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Listen to John Vazquez, MD, discuss neurophobia and tips for adjusting to discomfort in treating neuro patients
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Oklahoma Hospitalist Discusses Medical Center Devastation, Community Response
Click here to listen to more of our interview with Dr. Womble
Click here to listen to more of our interview with Dr. Womble
Click here to listen to more of our interview with Dr. Womble
Listen to Project BOOST lead analyst Luke Hansen, MD, MPH, discuss the outcomes study published in JHM
Click here to listen to our interview with Dr. Hansen
Click here to listen to our interview with Dr. Hansen
Click here to listen to our interview with Dr. Hansen
Hospitalist Advocate Finds Niche in Hospital Medicine
Bryan Weiss, MBA, likes to say he’s “passionate” about HM. The twist? He isn’t even a practicing physician. Nevertheless, he’s been involved in medicine for 25 years, having worked with hospitals, health plans, and multispecialty groups before joining IPC: The Hospitalist Company in 2003. During his first few years working in the field, he realized the specialty had a bright future.
“I enjoy working with the hospitalists and assisting them to become the cornerstone of the hospitals they work in,” says Weiss, managing director of the consulting services practice at Irving, Texas-based MedSynergies. “Creating the open communications among the hospital administration, emergency room, nursing, case management, consultants, and PCPs—as well as moving the specialty forward with actionable, balanced scorecards—is the most satisfying component.”
Weiss previously was president of the hospitalist division at Hospital Physician Partners of Hollywood, Fla., and COO of inpatient services at Dallas-based EmCare. He graduated with a bachelor’s degree in business administration from California State University and earned his master’s degree from California Lutheran University.
He is one of nine new Team Hospitalist members, The Hospitalist’s volunteer group of editorial advisors. He sees challenges ahead for hospitalists, administrators, and the health-care system, but he also has faith the specialty will be up to the task.
“I think the incredibly rapid growth of the specialty is huge,” he says. “The acceptance of the specialty has gone from needing to explain what a hospitalist is to insurance companies and hospitals and other physicians to [knowing] the value of a hospitalist program and how disadvantaged a hospital is without a program.”
Question: As a nonphysician, explain your role in the health-care system and HM.
Answer: I want to make sure the hospitalist team truly operates as a team and not a bunch of physicians who happen to work in the same hospital. The bottom line is it is about the patient experience and how hospitalists will be pivotal as health care moves to more risk-based and population health.
Q: What is your biggest professional challenge?
A: Ensuring the alignment of the goals of the hospital and the hospitalists are translated to measurable outcomes is probably the biggest challenge in the current state of health care.
Q: What is your biggest professional reward?
A: The number of hospital administrators who value my contribution and commitment to making the hospitalist program at their facilities the best they can become.
Q: When you aren’t working, what is important to you?
A: My family time and the balance of work and life have become the most important as I have matured professionally.
Q: What’s next professionally?
A: I am doing my ideal professional position.
Q: If you had to do it all over again, what career would you be doing right now?
A: If I wasn’t an executive in healthcare, I would have probably been a lawyer since I contemplated law school over my MBA.
Q: What’s the best book you’ve read recently?
A: New Orleans Saints quarterback Drew Brees’ book, “Coming Back Stronger.” As an avid sports fan, I appreciate what this athlete experienced personally and professionally, and still was able to pick himself back up from situations that many of us would have struggled to overcome. He is one of the biggest class acts in sports and the book just solidified that opinion. We can apply what he says to our own lives and make ourselves better in what we do as leaders.
Q: How many Apple products (phones, iPods, tablets, iTunes, etc.) do you interface with in a given week?
A: I am constantly on my iPad and use iTunes regularly during my weekly travels. My cellphone is an Android, so only two Apple products, but I use Apple countless times a week.
Richard Quinn is a freelance author in New Jersey.
Bryan Weiss, MBA, likes to say he’s “passionate” about HM. The twist? He isn’t even a practicing physician. Nevertheless, he’s been involved in medicine for 25 years, having worked with hospitals, health plans, and multispecialty groups before joining IPC: The Hospitalist Company in 2003. During his first few years working in the field, he realized the specialty had a bright future.
“I enjoy working with the hospitalists and assisting them to become the cornerstone of the hospitals they work in,” says Weiss, managing director of the consulting services practice at Irving, Texas-based MedSynergies. “Creating the open communications among the hospital administration, emergency room, nursing, case management, consultants, and PCPs—as well as moving the specialty forward with actionable, balanced scorecards—is the most satisfying component.”
