malpractice coverage costs, and the number of cesarean deliveries have increased significantly. In fact, many ObGyns have dropped their obstetric practices because of the increased cost of malpractice insurance, say researchers from Johns Hopkins and Brown, and three states (New York, Florida, and Virginia) now have birth injury funds to help deflect the burden of malpractice insurance and litigation costs.¹

What is the existing state-level relationship between malpractice rates and the mode of delivery, including cesarean delivery (CD) and vaginal delivery (VD), as well as operative vaginal delivery (OVD)? And how do the state-run injury funds affect this relationship, asked Clark T. Johnson, MD, MPH, and Erika F. Werner, MD.

To answer their question, the investigators collected 8 years of data on mode of delivery (from the Centers for Disease Control and Prevention National Vital Statistics System) and malpractice rates for ObGyns in each US state (from the 2011 Medical Liability Monitor Rate Survey). The researchers used linear regression modeling to analyze their 2003−2010 data.¹

They found that states with higher malpractice rates had higher CD delivery rates and lower VD rates than states with lower malpractice rates, and that higher malpractice rates also correlated with lower rates of OVD, including the use of forceps and vacuum extraction. Overall, the change in malpractice rates between 2003 and 2010 did not correlate with the rates of OVD.¹

Those states with the highest average annual malpractice insurance rate (> $120,000) to cover claims with a cap of $1 million/$3 million in 2010, were Florida, New York, and Connecticut. Illinois, Pennsylvania, New Jersey, and Maryland had an average annual rate of $100,000 to $120,000.

Those states with the lowest average annual malpractice insurance rate (0$ to $40,000) were North Dakota, South Dakota, Nebraska, Minnesota, Iowa, and Wisconsin.

In the 1980s, medical malpractice insurance rates soared and insurance companies were faced with eliminating coverage to obstetricians. In 1987, the Virginia General Assembly developed the Virginia Birth-Related Neurological Injury Compensation Program. This no-fault system ensures lifetime care to eligible participants, and has successfully stabilized the malpractice environment in the state.² Birth-related neurologic injury funds were also created in Florida in 1988³ and in New York in 2011.⁴

The three states with birth injury funds showed a decrease in malpractice rates, a slower rate of CD-rate increase, and an OVD-rate decrease. However, the researchers note that while developing a state birth injury fund is seen as a trend that might reduce malpractice rates, there were not enough data to demonstrate significance.¹

Over the last 20 years, litigation rates, malpractice coverage costs, and the number of cesarean deliveries have increased significantly. In fact, many ObGyns have dropped their obstetric practices because of the increased cost of malpractice insurance, say researchers from Johns Hopkins and Brown, and three states (New York, Florida, and Virginia) now have birth injury funds to help deflect the burden of malpractice insurance and litigation costs.¹

What is the existing state-level relationship between malpractice rates and the mode of delivery, including cesarean delivery (CD) and vaginal delivery (VD), as well as operative vaginal delivery (OVD)? And how do the state-run injury funds affect this relationship, asked Clark T. Johnson, MD, MPH, and Erika F. Werner, MD.

To answer their question, the investigators collected 8 years of data on mode of delivery (from the Centers for Disease Control and Prevention National Vital Statistics System) and malpractice rates for ObGyns in each US state (from the 2011 Medical Liability Monitor Rate Survey). The researchers used linear regression modeling to analyze their 2003−2010 data.¹

They found that states with higher malpractice rates had higher CD delivery rates and lower VD rates than states with lower malpractice rates, and that higher malpractice rates also correlated with lower rates of OVD, including the use of forceps and vacuum extraction. Overall, the change in malpractice rates between 2003 and 2010 did not correlate with the rates of OVD.¹

Those states with the highest average annual malpractice insurance rate (> $120,000) to cover claims with a cap of $1 million/$3 million in 2010, were Florida, New York, and Connecticut. Illinois, Pennsylvania, New Jersey, and Maryland had an average annual rate of $100,000 to $120,000.

Those states with the lowest average annual malpractice insurance rate (0$ to $40,000) were North Dakota, South Dakota, Nebraska, Minnesota, Iowa, and Wisconsin.

In the 1980s, medical malpractice insurance rates soared and insurance companies were faced with eliminating coverage to obstetricians. In 1987, the Virginia General Assembly developed the Virginia Birth-Related Neurological Injury Compensation Program. This no-fault system ensures lifetime care to eligible participants, and has successfully stabilized the malpractice environment in the state.² Birth-related neurologic injury funds were also created in Florida in 1988³ and in New York in 2011.⁴

The three states with birth injury funds showed a decrease in malpractice rates, a slower rate of CD-rate increase, and an OVD-rate decrease. However, the researchers note that while developing a state birth injury fund is seen as a trend that might reduce malpractice rates, there were not enough data to demonstrate significance.¹

Over the last 20 years, litigation rates, malpractice coverage costs, and the number of cesarean deliveries have increased significantly. In fact, many ObGyns have dropped their obstetric practices because of the increased cost of malpractice insurance, say researchers from Johns Hopkins and Brown, and three states (New York, Florida, and Virginia) now have birth injury funds to help deflect the burden of malpractice insurance and litigation costs.¹

What is the existing state-level relationship between malpractice rates and the mode of delivery, including cesarean delivery (CD) and vaginal delivery (VD), as well as operative vaginal delivery (OVD)? And how do the state-run injury funds affect this relationship, asked Clark T. Johnson, MD, MPH, and Erika F. Werner, MD.

To answer their question, the investigators collected 8 years of data on mode of delivery (from the Centers for Disease Control and Prevention National Vital Statistics System) and malpractice rates for ObGyns in each US state (from the 2011 Medical Liability Monitor Rate Survey). The researchers used linear regression modeling to analyze their 2003−2010 data.¹

They found that states with higher malpractice rates had higher CD delivery rates and lower VD rates than states with lower malpractice rates, and that higher malpractice rates also correlated with lower rates of OVD, including the use of forceps and vacuum extraction. Overall, the change in malpractice rates between 2003 and 2010 did not correlate with the rates of OVD.¹

Those states with the highest average annual malpractice insurance rate (> $120,000) to cover claims with a cap of $1 million/$3 million in 2010, were Florida, New York, and Connecticut. Illinois, Pennsylvania, New Jersey, and Maryland had an average annual rate of $100,000 to $120,000.

Those states with the lowest average annual malpractice insurance rate (0$ to $40,000) were North Dakota, South Dakota, Nebraska, Minnesota, Iowa, and Wisconsin.

In the 1980s, medical malpractice insurance rates soared and insurance companies were faced with eliminating coverage to obstetricians. In 1987, the Virginia General Assembly developed the Virginia Birth-Related Neurological Injury Compensation Program. This no-fault system ensures lifetime care to eligible participants, and has successfully stabilized the malpractice environment in the state.² Birth-related neurologic injury funds were also created in Florida in 1988³ and in New York in 2011.⁴

The three states with birth injury funds showed a decrease in malpractice rates, a slower rate of CD-rate increase, and an OVD-rate decrease. However, the researchers note that while developing a state birth injury fund is seen as a trend that might reduce malpractice rates, there were not enough data to demonstrate significance.¹

Was fetus’ wrist injured during cesarean delivery?

At 34 weeks’ gestation, a 39-year-old woman went to the hospital in preterm labor. Her history included a prior cesarean delivery. Ultrasonography (US) showed that the fetus was in a double-footling breech position. The ObGyn decided to perform a cesarean delivery when the fetal heart-rate monitor indicated distress.

After making a midline incision through the earlier scar, the ObGyn created a low transverse uterine incision with a scalpel. The mother’s uterus was thick because labor had not progressed. When the ObGyn was unable to deliver the baby through the low transverse incision, she performed a T-extension of the incision using bandage scissors while placing her free hand inside the uterus to shield the fetus from injury. After extensive manipulation, the baby was delivered and immediately handed to a neonatologist. After surgery, the neonatologist told the mother that the baby had sustained two lacerations to the ulnar side of the right wrist. The newborn was airlifted to another hospital for treatment of sepsis. There, an orthopedic hand surgeon examined the child and determined that the lacerations were superficial and only required sutures. The orthopedist saw the infant a month later and believed there was no significant wrist injury.

When the child began preschool, she started to experience cold intolerance and difficulty writing with her right hand. The child was referred to a pediatric neurologist, who found no nerve damage and ordered occupational therapy.

The original orthopedic surgeon examined the child when she was 7 years old and determined that the flexor carpi ulnaris tendon had been completely severed with a partial injury to the ulnar nerve. He recommended a return visit at age 14 for full assessment of the wrist injury.

PARENTS’ CLAIM The ObGyn did not properly shield the fetus when performing the T-extension incision during cesarean delivery. The child’s weakness will increase with age, ruling out some occupations.

PHYSICIAN’S DEFENSE The ObGyn was not negligent; she had provided adequate protection of the fetus during both incisions.

VERDICT An Illinois defense verdict was returned.

Woman dies after tubal ligation

After a 42-year-old woman underwent tubal ligation, her surgeon was concerned about a possible bowel perforation and admitted her to the hospital. The next morning, a computed tomography (CT) scan of the abdomen did not reveal bowel injury.

That afternoon, when the patient reported shortness of breath, the surgeon called the hospitalist with concern for pulmonary embolism (PE). The hospitalist immediately ordered a CT scan of the chest, initiated PE protocol, and wrote “r/o PE” on the chart. A radiologist reminded the hospitalist of the earlier CT scan with concern for kidney damage from another dye study. The hospitalist cancelled the CT scan and PE protocol. After waiting 17 hours to run any further tests, a CT scan revealed massive bilateral PE. The patient was transferred to the ICU, but died the next day.

PATIENT’S CLAIM The 17-hour delay was negligent.

PHYSICIAN’S DEFENSE There was no negligence. The patient died of septic shock, not PE.

VERDICT A $4 million Virginia verdict was returned.

Child born without hand and forearm

During prenatal care, a mother underwent US at 20 and 36 weeks; both studies were reported as normal. The child was born missing his left hand and part of his left forearm due to a congenital amputation. The child will require prosthetics for life.

PATIENT’S CLAIM The condition should have been seen during prenatal US; an abortion was still an option at 20 weeks.

DEFENDANTS’ DEFENSE US was properly performed and evaluated. It can be difficult to differentiate the right from left extremities.

VERDICT A California defense verdict was returned.

After starting Yasmin, woman has stroke with permanent paralysis: $16.5M total award

When a 37-year-old woman reported irregular menstruation, her ObGyn prescribed drospirenone/ethinyl estradiol (Yasmin; Bayer). Thirteen days after starting the drug, the patient had a stroke. She is paralyzed on her left side, has limited ability to speak, cannot use her left arm and leg, and requires 24-hour care.

PATIENT’S CLAIM The ObGyn should have recognized that Yasmin was not appropriate for this patient because of the drug’s clotting risks. The patient’s risk factors included her age (over 35), borderline hypertension, overweight, history of smoking, and high cholesterol. The ObGyn should have offered safer alternatives, such as a progesterone-only pill. The US Food and Drug Administration (FDA) issued a safety warning that all drospirenone-containing drugs may be associated with a higher risk of venous thrombosis during the first 6 months of use.

DEFENDANTS’ DEFENSE According to Bayer, Yasmin is safe, and remains on the market. It was an appropriate drug to treat her irregular bleeding.