Weiss previously was president of the hospitalist division at Hospital Physician Partners of Hollywood, Fla., and COO of inpatient services at Dallas-based EmCare. He graduated with a bachelor’s degree in business administration from California State University and earned his master’s degree from California Lutheran University.
He is one of nine new Team Hospitalist members, The Hospitalist’s volunteer group of editorial advisors. He sees challenges ahead for hospitalists, administrators, and the health-care system, but he also has faith the specialty will be up to the task.
“I think the incredibly rapid growth of the specialty is huge,” he says. “The acceptance of the specialty has gone from needing to explain what a hospitalist is to insurance companies and hospitals and other physicians to [knowing] the value of a hospitalist program and how disadvantaged a hospital is without a program.”
Question: As a nonphysician, explain your role in the health-care system and HM.
Answer: I want to make sure the hospitalist team truly operates as a team and not a bunch of physicians who happen to work in the same hospital. The bottom line is it is about the patient experience and how hospitalists will be pivotal as health care moves to more risk-based and population health.
Q: What is your biggest professional challenge?
A: Ensuring the alignment of the goals of the hospital and the hospitalists are translated to measurable outcomes is probably the biggest challenge in the current state of health care.
Q: What is your biggest professional reward?
A: The number of hospital administrators who value my contribution and commitment to making the hospitalist program at their facilities the best they can become.
Q: When you aren’t working, what is important to you?
A: My family time and the balance of work and life have become the most important as I have matured professionally.
Q: What’s next professionally?
A: I am doing my ideal professional position.
Q: If you had to do it all over again, what career would you be doing right now?
A: If I wasn’t an executive in healthcare, I would have probably been a lawyer since I contemplated law school over my MBA.
Q: What’s the best book you’ve read recently?
A: New Orleans Saints quarterback Drew Brees’ book, “Coming Back Stronger.” As an avid sports fan, I appreciate what this athlete experienced personally and professionally, and still was able to pick himself back up from situations that many of us would have struggled to overcome. He is one of the biggest class acts in sports and the book just solidified that opinion. We can apply what he says to our own lives and make ourselves better in what we do as leaders.
Q: How many Apple products (phones, iPods, tablets, iTunes, etc.) do you interface with in a given week?
A: I am constantly on my iPad and use iTunes regularly during my weekly travels. My cellphone is an Android, so only two Apple products, but I use Apple countless times a week.
Richard Quinn is a freelance author in New Jersey.
Bryan Weiss, MBA, likes to say he’s “passionate” about HM. The twist? He isn’t even a practicing physician. Nevertheless, he’s been involved in medicine for 25 years, having worked with hospitals, health plans, and multispecialty groups before joining IPC: The Hospitalist Company in 2003. During his first few years working in the field, he realized the specialty had a bright future.
“I enjoy working with the hospitalists and assisting them to become the cornerstone of the hospitals they work in,” says Weiss, managing director of the consulting services practice at Irving, Texas-based MedSynergies. “Creating the open communications among the hospital administration, emergency room, nursing, case management, consultants, and PCPs—as well as moving the specialty forward with actionable, balanced scorecards—is the most satisfying component.”
Weiss previously was president of the hospitalist division at Hospital Physician Partners of Hollywood, Fla., and COO of inpatient services at Dallas-based EmCare. He graduated with a bachelor’s degree in business administration from California State University and earned his master’s degree from California Lutheran University.
He is one of nine new Team Hospitalist members, The Hospitalist’s volunteer group of editorial advisors. He sees challenges ahead for hospitalists, administrators, and the health-care system, but he also has faith the specialty will be up to the task.
“I think the incredibly rapid growth of the specialty is huge,” he says. “The acceptance of the specialty has gone from needing to explain what a hospitalist is to insurance companies and hospitals and other physicians to [knowing] the value of a hospitalist program and how disadvantaged a hospital is without a program.”
Question: As a nonphysician, explain your role in the health-care system and HM.
Answer: I want to make sure the hospitalist team truly operates as a team and not a bunch of physicians who happen to work in the same hospital. The bottom line is it is about the patient experience and how hospitalists will be pivotal as health care moves to more risk-based and population health.
Q: What is your biggest professional challenge?