VERDICT Claims against the medical center that referred the patient to the ObGyn were settled for $2.5 million before trial. A $14 million Illinois verdict was returned against the ObGyn, for a total award of $16.5 million.

Who is at fault when pelvic mesh erodes?

In January 2011, an ObGyn implanted the Gyne­care TVT Obturator System (TVT‑O; Ethicon) during a midurethral sling procedure to treat stress urinary incontinence (SUI) in a woman in her 60s. Shortly thereafter, the ObGyn left practice because of early-onset Alzheimer’s disease, and the patient’s care was taken over by a gynecologist.

At the 2-month postoperative visit, the gynecologist found that the mesh had eroded into the patient’s vagina. The gynecologist simply cut the mesh with a scissor, charted that a small erosion was present, and prescribed estrogen cream.

The patient continued to report pain, discomfort, pressure, difficulty voiding urine, continued incontinence, vaginal discharge, scarring, infection, odor, and bleeding.

PATIENT’S CLAIM The polypropylene mesh used during the midurethral sling procedure has been shown to be incompatible with human tissue. It promotes an immune response, which stimulates degradation of the pelvic tissue and can contribute to the development of severe adverse reactions to the mesh. Ethicon negligently designed, manufactured, marketed, labeled, and packaged the pelvic mesh products.

DEFENDANTS’ DEFENSE Proper warnings were provided about the health risks associated with polypropylene mesh products. The medical device was not properly sized.

VERDICT A Texas jury rejected the patient’s claims that Ethicon did not provide proper warnings about the sling’s health risks and declined to award punitive damages.

However, the jury decided that the mesh implant was defectively designed, and returned a $1.2 million verdict against Ethicon.

Was suspected bowel injury treated properly?

A 40-year-old woman was referred to an ObGyn after reporting abnormal uterine bleeding to her primary care physician. The patient had very light menses every few weeks. The ObGyn performed an ablation procedure, without relief. A month later, the ObGyn performed robot-assisted laparoscopic hysterectomy. The next day, the patient reported abdominal pain. Suspecting a bowel injury, the ObGyn ordered a CT scan; the bowel appeared normal, so the ObGyn referred the patient to a surgeon. During exploratory laparotomy, the surgeon found and repaired a bowel injury. The patient developed significant complications from a necrotizing infection that included respiratory distress and ongoing wound care.

PATIENT’S CLAIM Conservative treatment should have been offered before surgery. The ObGyn should have waited longer after the ablation procedure before doing the hysterectomy. The ObGyn should have checked for a possible bowel injury before closing the hysterectomy.

PHYSICIAN’S DEFENSE The bowel injury is a known complication of the procedure and was recognized and repaired in a timely manner.

VERDICT A Kentucky defense verdict was returned.

Pap smear improperly interpreted: Woman dies from cervical cancer

A 37-year-old woman underwent a pap smear in 2008 that was read by a cytotechnologist as normal. Two years later, the patient was found to have a golf-ball–sized cancerous tumor. She died from cervical cancer in 2011.

ESTATE’S CLAIM The cytotechnologist was negligent in misreading the 2008 Pap smear. If treatment had been started in 2008, the cancer could have been resolved with a simple conization biopsy.

DEFENDANTS’ DEFENSE The Pap smear interpretation was reasonable. The cancer could not have been diagnosed in 2008. The patient was at fault for failing to follow-up Pap smears during the next 2 years.

VERDICT After assigning 75% fault to the cytotechnologist and 25% fault to the patient, a Florida jury returned a $20,870,200 verdict, which was reduced to $15,816,699. 

Disastrous off-label use of anticoagulation

When a pelvic abscess was found, a 50-year-old woman was admitted to the hospital for treatment. She was taking warfarin due to a history of venous thromboembolism.

Before the procedure, her physicians attempted to temporarily reverse her anticoagulation by administering Factor IX Complex (Profilnine SD, Grifols Biologicals). The dose ordered for the patient was nearly double the maximum recommended weight-based dose. Almost immediately after receiving the infusion, the patient went into cardiopulmonary arrest and died. An autopsy found the cause of death to be pulmonary emboli (PE).

ESTATE’S CLAIM An excessive dose of Profilnine caused PE. At the time of the incident, Profilnine was not FDA approved for warfarin reversal, although some off-label uses were recognized in emergent situations, such as intracranial bleeds.

DEFENDANTS’ DEFENSE The case was settled during the trial.

VERDICT A $1.25 million Virginia settlement was reached.

Vesicovaginal fistula from ureteral injury

At a women’s health clinic, a patient reported continuous, heavy vaginal bleeding; pain; and shortness of breath when walking. She had a history of endometritis and multiple abdominal surgeries. Examination disclosed a profuse vaginal discharge, a normal cervix, and an enlarged uterus. The patient consented to abdominal hysterectomy and bilateral salpingo-oophorectomy performed by an ObGyn assisted by  a resident.

During surgery, the ObGyn found that the patient’s uterus was at 16 to 20 weeks’ gestation size, with multiple serosal uterine fibroids and frank pus and necrosed fibroid tumors within the uterine cavity. The procedure took longer than planned because of extensive adhesions. After surgery, the patient was anemic and was given a beta-blocker for tachycardia. She was discharged 3 days later with 48 hours’ worth of intravenous antibiotics.

A month later, the patient reported urinary incontinence. She saw a urologist, who found a vesicovaginal fistula. The patient underwent nephrostomy-tube placement. Right ureterolysis and a right ureteral reimplant was performed 4 months later.

PATIENT’S CLAIM The ObGyn injured the right ureter during surgery.

DEFENDANTS’ DEFENSE The ureter injury is a known risk of the procedure. The injury was due to an infection or delayed effects of ischemia. The patient had a good recovery with no residual injury.

VERDICT A Michigan defense verdict was returned.

Why did mother die after delivering twins?

After a 35-year-old woman gave birth to twins by cesarean delivery, she died. At autopsy, 4 liters of blood were found in her abdomen.

ESTATE’S CLAIM The ObGyn failed to recognize and treat an arterial or venous bleed during surgery.

DEFENDANTS’ DEFENSE The patient  died from amniotic fluid embolism. Autopsy results showed right ventricular heart failure, respiratory failure, and disseminated intravascular coagulation.

VERDICT A Florida 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 on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Was fetus’ wrist injured during cesarean delivery?

At 34 weeks’ gestation, a 39-year-old woman went to the hospital in preterm labor. Her history included a prior cesarean delivery. Ultrasonography (US) showed that the fetus was in a double-footling breech position. The ObGyn decided to perform a cesarean delivery when the fetal heart-rate monitor indicated distress.

After making a midline incision through the earlier scar, the ObGyn created a low transverse uterine incision with a scalpel. The mother’s uterus was thick because labor had not progressed. When the ObGyn was unable to deliver the baby through the low transverse incision, she performed a T-extension of the incision using bandage scissors while placing her free hand inside the uterus to shield the fetus from injury. After extensive manipulation, the baby was delivered and immediately handed to a neonatologist. After surgery, the neonatologist told the mother that the baby had sustained two lacerations to the ulnar side of the right wrist. The newborn was airlifted to another hospital for treatment of sepsis. There, an orthopedic hand surgeon examined the child and determined that the lacerations were superficial and only required sutures. The orthopedist saw the infant a month later and believed there was no significant wrist injury.

When the child began preschool, she started to experience cold intolerance and difficulty writing with her right hand. The child was referred to a pediatric neurologist, who found no nerve damage and ordered occupational therapy.

The original orthopedic surgeon examined the child when she was 7 years old and determined that the flexor carpi ulnaris tendon had been completely severed with a partial injury to the ulnar nerve. He recommended a return visit at age 14 for full assessment of the wrist injury.

PARENTS’ CLAIM The ObGyn did not properly shield the fetus when performing the T-extension incision during cesarean delivery. The child’s weakness will increase with age, ruling out some occupations.

PHYSICIAN’S DEFENSE The ObGyn was not negligent; she had provided adequate protection of the fetus during both incisions.

VERDICT An Illinois defense verdict was returned.

Woman dies after tubal ligation

After a 42-year-old woman underwent tubal ligation, her surgeon was concerned about a possible bowel perforation and admitted her to the hospital. The next morning, a computed tomography (CT) scan of the abdomen did not reveal bowel injury.

That afternoon, when the patient reported shortness of breath, the surgeon called the hospitalist with concern for pulmonary embolism (PE). The hospitalist immediately ordered a CT scan of the chest, initiated PE protocol, and wrote “r/o PE” on the chart. A radiologist reminded the hospitalist of the earlier CT scan with concern for kidney damage from another dye study. The hospitalist cancelled the CT scan and PE protocol. After waiting 17 hours to run any further tests, a CT scan revealed massive bilateral PE. The patient was transferred to the ICU, but died the next day.

PATIENT’S CLAIM The 17-hour delay was negligent.

PHYSICIAN’S DEFENSE There was no negligence. The patient died of septic shock, not PE.

VERDICT A $4 million Virginia verdict was returned.

Child born without hand and forearm

During prenatal care, a mother underwent US at 20 and 36 weeks; both studies were reported as normal. The child was born missing his left hand and part of his left forearm due to a congenital amputation. The child will require prosthetics for life.

PATIENT’S CLAIM The condition should have been seen during prenatal US; an abortion was still an option at 20 weeks.

DEFENDANTS’ DEFENSE US was properly performed and evaluated. It can be difficult to differentiate the right from left extremities.

VERDICT A California defense verdict was returned.

After starting Yasmin, woman has stroke with permanent paralysis: $16.5M total award

When a 37-year-old woman reported irregular menstruation, her ObGyn prescribed drospirenone/ethinyl estradiol (Yasmin; Bayer). Thirteen days after starting the drug, the patient had a stroke. She is paralyzed on her left side, has limited ability to speak, cannot use her left arm and leg, and requires 24-hour care.

PATIENT’S CLAIM The ObGyn should have recognized that Yasmin was not appropriate for this patient because of the drug’s clotting risks. The patient’s risk factors included her age (over 35), borderline hypertension, overweight, history of smoking, and high cholesterol. The ObGyn should have offered safer alternatives, such as a progesterone-only pill. The US Food and Drug Administration (FDA) issued a safety warning that all drospirenone-containing drugs may be associated with a higher risk of venous thrombosis during the first 6 months of use.

DEFENDANTS’ DEFENSE According to Bayer, Yasmin is safe, and remains on the market. It was an appropriate drug to treat her irregular bleeding.

VERDICT Claims against the medical center that referred the patient to the ObGyn were settled for $2.5 million before trial. A $14 million Illinois verdict was returned against the ObGyn, for a total award of $16.5 million.

Who is at fault when pelvic mesh erodes?

In January 2011, an ObGyn implanted the Gyne­care TVT Obturator System (TVT‑O; Ethicon) during a midurethral sling procedure to treat stress urinary incontinence (SUI) in a woman in her 60s. Shortly thereafter, the ObGyn left practice because of early-onset Alzheimer’s disease, and the patient’s care was taken over by a gynecologist.

At the 2-month postoperative visit, the gynecologist found that the mesh had eroded into the patient’s vagina. The gynecologist simply cut the mesh with a scissor, charted that a small erosion was present, and prescribed estrogen cream.

The patient continued to report pain, discomfort, pressure, difficulty voiding urine, continued incontinence, vaginal discharge, scarring, infection, odor, and bleeding.

PATIENT’S CLAIM The polypropylene mesh used during the midurethral sling procedure has been shown to be incompatible with human tissue. It promotes an immune response, which stimulates degradation of the pelvic tissue and can contribute to the development of severe adverse reactions to the mesh. Ethicon negligently designed, manufactured, marketed, labeled, and packaged the pelvic mesh products.

DEFENDANTS’ DEFENSE Proper warnings were provided about the health risks associated with polypropylene mesh products. The medical device was not properly sized.

VERDICT A Texas jury rejected the patient’s claims that Ethicon did not provide proper warnings about the sling’s health risks and declined to award punitive damages.

However, the jury decided that the mesh implant was defectively designed, and returned a $1.2 million verdict against Ethicon.

Was suspected bowel injury treated properly?

A 40-year-old woman was referred to an ObGyn after reporting abnormal uterine bleeding to her primary care physician. The patient had very light menses every few weeks. The ObGyn performed an ablation procedure, without relief. A month later, the ObGyn performed robot-assisted laparoscopic hysterectomy. The next day, the patient reported abdominal pain. Suspecting a bowel injury, the ObGyn ordered a CT scan; the bowel appeared normal, so the ObGyn referred the patient to a surgeon. During exploratory laparotomy, the surgeon found and repaired a bowel injury. The patient developed significant complications from a necrotizing infection that included respiratory distress and ongoing wound care.

PATIENT’S CLAIM Conservative treatment should have been offered before surgery. The ObGyn should have waited longer after the ablation procedure before doing the hysterectomy. The ObGyn should have checked for a possible bowel injury before closing the hysterectomy.

PHYSICIAN’S DEFENSE The bowel injury is a known complication of the procedure and was recognized and repaired in a timely manner.

VERDICT A Kentucky defense verdict was returned.

Pap smear improperly interpreted: Woman dies from cervical cancer

A 37-year-old woman underwent a pap smear in 2008 that was read by a cytotechnologist as normal. Two years later, the patient was found to have a golf-ball–sized cancerous tumor. She died from cervical cancer in 2011.

ESTATE’S CLAIM The cytotechnologist was negligent in misreading the 2008 Pap smear. If treatment had been started in 2008, the cancer could have been resolved with a simple conization biopsy.

DEFENDANTS’ DEFENSE The Pap smear interpretation was reasonable. The cancer could not have been diagnosed in 2008. The patient was at fault for failing to follow-up Pap smears during the next 2 years.

VERDICT After assigning 75% fault to the cytotechnologist and 25% fault to the patient, a Florida jury returned a $20,870,200 verdict, which was reduced to $15,816,699. 

Disastrous off-label use of anticoagulation

When a pelvic abscess was found, a 50-year-old woman was admitted to the hospital for treatment. She was taking warfarin due to a history of venous thromboembolism.

Before the procedure, her physicians attempted to temporarily reverse her anticoagulation by administering Factor IX Complex (Profilnine SD, Grifols Biologicals). The dose ordered for the patient was nearly double the maximum recommended weight-based dose. Almost immediately after receiving the infusion, the patient went into cardiopulmonary arrest and died. An autopsy found the cause of death to be pulmonary emboli (PE).

ESTATE’S CLAIM An excessive dose of Profilnine caused PE. At the time of the incident, Profilnine was not FDA approved for warfarin reversal, although some off-label uses were recognized in emergent situations, such as intracranial bleeds.

DEFENDANTS’ DEFENSE The case was settled during the trial.

VERDICT A $1.25 million Virginia settlement was reached.

Vesicovaginal fistula from ureteral injury

At a women’s health clinic, a patient reported continuous, heavy vaginal bleeding; pain; and shortness of breath when walking. She had a history of endometritis and multiple abdominal surgeries. Examination disclosed a profuse vaginal discharge, a normal cervix, and an enlarged uterus. The patient consented to abdominal hysterectomy and bilateral salpingo-oophorectomy performed by an ObGyn assisted by  a resident.

During surgery, the ObGyn found that the patient’s uterus was at 16 to 20 weeks’ gestation size, with multiple serosal uterine fibroids and frank pus and necrosed fibroid tumors within the uterine cavity. The procedure took longer than planned because of extensive adhesions. After surgery, the patient was anemic and was given a beta-blocker for tachycardia. She was discharged 3 days later with 48 hours’ worth of intravenous antibiotics.

A month later, the patient reported urinary incontinence. She saw a urologist, who found a vesicovaginal fistula. The patient underwent nephrostomy-tube placement. Right ureterolysis and a right ureteral reimplant was performed 4 months later.

PATIENT’S CLAIM The ObGyn injured the right ureter during surgery.

DEFENDANTS’ DEFENSE The ureter injury is a known risk of the procedure. The injury was due to an infection or delayed effects of ischemia. The patient had a good recovery with no residual injury.

VERDICT A Michigan defense verdict was returned.

Why did mother die after delivering twins?

After a 35-year-old woman gave birth to twins by cesarean delivery, she died. At autopsy, 4 liters of blood were found in her abdomen.

ESTATE’S CLAIM The ObGyn failed to recognize and treat an arterial or venous bleed during surgery.

DEFENDANTS’ DEFENSE The patient  died from amniotic fluid embolism. Autopsy results showed right ventricular heart failure, respiratory failure, and disseminated intravascular coagulation.

VERDICT A Florida 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 on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Was fetus’ wrist injured during cesarean delivery?

At 34 weeks’ gestation, a 39-year-old woman went to the hospital in preterm labor. Her history included a prior cesarean delivery. Ultrasonography (US) showed that the fetus was in a double-footling breech position. The ObGyn decided to perform a cesarean delivery when the fetal heart-rate monitor indicated distress.

After making a midline incision through the earlier scar, the ObGyn created a low transverse uterine incision with a scalpel. The mother’s uterus was thick because labor had not progressed. When the ObGyn was unable to deliver the baby through the low transverse incision, she performed a T-extension of the incision using bandage scissors while placing her free hand inside the uterus to shield the fetus from injury. After extensive manipulation, the baby was delivered and immediately handed to a neonatologist. After surgery, the neonatologist told the mother that the baby had sustained two lacerations to the ulnar side of the right wrist. The newborn was airlifted to another hospital for treatment of sepsis. There, an orthopedic hand surgeon examined the child and determined that the lacerations were superficial and only required sutures. The orthopedist saw the infant a month later and believed there was no significant wrist injury.

When the child began preschool, she started to experience cold intolerance and difficulty writing with her right hand. The child was referred to a pediatric neurologist, who found no nerve damage and ordered occupational therapy.

The original orthopedic surgeon examined the child when she was 7 years old and determined that the flexor carpi ulnaris tendon had been completely severed with a partial injury to the ulnar nerve. He recommended a return visit at age 14 for full assessment of the wrist injury.

PARENTS’ CLAIM The ObGyn did not properly shield the fetus when performing the T-extension incision during cesarean delivery. The child’s weakness will increase with age, ruling out some occupations.

PHYSICIAN’S DEFENSE The ObGyn was not negligent; she had provided adequate protection of the fetus during both incisions.

VERDICT An Illinois defense verdict was returned.

Woman dies after tubal ligation

After a 42-year-old woman underwent tubal ligation, her surgeon was concerned about a possible bowel perforation and admitted her to the hospital. The next morning, a computed tomography (CT) scan of the abdomen did not reveal bowel injury.

That afternoon, when the patient reported shortness of breath, the surgeon called the hospitalist with concern for pulmonary embolism (PE). The hospitalist immediately ordered a CT scan of the chest, initiated PE protocol, and wrote “r/o PE” on the chart. A radiologist reminded the hospitalist of the earlier CT scan with concern for kidney damage from another dye study. The hospitalist cancelled the CT scan and PE protocol. After waiting 17 hours to run any further tests, a CT scan revealed massive bilateral PE. The patient was transferred to the ICU, but died the next day.

PATIENT’S CLAIM The 17-hour delay was negligent.

PHYSICIAN’S DEFENSE There was no negligence. The patient died of septic shock, not PE.

VERDICT A $4 million Virginia verdict was returned.

Child born without hand and forearm

During prenatal care, a mother underwent US at 20 and 36 weeks; both studies were reported as normal. The child was born missing his left hand and part of his left forearm due to a congenital amputation. The child will require prosthetics for life.

PATIENT’S CLAIM The condition should have been seen during prenatal US; an abortion was still an option at 20 weeks.

DEFENDANTS’ DEFENSE US was properly performed and evaluated. It can be difficult to differentiate the right from left extremities.

VERDICT A California defense verdict was returned.

After starting Yasmin, woman has stroke with permanent paralysis: $16.5M total award

When a 37-year-old woman reported irregular menstruation, her ObGyn prescribed drospirenone/ethinyl estradiol (Yasmin; Bayer). Thirteen days after starting the drug, the patient had a stroke. She is paralyzed on her left side, has limited ability to speak, cannot use her left arm and leg, and requires 24-hour care.

PATIENT’S CLAIM The ObGyn should have recognized that Yasmin was not appropriate for this patient because of the drug’s clotting risks. The patient’s risk factors included her age (over 35), borderline hypertension, overweight, history of smoking, and high cholesterol. The ObGyn should have offered safer alternatives, such as a progesterone-only pill. The US Food and Drug Administration (FDA) issued a safety warning that all drospirenone-containing drugs may be associated with a higher risk of venous thrombosis during the first 6 months of use.

DEFENDANTS’ DEFENSE According to Bayer, Yasmin is safe, and remains on the market. It was an appropriate drug to treat her irregular bleeding.

VERDICT Claims against the medical center that referred the patient to the ObGyn were settled for $2.5 million before trial. A $14 million Illinois verdict was returned against the ObGyn, for a total award of $16.5 million.

Who is at fault when pelvic mesh erodes?

In January 2011, an ObGyn implanted the Gyne­care TVT Obturator System (TVT‑O; Ethicon) during a midurethral sling procedure to treat stress urinary incontinence (SUI) in a woman in her 60s. Shortly thereafter, the ObGyn left practice because of early-onset Alzheimer’s disease, and the patient’s care was taken over by a gynecologist.

At the 2-month postoperative visit, the gynecologist found that the mesh had eroded into the patient’s vagina. The gynecologist simply cut the mesh with a scissor, charted that a small erosion was present, and prescribed estrogen cream.

The patient continued to report pain, discomfort, pressure, difficulty voiding urine, continued incontinence, vaginal discharge, scarring, infection, odor, and bleeding.

PATIENT’S CLAIM The polypropylene mesh used during the midurethral sling procedure has been shown to be incompatible with human tissue. It promotes an immune response, which stimulates degradation of the pelvic tissue and can contribute to the development of severe adverse reactions to the mesh. Ethicon negligently designed, manufactured, marketed, labeled, and packaged the pelvic mesh products.

DEFENDANTS’ DEFENSE Proper warnings were provided about the health risks associated with polypropylene mesh products. The medical device was not properly sized.

VERDICT A Texas jury rejected the patient’s claims that Ethicon did not provide proper warnings about the sling’s health risks and declined to award punitive damages.

However, the jury decided that the mesh implant was defectively designed, and returned a $1.2 million verdict against Ethicon.

Was suspected bowel injury treated properly?