A: Ensuring the alignment of the goals of the hospital and the hospitalists are translated to measurable outcomes is probably the biggest challenge in the current state of health care.
Q: What is your biggest professional reward?
A: The number of hospital administrators who value my contribution and commitment to making the hospitalist program at their facilities the best they can become.
Q: When you aren’t working, what is important to you?
A: My family time and the balance of work and life have become the most important as I have matured professionally.
Q: What’s next professionally?
A: I am doing my ideal professional position.
Q: If you had to do it all over again, what career would you be doing right now?
A: If I wasn’t an executive in healthcare, I would have probably been a lawyer since I contemplated law school over my MBA.
Q: What’s the best book you’ve read recently?
A: New Orleans Saints quarterback Drew Brees’ book, “Coming Back Stronger.” As an avid sports fan, I appreciate what this athlete experienced personally and professionally, and still was able to pick himself back up from situations that many of us would have struggled to overcome. He is one of the biggest class acts in sports and the book just solidified that opinion. We can apply what he says to our own lives and make ourselves better in what we do as leaders.
Q: How many Apple products (phones, iPods, tablets, iTunes, etc.) do you interface with in a given week?
A: I am constantly on my iPad and use iTunes regularly during my weekly travels. My cellphone is an Android, so only two Apple products, but I use Apple countless times a week.
Richard Quinn is a freelance author in New Jersey.
Bowel perforation causes woman’s death: $1.5M verdict
A 46-year-old woman underwent laparoscopic supracervical hysterectomy to remove her uterus but preserve her cervix. Postsurgically, she had difficulty breathing deeply and reported abdominal pain. The nurses and on-call physician reassured her that she was experiencing “gas pains” due to insufflation. After same-day discharge, she stayed in a motel room to avoid a second-floor bedroom at home.
She called the gynecologist’s office the following day to report continued pain and severe hot flashes and sweats. The gynecologist instructed his nurse to advise the patient to stop taking her birth control pill (ethinyl estradiol/norethindrone, Microgestin) and “to ride out” the hot flashes.
The woman was found dead in her motel room the next morning. An autopsy revealed a perforated small intestine with leakage into the abdominal cavity causing sepsis, multi-organ failure, and death.
ESTATE’S CLAIM The gynecologist reviewed the medical records and found an error in the operative report, but he made no addendum or late entry to correct the operative report. His defense counsel instructed him to draft a letter clarifying the surgery; this clarification was given to defense experts. The description of the procedure in the clarification was different from what was described in the medical records. For example, the clarification reported making 4 incisions for 4 trocars; the operative report indicated using 3 trocars. The pathologist and 2 nurses who treated the patient after surgery confirmed that there were 3 trocar incisions. The pathologist found no tissue necrosis at or around the perforation site, indicating that the perforation likely occurred during surgery.
PHYSICIAN’S DEFENSE Bowel perforation is a known complication of the procedure. The perforation was not present at the time of surgery because leakage of bowel content would have been obvious.
VERDICT A $1.5 million Virginia settlement was reached.
Retained products of conception after D&C
When sonography indicated that a 30-year-old woman was pregnant, she decided to abort the pregnancy and was given mifepristone.
Another sonogram 5 weeks later showed retained products of conception within the uterus. An ObGyn performed dilation and curettage (D&C) at an outpatient clinic. Because he believed the cannula did not remove everything, he used a curette to scrape the uterus. After the patient was dizzy, hypotensive, and in pain for 4 hours, an ambulance transported her to a hospital. Perforations of the uterus and sigmoid colon were discovered and repaired during emergency surgery. The patient has a large scar on her abdomen.
PATIENT'S CLAIM The ObGyn did not perform the D&C properly and perforated the uterus and colon. An earlier response to symptoms could have prevented repair surgery. Damage to the uterus may now preclude her from having a successful pregnancy.
DEFENDANTS’ DEFENSE The ObGyn argued that the aborted pregnancy was ectopic; spontaneous rupture caused the perforations.
VERDICT A $340,000 New York settlement was reached with the ObGyn. By the time of trial, the clinic had closed.
Wrong-site biopsy; records altered
A 40-year-old woman underwent excisional breast biopsy. The wrong lump was removed and the woman had to have another procedure.
PATIENT'S CLAIM The hospital’s nursing staff failed to properly mark the operative site. The breast surgeon did not confirm that the markings were correct. The surgeon altered the written operative report after the surgery to conceal negligence.