A 40-year-old woman was referred to an ObGyn after reporting abnormal uterine bleeding to her primary care physician. The patient had very light menses every few weeks. The ObGyn performed an ablation procedure, without relief. A month later, the ObGyn performed robot-assisted laparoscopic hysterectomy. The next day, the patient reported abdominal pain. Suspecting a bowel injury, the ObGyn ordered a CT scan; the bowel appeared normal, so the ObGyn referred the patient to a surgeon. During exploratory laparotomy, the surgeon found and repaired a bowel injury. The patient developed significant complications from a necrotizing infection that included respiratory distress and ongoing wound care.

PATIENT’S CLAIM Conservative treatment should have been offered before surgery. The ObGyn should have waited longer after the ablation procedure before doing the hysterectomy. The ObGyn should have checked for a possible bowel injury before closing the hysterectomy.

PHYSICIAN’S DEFENSE The bowel injury is a known complication of the procedure and was recognized and repaired in a timely manner.

VERDICT A Kentucky defense verdict was returned.

Pap smear improperly interpreted: Woman dies from cervical cancer

A 37-year-old woman underwent a pap smear in 2008 that was read by a cytotechnologist as normal. Two years later, the patient was found to have a golf-ball–sized cancerous tumor. She died from cervical cancer in 2011.

ESTATE’S CLAIM The cytotechnologist was negligent in misreading the 2008 Pap smear. If treatment had been started in 2008, the cancer could have been resolved with a simple conization biopsy.

DEFENDANTS’ DEFENSE The Pap smear interpretation was reasonable. The cancer could not have been diagnosed in 2008. The patient was at fault for failing to follow-up Pap smears during the next 2 years.

VERDICT After assigning 75% fault to the cytotechnologist and 25% fault to the patient, a Florida jury returned a $20,870,200 verdict, which was reduced to $15,816,699. 

Disastrous off-label use of anticoagulation

When a pelvic abscess was found, a 50-year-old woman was admitted to the hospital for treatment. She was taking warfarin due to a history of venous thromboembolism.

Before the procedure, her physicians attempted to temporarily reverse her anticoagulation by administering Factor IX Complex (Profilnine SD, Grifols Biologicals). The dose ordered for the patient was nearly double the maximum recommended weight-based dose. Almost immediately after receiving the infusion, the patient went into cardiopulmonary arrest and died. An autopsy found the cause of death to be pulmonary emboli (PE).

ESTATE’S CLAIM An excessive dose of Profilnine caused PE. At the time of the incident, Profilnine was not FDA approved for warfarin reversal, although some off-label uses were recognized in emergent situations, such as intracranial bleeds.

DEFENDANTS’ DEFENSE The case was settled during the trial.

VERDICT A $1.25 million Virginia settlement was reached.

Vesicovaginal fistula from ureteral injury

At a women’s health clinic, a patient reported continuous, heavy vaginal bleeding; pain; and shortness of breath when walking. She had a history of endometritis and multiple abdominal surgeries. Examination disclosed a profuse vaginal discharge, a normal cervix, and an enlarged uterus. The patient consented to abdominal hysterectomy and bilateral salpingo-oophorectomy performed by an ObGyn assisted by  a resident.

During surgery, the ObGyn found that the patient’s uterus was at 16 to 20 weeks’ gestation size, with multiple serosal uterine fibroids and frank pus and necrosed fibroid tumors within the uterine cavity. The procedure took longer than planned because of extensive adhesions. After surgery, the patient was anemic and was given a beta-blocker for tachycardia. She was discharged 3 days later with 48 hours’ worth of intravenous antibiotics.

A month later, the patient reported urinary incontinence. She saw a urologist, who found a vesicovaginal fistula. The patient underwent nephrostomy-tube placement. Right ureterolysis and a right ureteral reimplant was performed 4 months later.

PATIENT’S CLAIM The ObGyn injured the right ureter during surgery.

DEFENDANTS’ DEFENSE The ureter injury is a known risk of the procedure. The injury was due to an infection or delayed effects of ischemia. The patient had a good recovery with no residual injury.

VERDICT A Michigan defense verdict was returned.

Why did mother die after delivering twins?

After a 35-year-old woman gave birth to twins by cesarean delivery, she died. At autopsy, 4 liters of blood were found in her abdomen.

ESTATE’S CLAIM The ObGyn failed to recognize and treat an arterial or venous bleed during surgery.

DEFENDANTS’ DEFENSE The patient  died from amniotic fluid embolism. Autopsy results showed right ventricular heart failure, respiratory failure, and disseminated intravascular coagulation.

VERDICT A Florida 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 on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Dear Dr. Mossman,

When I take a call from a treatment-seeker at our outpatient clinic, I ask brief screen­ing questions to determine whether our services would be appropriate. Shortly after I screened one caller, Ms. C, she called back requesting a medication refill and asking about her diagnosis.

What obligation do I have to Ms. C? Is she my patient? Would I be liable if I didn’t help her out and something bad happened to her?

Submitted by “Dr. S”

Office and hospital Web sites, LinkedIn profiles, and Facebook pages are just a few of the ways that people find physicians and learn about their services. But most 21st century doctor-patient relationships still start with 19th century technology: a telephone call.

Talking with prospective patients before setting up an appointment makes sense. A short conversation can clarify whether you offer the services that a caller needs and increases the show-up rate for initial appointments.¹

But if you ask for some personal his­tory and information about symptoms in a screening interview, does that make the caller your patient? Ms. C seemed to have thought so. To find out whether Ms. C was right and to learn how Dr. S should handle initial telephone calls, we’ll look at:
   • the rationale for screening callers before initiating treatment
   • features of screening that can create a doctor-patient relationship
   • how to fulfill duties that result from screening.
 

Why screen prospective patients?
Mental health treatment has become more diversified and specialized over the past 30 years. No psychiatrist nowadays has all the therapeutic skills that all potential patients might need.

Before speaking to you, a treatment-seeker often won’t know whether your practice style will fit his (her) needs. You might prefer not to provide medica­tion management for another clinician’s psychotherapy patient or, if you’re like most psychiatrists, you might not offer psychotherapy.

In the absence of prior obligation (eg, agreeing to provide coverage for an emergency room), physicians may struc­ture their practices and contract for their services as they see fit²—but this leaves you with some obligation to screen poten­tial patients for appropriate mutual fit. In years past, some psychiatrists saw poten­tial patients for an in-office evaluation to decide whether to provide treatment—a practicethat remains acceptable if the per­son is told, when the appointment is made, that the first meeting is “to meet each other and see if you want to establish a treatment relationship.”³ 

Good treatment plans take into account patients’ temperament, emotional state, cognitive capacity, culture, family circum­stances, substance use, and medical his­tory.⁴ Common mental conditions often can be identified in a telephone call.^5,6 Although the diagnostic accuracy of such efforts is uncertain,⁷ such calls can help practitio­ners determine whether they offer the right services for callers. Good decisions about initiating care always take financial pres­sures and constraints into account,⁸ and a pre-appointment telephone call can address those issues, too.

For all these reasons, talking to a prospective patient before he comes to see you makes sense. Screening lets you decide:  
   • whether you’re the right clinician for his needs  
   • who the right clinician is if you are not  
   • whether he should seek emergency evaluation when the situation sounds urgent.

Do phone calls start treatment?
As Dr. S’s questions show, telephone screenings might leave some callers think­ing that treatment has started, even before their first office appointment. Having a treatment relationship is a prerequisite to malpractice liability,⁹ and courts have con­cluded that, under the right circumstances, telephone assessments do create physician-patient relationships.

Creating a physician-patient relationship
How or when might telephone screen­ing make someone your patient? This question doesn’t have a precise answer, but how courts decided similar ques­tions has depended on the questions the physician asked and whether the physician offered what sounded like medical advice.^10,11 A physician-patient relationship forms when the phy­sician takes some implied or affirmative action to treat, see, examine, care for, or offer a diagnosis to the patient,^9,12,13 such as:
   • knowingly accepting someone as a patient¹⁴
   • explicitly agreeing to treat a person
   • “acting in some other way such that the patient might reasonably be led to assume a doctor-patient relationship has been established.”¹⁵

Also, the “fact that a physician does not deal directly with a patient does not neces­sarily preclude the existence of a physician-patient relationship,”¹² so a telephone conversation can create such a relationship if it contains the right elements. Table 1¹⁶ highlights actions that, during the course of screening, might constitute initiation of a physician-patient relationship. Table 2 offers suggestions for managing ini­tial telephone contacts to reduce the chance of inadvertently creating a physician-patient relationship.

Prescribing
Although features of the original screening interview indicated that Ms. C was not yet Dr. S’s patient, prescribing certainly would commence a physician-patient relation­ship.¹⁸ But even if the screening had made Ms. C a patient, refilling her prescription now probably is a bad idea.

Assuming that a physician-patient rela­tionship exists, it is unlikely that a short telephone interview gave Dr. S enough infor­mation about Ms. C’s medical history and present mental status to ensure that his diag­nostic reasoning would not be faulty. It also is unlikely that telephone screening allowed Dr. S to meet the standard of care for pre­scribing—a process that involves choosing medications suitable to the patient’s clini­cal needs, checking the results of any neces­sary lab tests, and obtaining appropriate informed consent.¹⁹

Satisfying duties
Outpatient facilities can instruct telephone screeners to conduct interviews in ways that reduce inadvertent establishment of a treatment relationship, but establishing such a relationship cannot be avoided in all cases. If a caller is distraught or in crisis, for example, compassion dictates helping him, and some callers (eg, Ms. C) may feel they have a firmer treatment relationship than actually exists.

Once you have created a physician-patient relationship, you must continue that relationship until you end it appropriately.³ That does not mean you have to provide definitive treatment; you simply need to exercise “reasonable care according to the standards of the profession.”^16,20 If a caller telephones in an emergency situation, for example, the screening clinician should take appropriate steps to ensure safety, which might include calling law enforcement or facilitating hospitalization.³

One way to fulfill the duties of a physi­cian-patient relationship inadvertently estab­lished during initial screening is through explicit discharge (if medically appropriate) or transfer of care to another physician.¹⁵ A prudent clinic or practitioner will describe other mental health resources in the commu­nity and sometimes assist with referral if the inquiring potential patient needs services that the provider does not offer.

In many communities, finding appro­priate mental health resources is diffi­cult. Creative approaches to this problem include transitional psychiatry or crisis sup­port clinics that serve as a “bridge” to lon­ger-term services,^21,22 preliminary process groups,²³ and telepsychiatry transitional clinics.²⁴ When a clinic does not accept a person as a patient, the clinic should clearly document 1) key features of the contact and 2) the rationale for that decision
 

Bottom Line
You have a right and a responsibility to screen prospective patients for good fit to your treatment services. In doing so, however, you might inadvertently create a physician-patient relationship. If this happens, you should fulfill your clinical responsibilities, as you would for any patient, by helping the patient get appropriate care from you or another provider.
 

Disclosures
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.

Dear Dr. Mossman,

When I take a call from a treatment-seeker at our outpatient clinic, I ask brief screen­ing questions to determine whether our services would be appropriate. Shortly after I screened one caller, Ms. C, she called back requesting a medication refill and asking about her diagnosis.

What obligation do I have to Ms. C? Is she my patient? Would I be liable if I didn’t help her out and something bad happened to her?

Submitted by “Dr. S”

Office and hospital Web sites, LinkedIn profiles, and Facebook pages are just a few of the ways that people find physicians and learn about their services. But most 21st century doctor-patient relationships still start with 19th century technology: a telephone call.

Talking with prospective patients before setting up an appointment makes sense. A short conversation can clarify whether you offer the services that a caller needs and increases the show-up rate for initial appointments.¹

But if you ask for some personal his­tory and information about symptoms in a screening interview, does that make the caller your patient? Ms. C seemed to have thought so. To find out whether Ms. C was right and to learn how Dr. S should handle initial telephone calls, we’ll look at:
   • the rationale for screening callers before initiating treatment
   • features of screening that can create a doctor-patient relationship
   • how to fulfill duties that result from screening.
 

Why screen prospective patients?
Mental health treatment has become more diversified and specialized over the past 30 years. No psychiatrist nowadays has all the therapeutic skills that all potential patients might need.

Before speaking to you, a treatment-seeker often won’t know whether your practice style will fit his (her) needs. You might prefer not to provide medica­tion management for another clinician’s psychotherapy patient or, if you’re like most psychiatrists, you might not offer psychotherapy.

In the absence of prior obligation (eg, agreeing to provide coverage for an emergency room), physicians may struc­ture their practices and contract for their services as they see fit²—but this leaves you with some obligation to screen poten­tial patients for appropriate mutual fit. In years past, some psychiatrists saw poten­tial patients for an in-office evaluation to decide whether to provide treatment—a practicethat remains acceptable if the per­son is told, when the appointment is made, that the first meeting is “to meet each other and see if you want to establish a treatment relationship.”³ 

Good treatment plans take into account patients’ temperament, emotional state, cognitive capacity, culture, family circum­stances, substance use, and medical his­tory.⁴ Common mental conditions often can be identified in a telephone call.^5,6 Although the diagnostic accuracy of such efforts is uncertain,⁷ such calls can help practitio­ners determine whether they offer the right services for callers. Good decisions about initiating care always take financial pres­sures and constraints into account,⁸ and a pre-appointment telephone call can address those issues, too.

For all these reasons, talking to a prospective patient before he comes to see you makes sense. Screening lets you decide:  
   • whether you’re the right clinician for his needs  
   • who the right clinician is if you are not  
   • whether he should seek emergency evaluation when the situation sounds urgent.

Do phone calls start treatment?
As Dr. S’s questions show, telephone screenings might leave some callers think­ing that treatment has started, even before their first office appointment. Having a treatment relationship is a prerequisite to malpractice liability,⁹ and courts have con­cluded that, under the right circumstances, telephone assessments do create physician-patient relationships.

Creating a physician-patient relationship
How or when might telephone screen­ing make someone your patient? This question doesn’t have a precise answer, but how courts decided similar ques­tions has depended on the questions the physician asked and whether the physician offered what sounded like medical advice.^10,11 A physician-patient relationship forms when the phy­sician takes some implied or affirmative action to treat, see, examine, care for, or offer a diagnosis to the patient,^9,12,13 such as:
   • knowingly accepting someone as a patient¹⁴
   • explicitly agreeing to treat a person
   • “acting in some other way such that the patient might reasonably be led to assume a doctor-patient relationship has been established.”¹⁵

Also, the “fact that a physician does not deal directly with a patient does not neces­sarily preclude the existence of a physician-patient relationship,”¹² so a telephone conversation can create such a relationship if it contains the right elements. Table 1¹⁶ highlights actions that, during the course of screening, might constitute initiation of a physician-patient relationship. Table 2 offers suggestions for managing ini­tial telephone contacts to reduce the chance of inadvertently creating a physician-patient relationship.

Prescribing
Although features of the original screening interview indicated that Ms. C was not yet Dr. S’s patient, prescribing certainly would commence a physician-patient relation­ship.¹⁸ But even if the screening had made Ms. C a patient, refilling her prescription now probably is a bad idea.

Assuming that a physician-patient rela­tionship exists, it is unlikely that a short telephone interview gave Dr. S enough infor­mation about Ms. C’s medical history and present mental status to ensure that his diag­nostic reasoning would not be faulty. It also is unlikely that telephone screening allowed Dr. S to meet the standard of care for pre­scribing—a process that involves choosing medications suitable to the patient’s clini­cal needs, checking the results of any neces­sary lab tests, and obtaining appropriate informed consent.¹⁹

Satisfying duties
Outpatient facilities can instruct telephone screeners to conduct interviews in ways that reduce inadvertent establishment of a treatment relationship, but establishing such a relationship cannot be avoided in all cases. If a caller is distraught or in crisis, for example, compassion dictates helping him, and some callers (eg, Ms. C) may feel they have a firmer treatment relationship than actually exists.

Once you have created a physician-patient relationship, you must continue that relationship until you end it appropriately.³ That does not mean you have to provide definitive treatment; you simply need to exercise “reasonable care according to the standards of the profession.”^16,20 If a caller telephones in an emergency situation, for example, the screening clinician should take appropriate steps to ensure safety, which might include calling law enforcement or facilitating hospitalization.³

One way to fulfill the duties of a physi­cian-patient relationship inadvertently estab­lished during initial screening is through explicit discharge (if medically appropriate) or transfer of care to another physician.¹⁵ A prudent clinic or practitioner will describe other mental health resources in the commu­nity and sometimes assist with referral if the inquiring potential patient needs services that the provider does not offer.

In many communities, finding appro­priate mental health resources is diffi­cult. Creative approaches to this problem include transitional psychiatry or crisis sup­port clinics that serve as a “bridge” to lon­ger-term services,^21,22 preliminary process groups,²³ and telepsychiatry transitional clinics.²⁴ When a clinic does not accept a person as a patient, the clinic should clearly document 1) key features of the contact and 2) the rationale for that decision
 

Bottom Line
You have a right and a responsibility to screen prospective patients for good fit to your treatment services. In doing so, however, you might inadvertently create a physician-patient relationship. If this happens, you should fulfill your clinical responsibilities, as you would for any patient, by helping the patient get appropriate care from you or another provider.
 

Disclosures
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.

Dear Dr. Mossman,

When I take a call from a treatment-seeker at our outpatient clinic, I ask brief screen­ing questions to determine whether our services would be appropriate. Shortly after I screened one caller, Ms. C, she called back requesting a medication refill and asking about her diagnosis.

What obligation do I have to Ms. C? Is she my patient? Would I be liable if I didn’t help her out and something bad happened to her?

Submitted by “Dr. S”

Office and hospital Web sites, LinkedIn profiles, and Facebook pages are just a few of the ways that people find physicians and learn about their services. But most 21st century doctor-patient relationships still start with 19th century technology: a telephone call.

Talking with prospective patients before setting up an appointment makes sense. A short conversation can clarify whether you offer the services that a caller needs and increases the show-up rate for initial appointments.¹

But if you ask for some personal his­tory and information about symptoms in a screening interview, does that make the caller your patient? Ms. C seemed to have thought so. To find out whether Ms. C was right and to learn how Dr. S should handle initial telephone calls, we’ll look at:
   • the rationale for screening callers before initiating treatment
   • features of screening that can create a doctor-patient relationship
   • how to fulfill duties that result from screening.
 

Why screen prospective patients?
Mental health treatment has become more diversified and specialized over the past 30 years. No psychiatrist nowadays has all the therapeutic skills that all potential patients might need.

Before speaking to you, a treatment-seeker often won’t know whether your practice style will fit his (her) needs. You might prefer not to provide medica­tion management for another clinician’s psychotherapy patient or, if you’re like most psychiatrists, you might not offer psychotherapy.

In the absence of prior obligation (eg, agreeing to provide coverage for an emergency room), physicians may struc­ture their practices and contract for their services as they see fit²—but this leaves you with some obligation to screen poten­tial patients for appropriate mutual fit. In years past, some psychiatrists saw poten­tial patients for an in-office evaluation to decide whether to provide treatment—a practicethat remains acceptable if the per­son is told, when the appointment is made, that the first meeting is “to meet each other and see if you want to establish a treatment relationship.”³ 

Good treatment plans take into account patients’ temperament, emotional state, cognitive capacity, culture, family circum­stances, substance use, and medical his­tory.⁴ Common mental conditions often can be identified in a telephone call.^5,6 Although the diagnostic accuracy of such efforts is uncertain,⁷ such calls can help practitio­ners determine whether they offer the right services for callers. Good decisions about initiating care always take financial pres­sures and constraints into account,⁸ and a pre-appointment telephone call can address those issues, too.

For all these reasons, talking to a prospective patient before he comes to see you makes sense. Screening lets you decide:  
   • whether you’re the right clinician for his needs  
   • who the right clinician is if you are not  
   • whether he should seek emergency evaluation when the situation sounds urgent.

Do phone calls start treatment?
As Dr. S’s questions show, telephone screenings might leave some callers think­ing that treatment has started, even before their first office appointment. Having a treatment relationship is a prerequisite to malpractice liability,⁹ and courts have con­cluded that, under the right circumstances, telephone assessments do create physician-patient relationships.

Creating a physician-patient relationship
How or when might telephone screen­ing make someone your patient? This question doesn’t have a precise answer, but how courts decided similar ques­tions has depended on the questions the physician asked and whether the physician offered what sounded like medical advice.^10,11 A physician-patient relationship forms when the phy­sician takes some implied or affirmative action to treat, see, examine, care for, or offer a diagnosis to the patient,^9,12,13 such as:
   • knowingly accepting someone as a patient¹⁴
   • explicitly agreeing to treat a person
   • “acting in some other way such that the patient might reasonably be led to assume a doctor-patient relationship has been established.”¹⁵

Also, the “fact that a physician does not deal directly with a patient does not neces­sarily preclude the existence of a physician-patient relationship,”¹² so a telephone conversation can create such a relationship if it contains the right elements. Table 1¹⁶ highlights actions that, during the course of screening, might constitute initiation of a physician-patient relationship. Table 2 offers suggestions for managing ini­tial telephone contacts to reduce the chance of inadvertently creating a physician-patient relationship.

Prescribing
Although features of the original screening interview indicated that Ms. C was not yet Dr. S’s patient, prescribing certainly would commence a physician-patient relation­ship.¹⁸ But even if the screening had made Ms. C a patient, refilling her prescription now probably is a bad idea.

Assuming that a physician-patient rela­tionship exists, it is unlikely that a short telephone interview gave Dr. S enough infor­mation about Ms. C’s medical history and present mental status to ensure that his diag­nostic reasoning would not be faulty. It also is unlikely that telephone screening allowed Dr. S to meet the standard of care for pre­scribing—a process that involves choosing medications suitable to the patient’s clini­cal needs, checking the results of any neces­sary lab tests, and obtaining appropriate informed consent.¹⁹

Satisfying duties
Outpatient facilities can instruct telephone screeners to conduct interviews in ways that reduce inadvertent establishment of a treatment relationship, but establishing such a relationship cannot be avoided in all cases. If a caller is distraught or in crisis, for example, compassion dictates helping him, and some callers (eg, Ms. C) may feel they have a firmer treatment relationship than actually exists.

Once you have created a physician-patient relationship, you must continue that relationship until you end it appropriately.³ That does not mean you have to provide definitive treatment; you simply need to exercise “reasonable care according to the standards of the profession.”^16,20 If a caller telephones in an emergency situation, for example, the screening clinician should take appropriate steps to ensure safety, which might include calling law enforcement or facilitating hospitalization.³

One way to fulfill the duties of a physi­cian-patient relationship inadvertently estab­lished during initial screening is through explicit discharge (if medically appropriate) or transfer of care to another physician.¹⁵ A prudent clinic or practitioner will describe other mental health resources in the commu­nity and sometimes assist with referral if the inquiring potential patient needs services that the provider does not offer.