DEFENDANTS’ DEFENSE The nurses properly marked the biopsy site, but the surgeon chose another route. The surgeon edited the original report to reflect events that occurred during surgery that had not been included in the original dictation. The added material gave justification for performing the procedure at a different site than originally intended.
VERDICT A $15,500 Connecticut verdict was returned.
Second twin has CP and brain damage: $10M settlement
A woman gave birth to twins at an Army hospital. The first twin was delivered without complications. The second twin developed a prolapsed cord during delivery of the first twin. A resident and the attending physician allowed the mother to continue with vaginal delivery. The heart-rate monitor showed fetal distress, but the medical staff did not respond. After an hour, another physician was consulted, and he ordered immediate delivery. The attending physician decided to continue with vaginal delivery using forceps, but it took 15 minutes to locate forceps in the hospital. The infant suffered severe brain damage and cerebral palsy. She will require 24-hour nursing care for life, including treatment of a tracheostomy.
PARENTS' CLAIM The physicians were negligent for not reacting to non-reassuring monitor strips and for allowing the vaginal delivery to continue. An emergency cesarean delivery should have been performed.
DEFENDANTS’ DEFENSE The case was settled before trial.
VERDICT A $10 million North Carolina settlement was reached for past medical bills and future care.
Faulty biopsies: breast cancer diagnosis missed
In September 2006, a 40-year-old woman underwent breast sonography. A radiologist, Dr. A, reported finding a mass and a smaller nodule in the right breast, and recommended a biopsy of each area. Two weeks later, a second radiologist, Dr. B, biopsied the larger of the two areas and diagnosed a hyalinized fibroadenoma. He did not biopsy the smaller growth, but reported it as a benign nodule. He recommended more frequent screenings. The patient was referred to a surgeon, who determined that she should be seen in 6 months.
In June 2007, the patient underwent right-breast sonography that revealed cysts and three nodules. The surgeon recommended a biopsy, but the biopsy was performed on only two of three nodules. A third radiologist, Dr. C, determined that the nodules were all benign.
In November 2007, when the patient reported a painful lump in her right breast, her gynecologist ordered mammography, which revealed lesions. A biopsy revealed that one lesion was stage III invasive ductal carcinoma. The patient underwent extensive treatment, including a mastectomy, lymphadenectomy, chemotherapy, and radiation therapy, and prophylactic surgical reduction of the left breast.
PATIENT'S CLAIM The cancer should have been diagnosed in September 2006. Prompt treatment would have decreased the progression of the disease. The September 2006 biopsy should have included both lumps, as recommended by Dr. A.
DEFENDANTS’ DEFENSE There was no indication of cancer in September 2006. Reasonable follow-up care was given.
VERDICT A New York defense verdict was returned.
Tumor not found during surgery; BSO performed
A 41-year-old woman underwent surgery to remove a pelvic tumor in November 2004. The gynecologist was unable to locate the tumor during surgery. He performed bilateral salpingo-oophorectomy (BSO) because of a visual diagnosis of endometriosis. In August 2005, the patient underwent surgical removal of the tumor by another surgeon. She was hospitalized for several weeks and suffered a large scar that required additional surgery.
PATIENT'S CLAIM BSO was unnecessary, and caused early menopause, with vaginal atrophy and dryness, depression, fatigue, insomnia, loss of hair, and other symptoms.
The patient claimed lack of informed consent. From Ecuador, the patient’s command of English was not sufficient for her to completely understand the consent form; an interpreter should have been provided.
DEFENDANTS’ DEFENSE BSO did not cause a significant acceleration of the onset of menopause. It was necessary to treat the endometriosis.
The patient signed a consent form that included BSO. The patient did not indicate that she did not understand the language on the form; had she asked, an interpreter would have been provided.
VERDICT A $750,000 New York settlement was reached with the gynecologist and medical center.
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.
A 46-year-old woman underwent laparoscopic supracervical hysterectomy to remove her uterus but preserve her cervix. Postsurgically, she had difficulty breathing deeply and reported abdominal pain. The nurses and on-call physician reassured her that she was experiencing “gas pains” due to insufflation. After same-day discharge, she stayed in a motel room to avoid a second-floor bedroom at home.