In many communities, finding appro­priate mental health resources is diffi­cult. Creative approaches to this problem include transitional psychiatry or crisis sup­port clinics that serve as a “bridge” to lon­ger-term services,^21,22 preliminary process groups,²³ and telepsychiatry transitional clinics.²⁴ When a clinic does not accept a person as a patient, the clinic should clearly document 1) key features of the contact and 2) the rationale for that decision
 

Bottom Line
You have a right and a responsibility to screen prospective patients for good fit to your treatment services. In doing so, however, you might inadvertently create a physician-patient relationship. If this happens, you should fulfill your clinical responsibilities, as you would for any patient, by helping the patient get appropriate care from you or another provider.
 

Disclosures
The authors report no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.

Postdischarge, the patient was febrile and developed abdominal pain and an odorous vaginal discharge. A month later, exploratory surgery revealed a retained blue towel that had been used for bowel retraction. The patient required open healing of the surgical wound and a temporary colostomy. She developed an incisional hernia after colostomy reversal, and hernia repair required resection of a small portion of the bowel.

PATIENT’S CLAIM It was negligent to use a blue towel to retract the bowel. The towel should have been removed from her abdomen before closure.

DEFENDANTS’ DEFENSE The technician claimed that she did not provide the towel, did not see the towel used, and that she was not told that the towel had to be tracked. She noted that its color indicated that it lacked a radiopaque tag, and that hospital policy forbade use of untagged towels in an open wound.

Dr. A claimed that he specifically requested a blue towel because it was absorbent, that the technician provided the towel, and that the towel’s use prevented the patient from bleeding to death.

VERDICT A $7.2 million New York verdict was returned against both gynecologists and the hospital as the technician’s employer.

MISCARRIAGE AFTER D&C
A few days after a woman thought she miscarried, her family practi-tioner (FP) performed a dilation and curettage (D&C). 

The patient was at work 12 days later when she expelled a fully formed 14-week fetus into a toilet. She was taken to the emergency department (ED), where the cord was cut. Later that day, she passed placental tissue; a repeat D&C was performed the next day.

PATIENT'S CLAIM The FP did not properly perform the first D&C. Although the pathology report was available to the FP prior to the patient’s postoperative visit, the FP failed to inform the patient that no fetal parts had been extracted.

PHYSICIAN’S DEFENSE Because the FP thought that the fetus had been passed prior to the D&C, she believed the pathology report was appropriate.

The patient had been informed of the possibility of retained products of conception after the D&C. The FP had ordered a blood pregnancy test that would have revealed the presence of retained products of conception, but the patient did not have the test. The patient did not contact the FP to report symptoms that felt like labor pains on the day that she passed the fetus.

VERDICT A bench trial resulted in a $51,000 California verdict.

PREGNANT WOMAN COMPLAINS OF LEG PAIN; DIES OF DVT
A 23-year-old woman went to the ED with pain and swelling in her lower left leg and calf. The symptoms were reported to her ObGyn, who examined and then discharged her within a few hours, with instructions to come for her regularly scheduled prenatal visit.

The patient died 2 weeks later. The cause of death was determined to be a pulmonary embolus from a thrombus of the left popliteal vein.

ESTATE’S CLAIM The ObGyn was negligent in failing to test the patient for thrombosis in her left leg when she was in the ED or several days later at the office, when she continued to report leg pain.

PHYSICIAN’S DEFENSE The patient did not have signs of thrombosis at the ED or at the subsequent office visit. The pathologist reported that the clot that caused the embolus appeared fresh. The ObGyn surmised that it had formed after the patient’s last appointment.

VERDICT A Texas defense verdict was returned.

Mother took topiramate; child born with cleft lip and palate: $3M verdict
When a woman learned she was pregnant in December 2007, she was taking topiramate (Topamax) to treat migraine headaches. She discussed tapering off but not discontinuing topiramate usage with her neurologist. The patient’s ObGyn told her that topiramate was safe to take during pregnancy. The child was born with a cleft lip and palate.

PARENTS’ CLAIM Janssen Pharmaceuticals, manufacturer of Topamax, failed to provide adequate warnings about the potential risks associated with Topamax until labeling was changed in March 2011. Janssen knew of potential birth defects associated with Topamax use during pregnancy more than a decade before the labeling change; Janssen’s associate director of regulatory affairs had testified in an earlier hearing that there was knowledge of related birth defects as early as 1996.

DEFENDANTS’ DEFENSE There is uncertainty as to whether exposure to Topamax during pregnancy causes birth defects. The neurologist had warned the patient of possible risks associated with taking Topamax during pregnancy, but the patient had refused to discontinue the drug.

VERDICT A $3 million Pennsylvania verdict was returned.

Related articles:
• Is it time to rethink the use of oral contraceptives in premenopausal women with migraine? Anne H. Calhoun, MD (Audiocast; October 2013)
• How to choose a contraceptive for a patient who has headaches. Kristina M. Tocce, MD; Stephanie B. Teal, MD, MPH (February 2011)
• The gynecologist’s role in managing menstrual migraine. Anne H. Calhoun, MD (April 2010)

WAS MOTHER’S HISTORY OF INCOMPETENT CERVIX IGNORED?
Early in her second pregnancy, a woman told her ObGyn that she had previously miscarried due to an incompetent cervix.

At 24 weeks’ gestation, the patient was admitted to the hospital with back and pelvic pain and vaginal bleeding. Shortly after admission, the ObGyn performed a vaginal examination and ordered ultrasonography (US), which showed that the fetus was in the transverse position and the membranes were bulging.

The ObGyn performed an emergency cesarean delivery, but the premature infant died within 2 hours.

PARENTS’ CLAIM The ObGyn should have performed a cervical cerclage because of the mother’s history of an incompetent cervix. The mother should have been placed on bed rest and monitored every 2 weeks for cervical dilation.

PHYSICIAN’S DEFENSE The patient underwent regular prenatal evaluations for an incompetent cervix, and the findings were always normal.

VERDICT A Florida defense verdict was returned.

Related article:
A stepwise approach to cervical cerclage. Katrin Karl, MD; Michael Katz, MD (Surgical Technique; June 2012)

ObGyn unresponsive to patient’s postsurgical phone calls
In 2009, a 50-year-old woman reported occasional right lower quadrant pain to her ObGyn. US results were normal. The menopausal patient’s history included three cesarean deliveries, a total abdominal hysterectomy, and a laparoscopic ovarian cystectomy. 

When the patient saw her ObGyn in December 2010, she reported intermittent, progressive right lower quadrant pain that radiated down her right leg. She also reported urine loss with coughing or sneezing, and slight pain on intercourse. The ObGyn prescribed oxybutynin chloride (Ditropan) to treat the patient’s incontinence.

Three weeks later, the patient reported bilateral lower quadrant pain to her ObGyn, with minor improvement in incontinence.

The ObGyn performed bilateral salpingo-oophorectomy (BSO) in January 2011. Surgery took 3.5 hours due to extensive adhesiolysis.

After discharge, the patient felt ill and vomited. She attempted to reach the ObGyn by phone several times. That evening, the ObGyn prescribed a suppository to treat nausea and vomiting.

The patient went to the ED later that night and was found to have a perforated colon. Emergency surgery to repair the injury included creation of a colostomy, which was repaired 20 months later.

PATIENT’S CLAIM A proper workup of her symptoms was not performed; BSO was unnecessary. The ObGyn was negligent for failing to respond in a timely manner to her post-discharge phone calls, and did not properly evaluate her postoperative symptoms.

PHYSICIAN’S DEFENSE BSO was warranted. Colon injury is a known complication of the procedure.

VERDICT A $716,976 California verdict was returned, but was reduced to $591,967 under the state cap.

Who delayed delivery? $32.8M verdict for child with CP
An 18-year-old woman at 38 weeks’ gestation went to the hospital in labor. After 3.5 hours, the fetal heart rate dropped to 60 bpm. A nurse repositioned the patient, administered oxygen, and increased intravenous fluids. When the nurse rang the emergency call bell, a second nurse responded. Eighteen minutes after the fetal heart rate first dropped, a nurse rang the call bell again and the on-call ObGyn appeared.

The ObGyn performed a vaginal examination and repositioned the patient. She noted that the fetal heart-rate monitor was not working correctly, and called for an emergency cesarean delivery. The baby was born 42 minutes after the fetal heart rate initially dropped.

The child received a diagnosis of spastic-quadriplegia cerebral palsy (CP). She requires a wheelchair and has severe speech deficits and developmental delays.

PARENT’S CLAIM Cesarean delivery was not performed in a timely manner; the delivery delay was responsible for the injury that caused CP. The ObGyn was negligent in not responding to the initial emergency call. The nurses should have summoned the ObGyn earlier.

DEFENDANTS’ DEFENSE The hospital argued that the nurses followed proper protocol. Furthermore, the hospital noted that the ObGyn did not respond to the first call, and did not request a cesarean delivery for 17 minutes.

The ObGyn claimed that she made the decision to perform cesarean delivery within 5 minutes of her arrival, but it took another 15 minutes to gather the surgical team.

VERDICT A $32,882,860 Pennsylvania verdict was returned against the hospital. The ObGyn was vindicated. 

DIFFICULT DELIVERY: ZAVANELLI MANEUVER
At 38 5/7 weeks’ gestation, a woman went to the hospital for induction of labor. Twenty-four hours later, she began to push. After an hour of pushing, the mother was exhausted and had a low-grade fever, and the fetal heart rate was slowing. Her ObGyn, Dr. A, attempted vacuum extraction and performed a midline episiotomy. Shoulder dystocia was encountered and maneuvers were used, but without success. Another ObGyn, Dr. B, arrived to assist and also attempted the maneuvers.

The physicians agreed to try the Zavanelli maneuver, which involves pushing the baby’s head back inside the vagina and performing a cesarean delivery.

The baby was sent to the neonatal intensive care unit, where her breathing quickly normalized without supplemental oxygen. The child has a brachial plexus injury.

PARENTS’ CLAIM Dr. A should have performed an earlier cesarean delivery. Excessive traction was used when shoulder dystocia maneuvers were attempted.

PHYSICIANS’ DEFENSE The ObGyns’ actions saved the baby’s life and prevented serious injury to both mother and baby. 

VERDICT An Alabama defense verdict was returned.

Related article:
You are the second responder to a shoulder dystocia emergency. What do you do first? Robert L. Barbieri, MD (Editorial; May 2013)

PLACENTA PREVIA FOUND EARLY, BUT FETUS DIES
A woman's first pregnancy was complicated by complete placenta previa. A cesarean delivery was scheduled at 36 weeks’ gestation. However, before that date, the mother developed vaginal bleeding and was taken to the ED. The covering ObGyn was notified of the mother’s arrival within 15 minutes, but did not come to the hospital for 2.5 hours. After examining her, the ObGyn ordered US evaluation and transferred the mother to the obstetric floor. Nursing notes indicate that the fetal heart rate was 120 bpm at that time.

There are no notes from the ObGyn between 5:30 am and mid-afternoon. There is no record of the fetal heart rate when the mother was taken for US in the afternoon, which revealed fetal demise and a large extraovular hematoma. A cesarean delivery was performed. It was determined that the fetus died from placental abruption.