She called the gynecologist’s office the following day to report continued pain and severe hot flashes and sweats. The gynecologist instructed his nurse to advise the patient to stop taking her birth control pill (ethinyl estradiol/norethindrone, Microgestin) and “to ride out” the hot flashes.
The woman was found dead in her motel room the next morning. An autopsy revealed a perforated small intestine with leakage into the abdominal cavity causing sepsis, multi-organ failure, and death.
ESTATE’S CLAIM The gynecologist reviewed the medical records and found an error in the operative report, but he made no addendum or late entry to correct the operative report. His defense counsel instructed him to draft a letter clarifying the surgery; this clarification was given to defense experts. The description of the procedure in the clarification was different from what was described in the medical records. For example, the clarification reported making 4 incisions for 4 trocars; the operative report indicated using 3 trocars. The pathologist and 2 nurses who treated the patient after surgery confirmed that there were 3 trocar incisions. The pathologist found no tissue necrosis at or around the perforation site, indicating that the perforation likely occurred during surgery.
PHYSICIAN’S DEFENSE Bowel perforation is a known complication of the procedure. The perforation was not present at the time of surgery because leakage of bowel content would have been obvious.
VERDICT A $1.5 million Virginia settlement was reached.
Retained products of conception after D&C
When sonography indicated that a 30-year-old woman was pregnant, she decided to abort the pregnancy and was given mifepristone.
Another sonogram 5 weeks later showed retained products of conception within the uterus. An ObGyn performed dilation and curettage (D&C) at an outpatient clinic. Because he believed the cannula did not remove everything, he used a curette to scrape the uterus. After the patient was dizzy, hypotensive, and in pain for 4 hours, an ambulance transported her to a hospital. Perforations of the uterus and sigmoid colon were discovered and repaired during emergency surgery. The patient has a large scar on her abdomen.
PATIENT'S CLAIM The ObGyn did not perform the D&C properly and perforated the uterus and colon. An earlier response to symptoms could have prevented repair surgery. Damage to the uterus may now preclude her from having a successful pregnancy.
DEFENDANTS’ DEFENSE The ObGyn argued that the aborted pregnancy was ectopic; spontaneous rupture caused the perforations.
VERDICT A $340,000 New York settlement was reached with the ObGyn. By the time of trial, the clinic had closed.
Wrong-site biopsy; records altered
A 40-year-old woman underwent excisional breast biopsy. The wrong lump was removed and the woman had to have another procedure.
PATIENT'S CLAIM The hospital’s nursing staff failed to properly mark the operative site. The breast surgeon did not confirm that the markings were correct. The surgeon altered the written operative report after the surgery to conceal negligence.
DEFENDANTS’ DEFENSE The nurses properly marked the biopsy site, but the surgeon chose another route. The surgeon edited the original report to reflect events that occurred during surgery that had not been included in the original dictation. The added material gave justification for performing the procedure at a different site than originally intended.
VERDICT A $15,500 Connecticut verdict was returned.
Second twin has CP and brain damage: $10M settlement
A woman gave birth to twins at an Army hospital. The first twin was delivered without complications. The second twin developed a prolapsed cord during delivery of the first twin. A resident and the attending physician allowed the mother to continue with vaginal delivery. The heart-rate monitor showed fetal distress, but the medical staff did not respond. After an hour, another physician was consulted, and he ordered immediate delivery. The attending physician decided to continue with vaginal delivery using forceps, but it took 15 minutes to locate forceps in the hospital. The infant suffered severe brain damage and cerebral palsy. She will require 24-hour nursing care for life, including treatment of a tracheostomy.
PARENTS' CLAIM The physicians were negligent for not reacting to non-reassuring monitor strips and for allowing the vaginal delivery to continue. An emergency cesarean delivery should have been performed.
DEFENDANTS’ DEFENSE The case was settled before trial.
VERDICT A $10 million North Carolina settlement was reached for past medical bills and future care.
Faulty biopsies: breast cancer diagnosis missed
In September 2006, a 40-year-old woman underwent breast sonography. A radiologist, Dr. A, reported finding a mass and a smaller nodule in the right breast, and recommended a biopsy of each area. Two weeks later, a second radiologist, Dr. B, biopsied the larger of the two areas and diagnosed a hyalinized fibroadenoma. He did not biopsy the smaller growth, but reported it as a benign nodule. He recommended more frequent screenings. The patient was referred to a surgeon, who determined that she should be seen in 6 months.
In June 2007, the patient underwent right-breast sonography that revealed cysts and three nodules. The surgeon recommended a biopsy, but the biopsy was performed on only two of three nodules. A third radiologist, Dr. C, determined that the nodules were all benign.
In November 2007, when the patient reported a painful lump in her right breast, her gynecologist ordered mammography, which revealed lesions. A biopsy revealed that one lesion was stage III invasive ductal carcinoma. The patient underwent extensive treatment, including a mastectomy, lymphadenectomy, chemotherapy, and radiation therapy, and prophylactic surgical reduction of the left breast.
PATIENT'S CLAIM The cancer should have been diagnosed in September 2006. Prompt treatment would have decreased the progression of the disease. The September 2006 biopsy should have included both lumps, as recommended by Dr. A.
DEFENDANTS’ DEFENSE There was no indication of cancer in September 2006. Reasonable follow-up care was given.
VERDICT A New York defense verdict was returned.
Tumor not found during surgery; BSO performed
A 41-year-old woman underwent surgery to remove a pelvic tumor in November 2004. The gynecologist was unable to locate the tumor during surgery. He performed bilateral salpingo-oophorectomy (BSO) because of a visual diagnosis of endometriosis. In August 2005, the patient underwent surgical removal of the tumor by another surgeon. She was hospitalized for several weeks and suffered a large scar that required additional surgery.
PATIENT'S CLAIM BSO was unnecessary, and caused early menopause, with vaginal atrophy and dryness, depression, fatigue, insomnia, loss of hair, and other symptoms.
The patient claimed lack of informed consent. From Ecuador, the patient’s command of English was not sufficient for her to completely understand the consent form; an interpreter should have been provided.
DEFENDANTS’ DEFENSE BSO did not cause a significant acceleration of the onset of menopause. It was necessary to treat the endometriosis.
The patient signed a consent form that included BSO. The patient did not indicate that she did not understand the language on the form; had she asked, an interpreter would have been provided.
VERDICT A $750,000 New York settlement was reached with the gynecologist and medical center.
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.
A 46-year-old woman underwent laparoscopic supracervical hysterectomy to remove her uterus but preserve her cervix. Postsurgically, she had difficulty breathing deeply and reported abdominal pain. The nurses and on-call physician reassured her that she was experiencing “gas pains” due to insufflation. After same-day discharge, she stayed in a motel room to avoid a second-floor bedroom at home.
She called the gynecologist’s office the following day to report continued pain and severe hot flashes and sweats. The gynecologist instructed his nurse to advise the patient to stop taking her birth control pill (ethinyl estradiol/norethindrone, Microgestin) and “to ride out” the hot flashes.
The woman was found dead in her motel room the next morning. An autopsy revealed a perforated small intestine with leakage into the abdominal cavity causing sepsis, multi-organ failure, and death.
ESTATE’S CLAIM The gynecologist reviewed the medical records and found an error in the operative report, but he made no addendum or late entry to correct the operative report. His defense counsel instructed him to draft a letter clarifying the surgery; this clarification was given to defense experts. The description of the procedure in the clarification was different from what was described in the medical records. For example, the clarification reported making 4 incisions for 4 trocars; the operative report indicated using 3 trocars. The pathologist and 2 nurses who treated the patient after surgery confirmed that there were 3 trocar incisions. The pathologist found no tissue necrosis at or around the perforation site, indicating that the perforation likely occurred during surgery.
PHYSICIAN’S DEFENSE Bowel perforation is a known complication of the procedure. The perforation was not present at the time of surgery because leakage of bowel content would have been obvious.
VERDICT A $1.5 million Virginia settlement was reached.
Retained products of conception after D&C
When sonography indicated that a 30-year-old woman was pregnant, she decided to abort the pregnancy and was given mifepristone.
Another sonogram 5 weeks later showed retained products of conception within the uterus. An ObGyn performed dilation and curettage (D&C) at an outpatient clinic. Because he believed the cannula did not remove everything, he used a curette to scrape the uterus. After the patient was dizzy, hypotensive, and in pain for 4 hours, an ambulance transported her to a hospital. Perforations of the uterus and sigmoid colon were discovered and repaired during emergency surgery. The patient has a large scar on her abdomen.
PATIENT'S CLAIM The ObGyn did not perform the D&C properly and perforated the uterus and colon. An earlier response to symptoms could have prevented repair surgery. Damage to the uterus may now preclude her from having a successful pregnancy.