PARENTS’ CLAIM The mother was not adequately evaluated and monitored, which led to fetal demise. Delivery could have proceeded while the fetus was still alive.

PHYSICIAN’S DEFENSE The case was settled during the trial.

VERDICT A $495,000 Massachusetts settlement was reached.

Related articles:
• What is the optimal time to deliver a woman who has placenta previa? John T. Repke, MD (Examining the Evidence; April 2011)
• Act fast when confronted by a coagulopathy postpartum. Robert L. Barbieri, MD (Editorial; March 2012)

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

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

Postdischarge, the patient was febrile and developed abdominal pain and an odorous vaginal discharge. A month later, exploratory surgery revealed a retained blue towel that had been used for bowel retraction. The patient required open healing of the surgical wound and a temporary colostomy. She developed an incisional hernia after colostomy reversal, and hernia repair required resection of a small portion of the bowel.

PATIENT’S CLAIM It was negligent to use a blue towel to retract the bowel. The towel should have been removed from her abdomen before closure.

DEFENDANTS’ DEFENSE The technician claimed that she did not provide the towel, did not see the towel used, and that she was not told that the towel had to be tracked. She noted that its color indicated that it lacked a radiopaque tag, and that hospital policy forbade use of untagged towels in an open wound.

Dr. A claimed that he specifically requested a blue towel because it was absorbent, that the technician provided the towel, and that the towel’s use prevented the patient from bleeding to death.

VERDICT A $7.2 million New York verdict was returned against both gynecologists and the hospital as the technician’s employer.

MISCARRIAGE AFTER D&C
A few days after a woman thought she miscarried, her family practi-tioner (FP) performed a dilation and curettage (D&C). 

The patient was at work 12 days later when she expelled a fully formed 14-week fetus into a toilet. She was taken to the emergency department (ED), where the cord was cut. Later that day, she passed placental tissue; a repeat D&C was performed the next day.

PATIENT'S CLAIM The FP did not properly perform the first D&C. Although the pathology report was available to the FP prior to the patient’s postoperative visit, the FP failed to inform the patient that no fetal parts had been extracted.

PHYSICIAN’S DEFENSE Because the FP thought that the fetus had been passed prior to the D&C, she believed the pathology report was appropriate.

The patient had been informed of the possibility of retained products of conception after the D&C. The FP had ordered a blood pregnancy test that would have revealed the presence of retained products of conception, but the patient did not have the test. The patient did not contact the FP to report symptoms that felt like labor pains on the day that she passed the fetus.

VERDICT A bench trial resulted in a $51,000 California verdict.

PREGNANT WOMAN COMPLAINS OF LEG PAIN; DIES OF DVT
A 23-year-old woman went to the ED with pain and swelling in her lower left leg and calf. The symptoms were reported to her ObGyn, who examined and then discharged her within a few hours, with instructions to come for her regularly scheduled prenatal visit.

The patient died 2 weeks later. The cause of death was determined to be a pulmonary embolus from a thrombus of the left popliteal vein.

ESTATE’S CLAIM The ObGyn was negligent in failing to test the patient for thrombosis in her left leg when she was in the ED or several days later at the office, when she continued to report leg pain.

PHYSICIAN’S DEFENSE The patient did not have signs of thrombosis at the ED or at the subsequent office visit. The pathologist reported that the clot that caused the embolus appeared fresh. The ObGyn surmised that it had formed after the patient’s last appointment.

VERDICT A Texas defense verdict was returned.

Mother took topiramate; child born with cleft lip and palate: $3M verdict
When a woman learned she was pregnant in December 2007, she was taking topiramate (Topamax) to treat migraine headaches. She discussed tapering off but not discontinuing topiramate usage with her neurologist. The patient’s ObGyn told her that topiramate was safe to take during pregnancy. The child was born with a cleft lip and palate.

PARENTS’ CLAIM Janssen Pharmaceuticals, manufacturer of Topamax, failed to provide adequate warnings about the potential risks associated with Topamax until labeling was changed in March 2011. Janssen knew of potential birth defects associated with Topamax use during pregnancy more than a decade before the labeling change; Janssen’s associate director of regulatory affairs had testified in an earlier hearing that there was knowledge of related birth defects as early as 1996.

DEFENDANTS’ DEFENSE There is uncertainty as to whether exposure to Topamax during pregnancy causes birth defects. The neurologist had warned the patient of possible risks associated with taking Topamax during pregnancy, but the patient had refused to discontinue the drug.

VERDICT A $3 million Pennsylvania verdict was returned.

Related articles:
• Is it time to rethink the use of oral contraceptives in premenopausal women with migraine? Anne H. Calhoun, MD (Audiocast; October 2013)
• How to choose a contraceptive for a patient who has headaches. Kristina M. Tocce, MD; Stephanie B. Teal, MD, MPH (February 2011)
• The gynecologist’s role in managing menstrual migraine. Anne H. Calhoun, MD (April 2010)

WAS MOTHER’S HISTORY OF INCOMPETENT CERVIX IGNORED?
Early in her second pregnancy, a woman told her ObGyn that she had previously miscarried due to an incompetent cervix.

At 24 weeks’ gestation, the patient was admitted to the hospital with back and pelvic pain and vaginal bleeding. Shortly after admission, the ObGyn performed a vaginal examination and ordered ultrasonography (US), which showed that the fetus was in the transverse position and the membranes were bulging.

The ObGyn performed an emergency cesarean delivery, but the premature infant died within 2 hours.

PARENTS’ CLAIM The ObGyn should have performed a cervical cerclage because of the mother’s history of an incompetent cervix. The mother should have been placed on bed rest and monitored every 2 weeks for cervical dilation.

PHYSICIAN’S DEFENSE The patient underwent regular prenatal evaluations for an incompetent cervix, and the findings were always normal.

VERDICT A Florida defense verdict was returned.

Related article:
A stepwise approach to cervical cerclage. Katrin Karl, MD; Michael Katz, MD (Surgical Technique; June 2012)

ObGyn unresponsive to patient’s postsurgical phone calls
In 2009, a 50-year-old woman reported occasional right lower quadrant pain to her ObGyn. US results were normal. The menopausal patient’s history included three cesarean deliveries, a total abdominal hysterectomy, and a laparoscopic ovarian cystectomy. 

When the patient saw her ObGyn in December 2010, she reported intermittent, progressive right lower quadrant pain that radiated down her right leg. She also reported urine loss with coughing or sneezing, and slight pain on intercourse. The ObGyn prescribed oxybutynin chloride (Ditropan) to treat the patient’s incontinence.

Three weeks later, the patient reported bilateral lower quadrant pain to her ObGyn, with minor improvement in incontinence.

The ObGyn performed bilateral salpingo-oophorectomy (BSO) in January 2011. Surgery took 3.5 hours due to extensive adhesiolysis.

After discharge, the patient felt ill and vomited. She attempted to reach the ObGyn by phone several times. That evening, the ObGyn prescribed a suppository to treat nausea and vomiting.

The patient went to the ED later that night and was found to have a perforated colon. Emergency surgery to repair the injury included creation of a colostomy, which was repaired 20 months later.

PATIENT’S CLAIM A proper workup of her symptoms was not performed; BSO was unnecessary. The ObGyn was negligent for failing to respond in a timely manner to her post-discharge phone calls, and did not properly evaluate her postoperative symptoms.

PHYSICIAN’S DEFENSE BSO was warranted. Colon injury is a known complication of the procedure.

VERDICT A $716,976 California verdict was returned, but was reduced to $591,967 under the state cap.

Who delayed delivery? $32.8M verdict for child with CP
An 18-year-old woman at 38 weeks’ gestation went to the hospital in labor. After 3.5 hours, the fetal heart rate dropped to 60 bpm. A nurse repositioned the patient, administered oxygen, and increased intravenous fluids. When the nurse rang the emergency call bell, a second nurse responded. Eighteen minutes after the fetal heart rate first dropped, a nurse rang the call bell again and the on-call ObGyn appeared.

The ObGyn performed a vaginal examination and repositioned the patient. She noted that the fetal heart-rate monitor was not working correctly, and called for an emergency cesarean delivery. The baby was born 42 minutes after the fetal heart rate initially dropped.

The child received a diagnosis of spastic-quadriplegia cerebral palsy (CP). She requires a wheelchair and has severe speech deficits and developmental delays.

PARENT’S CLAIM Cesarean delivery was not performed in a timely manner; the delivery delay was responsible for the injury that caused CP. The ObGyn was negligent in not responding to the initial emergency call. The nurses should have summoned the ObGyn earlier.

DEFENDANTS’ DEFENSE The hospital argued that the nurses followed proper protocol. Furthermore, the hospital noted that the ObGyn did not respond to the first call, and did not request a cesarean delivery for 17 minutes.

The ObGyn claimed that she made the decision to perform cesarean delivery within 5 minutes of her arrival, but it took another 15 minutes to gather the surgical team.

VERDICT A $32,882,860 Pennsylvania verdict was returned against the hospital. The ObGyn was vindicated. 

DIFFICULT DELIVERY: ZAVANELLI MANEUVER
At 38 5/7 weeks’ gestation, a woman went to the hospital for induction of labor. Twenty-four hours later, she began to push. After an hour of pushing, the mother was exhausted and had a low-grade fever, and the fetal heart rate was slowing. Her ObGyn, Dr. A, attempted vacuum extraction and performed a midline episiotomy. Shoulder dystocia was encountered and maneuvers were used, but without success. Another ObGyn, Dr. B, arrived to assist and also attempted the maneuvers.

The physicians agreed to try the Zavanelli maneuver, which involves pushing the baby’s head back inside the vagina and performing a cesarean delivery.

The baby was sent to the neonatal intensive care unit, where her breathing quickly normalized without supplemental oxygen. The child has a brachial plexus injury.

PARENTS’ CLAIM Dr. A should have performed an earlier cesarean delivery. Excessive traction was used when shoulder dystocia maneuvers were attempted.

PHYSICIANS’ DEFENSE The ObGyns’ actions saved the baby’s life and prevented serious injury to both mother and baby. 

VERDICT An Alabama defense verdict was returned.

Related article:
You are the second responder to a shoulder dystocia emergency. What do you do first? Robert L. Barbieri, MD (Editorial; May 2013)

PLACENTA PREVIA FOUND EARLY, BUT FETUS DIES
A woman's first pregnancy was complicated by complete placenta previa. A cesarean delivery was scheduled at 36 weeks’ gestation. However, before that date, the mother developed vaginal bleeding and was taken to the ED. The covering ObGyn was notified of the mother’s arrival within 15 minutes, but did not come to the hospital for 2.5 hours. After examining her, the ObGyn ordered US evaluation and transferred the mother to the obstetric floor. Nursing notes indicate that the fetal heart rate was 120 bpm at that time.

There are no notes from the ObGyn between 5:30 am and mid-afternoon. There is no record of the fetal heart rate when the mother was taken for US in the afternoon, which revealed fetal demise and a large extraovular hematoma. A cesarean delivery was performed. It was determined that the fetus died from placental abruption.

PARENTS’ CLAIM The mother was not adequately evaluated and monitored, which led to fetal demise. Delivery could have proceeded while the fetus was still alive.

PHYSICIAN’S DEFENSE The case was settled during the trial.

VERDICT A $495,000 Massachusetts settlement was reached.

Related articles:
• What is the optimal time to deliver a woman who has placenta previa? John T. Repke, MD (Examining the Evidence; April 2011)
• Act fast when confronted by a coagulopathy postpartum. Robert L. Barbieri, MD (Editorial; March 2012)

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

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

Postdischarge, the patient was febrile and developed abdominal pain and an odorous vaginal discharge. A month later, exploratory surgery revealed a retained blue towel that had been used for bowel retraction. The patient required open healing of the surgical wound and a temporary colostomy. She developed an incisional hernia after colostomy reversal, and hernia repair required resection of a small portion of the bowel.

PATIENT’S CLAIM It was negligent to use a blue towel to retract the bowel. The towel should have been removed from her abdomen before closure.

DEFENDANTS’ DEFENSE The technician claimed that she did not provide the towel, did not see the towel used, and that she was not told that the towel had to be tracked. She noted that its color indicated that it lacked a radiopaque tag, and that hospital policy forbade use of untagged towels in an open wound.

Dr. A claimed that he specifically requested a blue towel because it was absorbent, that the technician provided the towel, and that the towel’s use prevented the patient from bleeding to death.

VERDICT A $7.2 million New York verdict was returned against both gynecologists and the hospital as the technician’s employer.

MISCARRIAGE AFTER D&C
A few days after a woman thought she miscarried, her family practi-tioner (FP) performed a dilation and curettage (D&C). 

The patient was at work 12 days later when she expelled a fully formed 14-week fetus into a toilet. She was taken to the emergency department (ED), where the cord was cut. Later that day, she passed placental tissue; a repeat D&C was performed the next day.

PATIENT'S CLAIM The FP did not properly perform the first D&C. Although the pathology report was available to the FP prior to the patient’s postoperative visit, the FP failed to inform the patient that no fetal parts had been extracted.

PHYSICIAN’S DEFENSE Because the FP thought that the fetus had been passed prior to the D&C, she believed the pathology report was appropriate.

The patient had been informed of the possibility of retained products of conception after the D&C. The FP had ordered a blood pregnancy test that would have revealed the presence of retained products of conception, but the patient did not have the test. The patient did not contact the FP to report symptoms that felt like labor pains on the day that she passed the fetus.

VERDICT A bench trial resulted in a $51,000 California verdict.

PREGNANT WOMAN COMPLAINS OF LEG PAIN; DIES OF DVT
A 23-year-old woman went to the ED with pain and swelling in her lower left leg and calf. The symptoms were reported to her ObGyn, who examined and then discharged her within a few hours, with instructions to come for her regularly scheduled prenatal visit.

The patient died 2 weeks later. The cause of death was determined to be a pulmonary embolus from a thrombus of the left popliteal vein.

ESTATE’S CLAIM The ObGyn was negligent in failing to test the patient for thrombosis in her left leg when she was in the ED or several days later at the office, when she continued to report leg pain.

PHYSICIAN’S DEFENSE The patient did not have signs of thrombosis at the ED or at the subsequent office visit. The pathologist reported that the clot that caused the embolus appeared fresh. The ObGyn surmised that it had formed after the patient’s last appointment.

VERDICT A Texas defense verdict was returned.

Mother took topiramate; child born with cleft lip and palate: $3M verdict
When a woman learned she was pregnant in December 2007, she was taking topiramate (Topamax) to treat migraine headaches. She discussed tapering off but not discontinuing topiramate usage with her neurologist. The patient’s ObGyn told her that topiramate was safe to take during pregnancy. The child was born with a cleft lip and palate.

PARENTS’ CLAIM Janssen Pharmaceuticals, manufacturer of Topamax, failed to provide adequate warnings about the potential risks associated with Topamax until labeling was changed in March 2011. Janssen knew of potential birth defects associated with Topamax use during pregnancy more than a decade before the labeling change; Janssen’s associate director of regulatory affairs had testified in an earlier hearing that there was knowledge of related birth defects as early as 1996.

DEFENDANTS’ DEFENSE There is uncertainty as to whether exposure to Topamax during pregnancy causes birth defects. The neurologist had warned the patient of possible risks associated with taking Topamax during pregnancy, but the patient had refused to discontinue the drug.

VERDICT A $3 million Pennsylvania verdict was returned.

Related articles:
• Is it time to rethink the use of oral contraceptives in premenopausal women with migraine? Anne H. Calhoun, MD (Audiocast; October 2013)
• How to choose a contraceptive for a patient who has headaches. Kristina M. Tocce, MD; Stephanie B. Teal, MD, MPH (February 2011)
• The gynecologist’s role in managing menstrual migraine. Anne H. Calhoun, MD (April 2010)

WAS MOTHER’S HISTORY OF INCOMPETENT CERVIX IGNORED?
Early in her second pregnancy, a woman told her ObGyn that she had previously miscarried due to an incompetent cervix.

At 24 weeks’ gestation, the patient was admitted to the hospital with back and pelvic pain and vaginal bleeding. Shortly after admission, the ObGyn performed a vaginal examination and ordered ultrasonography (US), which showed that the fetus was in the transverse position and the membranes were bulging.

The ObGyn performed an emergency cesarean delivery, but the premature infant died within 2 hours.

PARENTS’ CLAIM The ObGyn should have performed a cervical cerclage because of the mother’s history of an incompetent cervix. The mother should have been placed on bed rest and monitored every 2 weeks for cervical dilation.

PHYSICIAN’S DEFENSE The patient underwent regular prenatal evaluations for an incompetent cervix, and the findings were always normal.

VERDICT A Florida defense verdict was returned.

Related article:
A stepwise approach to cervical cerclage. Katrin Karl, MD; Michael Katz, MD (Surgical Technique; June 2012)

ObGyn unresponsive to patient’s postsurgical phone calls
In 2009, a 50-year-old woman reported occasional right lower quadrant pain to her ObGyn. US results were normal. The menopausal patient’s history included three cesarean deliveries, a total abdominal hysterectomy, and a laparoscopic ovarian cystectomy. 

When the patient saw her ObGyn in December 2010, she reported intermittent, progressive right lower quadrant pain that radiated down her right leg. She also reported urine loss with coughing or sneezing, and slight pain on intercourse. The ObGyn prescribed oxybutynin chloride (Ditropan) to treat the patient’s incontinence.

Three weeks later, the patient reported bilateral lower quadrant pain to her ObGyn, with minor improvement in incontinence.

The ObGyn performed bilateral salpingo-oophorectomy (BSO) in January 2011. Surgery took 3.5 hours due to extensive adhesiolysis.

After discharge, the patient felt ill and vomited. She attempted to reach the ObGyn by phone several times. That evening, the ObGyn prescribed a suppository to treat nausea and vomiting.

The patient went to the ED later that night and was found to have a perforated colon. Emergency surgery to repair the injury included creation of a colostomy, which was repaired 20 months later.

PATIENT’S CLAIM A proper workup of her symptoms was not performed; BSO was unnecessary. The ObGyn was negligent for failing to respond in a timely manner to her post-discharge phone calls, and did not properly evaluate her postoperative symptoms.

PHYSICIAN’S DEFENSE BSO was warranted. Colon injury is a known complication of the procedure.

VERDICT A $716,976 California verdict was returned, but was reduced to $591,967 under the state cap.

Who delayed delivery? $32.8M verdict for child with CP
An 18-year-old woman at 38 weeks’ gestation went to the hospital in labor. After 3.5 hours, the fetal heart rate dropped to 60 bpm. A nurse repositioned the patient, administered oxygen, and increased intravenous fluids. When the nurse rang the emergency call bell, a second nurse responded. Eighteen minutes after the fetal heart rate first dropped, a nurse rang the call bell again and the on-call ObGyn appeared.

The ObGyn performed a vaginal examination and repositioned the patient. She noted that the fetal heart-rate monitor was not working correctly, and called for an emergency cesarean delivery. The baby was born 42 minutes after the fetal heart rate initially dropped.

The child received a diagnosis of spastic-quadriplegia cerebral palsy (CP). She requires a wheelchair and has severe speech deficits and developmental delays.

PARENT’S CLAIM Cesarean delivery was not performed in a timely manner; the delivery delay was responsible for the injury that caused CP. The ObGyn was negligent in not responding to the initial emergency call. The nurses should have summoned the ObGyn earlier.

DEFENDANTS’ DEFENSE The hospital argued that the nurses followed proper protocol. Furthermore, the hospital noted that the ObGyn did not respond to the first call, and did not request a cesarean delivery for 17 minutes.

The ObGyn claimed that she made the decision to perform cesarean delivery within 5 minutes of her arrival, but it took another 15 minutes to gather the surgical team.

VERDICT A $32,882,860 Pennsylvania verdict was returned against the hospital. The ObGyn was vindicated. 

DIFFICULT DELIVERY: ZAVANELLI MANEUVER
At 38 5/7 weeks’ gestation, a woman went to the hospital for induction of labor. Twenty-four hours later, she began to push. After an hour of pushing, the mother was exhausted and had a low-grade fever, and the fetal heart rate was slowing. Her ObGyn, Dr. A, attempted vacuum extraction and performed a midline episiotomy. Shoulder dystocia was encountered and maneuvers were used, but without success. Another ObGyn, Dr. B, arrived to assist and also attempted the maneuvers.

The physicians agreed to try the Zavanelli maneuver, which involves pushing the baby’s head back inside the vagina and performing a cesarean delivery.

The baby was sent to the neonatal intensive care unit, where her breathing quickly normalized without supplemental oxygen. The child has a brachial plexus injury.

PARENTS’ CLAIM Dr. A should have performed an earlier cesarean delivery. Excessive traction was used when shoulder dystocia maneuvers were attempted.

PHYSICIANS’ DEFENSE The ObGyns’ actions saved the baby’s life and prevented serious injury to both mother and baby. 

VERDICT An Alabama defense verdict was returned.

Related article:
You are the second responder to a shoulder dystocia emergency. What do you do first? Robert L. Barbieri, MD (Editorial; May 2013)

PLACENTA PREVIA FOUND EARLY, BUT FETUS DIES
A woman's first pregnancy was complicated by complete placenta previa. A cesarean delivery was scheduled at 36 weeks’ gestation. However, before that date, the mother developed vaginal bleeding and was taken to the ED. The covering ObGyn was notified of the mother’s arrival within 15 minutes, but did not come to the hospital for 2.5 hours. After examining her, the ObGyn ordered US evaluation and transferred the mother to the obstetric floor. Nursing notes indicate that the fetal heart rate was 120 bpm at that time.

There are no notes from the ObGyn between 5:30 am and mid-afternoon. There is no record of the fetal heart rate when the mother was taken for US in the afternoon, which revealed fetal demise and a large extraovular hematoma. A cesarean delivery was performed. It was determined that the fetus died from placental abruption.

PARENTS’ CLAIM The mother was not adequately evaluated and monitored, which led to fetal demise. Delivery could have proceeded while the fetus was still alive.

PHYSICIAN’S DEFENSE The case was settled during the trial.

VERDICT A $495,000 Massachusetts settlement was reached.

Related articles:
• What is the optimal time to deliver a woman who has placenta previa? John T. Repke, MD (Examining the Evidence; April 2011)
• Act fast when confronted by a coagulopathy postpartum. Robert L. Barbieri, MD (Editorial; March 2012)

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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