DEFENDANTS’ DEFENSE The ObGyn argued that the aborted pregnancy was ectopic; spontaneous rupture caused the perforations.
VERDICT A $340,000 New York settlement was reached with the ObGyn. By the time of trial, the clinic had closed.
Wrong-site biopsy; records altered
A 40-year-old woman underwent excisional breast biopsy. The wrong lump was removed and the woman had to have another procedure.
PATIENT'S CLAIM The hospital’s nursing staff failed to properly mark the operative site. The breast surgeon did not confirm that the markings were correct. The surgeon altered the written operative report after the surgery to conceal negligence.
DEFENDANTS’ DEFENSE The nurses properly marked the biopsy site, but the surgeon chose another route. The surgeon edited the original report to reflect events that occurred during surgery that had not been included in the original dictation. The added material gave justification for performing the procedure at a different site than originally intended.
VERDICT A $15,500 Connecticut verdict was returned.
Second twin has CP and brain damage: $10M settlement
A woman gave birth to twins at an Army hospital. The first twin was delivered without complications. The second twin developed a prolapsed cord during delivery of the first twin. A resident and the attending physician allowed the mother to continue with vaginal delivery. The heart-rate monitor showed fetal distress, but the medical staff did not respond. After an hour, another physician was consulted, and he ordered immediate delivery. The attending physician decided to continue with vaginal delivery using forceps, but it took 15 minutes to locate forceps in the hospital. The infant suffered severe brain damage and cerebral palsy. She will require 24-hour nursing care for life, including treatment of a tracheostomy.
PARENTS' CLAIM The physicians were negligent for not reacting to non-reassuring monitor strips and for allowing the vaginal delivery to continue. An emergency cesarean delivery should have been performed.
DEFENDANTS’ DEFENSE The case was settled before trial.
VERDICT A $10 million North Carolina settlement was reached for past medical bills and future care.
Faulty biopsies: breast cancer diagnosis missed
In September 2006, a 40-year-old woman underwent breast sonography. A radiologist, Dr. A, reported finding a mass and a smaller nodule in the right breast, and recommended a biopsy of each area. Two weeks later, a second radiologist, Dr. B, biopsied the larger of the two areas and diagnosed a hyalinized fibroadenoma. He did not biopsy the smaller growth, but reported it as a benign nodule. He recommended more frequent screenings. The patient was referred to a surgeon, who determined that she should be seen in 6 months.
In June 2007, the patient underwent right-breast sonography that revealed cysts and three nodules. The surgeon recommended a biopsy, but the biopsy was performed on only two of three nodules. A third radiologist, Dr. C, determined that the nodules were all benign.
In November 2007, when the patient reported a painful lump in her right breast, her gynecologist ordered mammography, which revealed lesions. A biopsy revealed that one lesion was stage III invasive ductal carcinoma. The patient underwent extensive treatment, including a mastectomy, lymphadenectomy, chemotherapy, and radiation therapy, and prophylactic surgical reduction of the left breast.
PATIENT'S CLAIM The cancer should have been diagnosed in September 2006. Prompt treatment would have decreased the progression of the disease. The September 2006 biopsy should have included both lumps, as recommended by Dr. A.
DEFENDANTS’ DEFENSE There was no indication of cancer in September 2006. Reasonable follow-up care was given.
VERDICT A New York defense verdict was returned.
Tumor not found during surgery; BSO performed
A 41-year-old woman underwent surgery to remove a pelvic tumor in November 2004. The gynecologist was unable to locate the tumor during surgery. He performed bilateral salpingo-oophorectomy (BSO) because of a visual diagnosis of endometriosis. In August 2005, the patient underwent surgical removal of the tumor by another surgeon. She was hospitalized for several weeks and suffered a large scar that required additional surgery.
PATIENT'S CLAIM BSO was unnecessary, and caused early menopause, with vaginal atrophy and dryness, depression, fatigue, insomnia, loss of hair, and other symptoms.
The patient claimed lack of informed consent. From Ecuador, the patient’s command of English was not sufficient for her to completely understand the consent form; an interpreter should have been provided.
DEFENDANTS’ DEFENSE BSO did not cause a significant acceleration of the onset of menopause. It was necessary to treat the endometriosis.
The patient signed a consent form that included BSO. The patient did not indicate that she did not understand the language on the form; had she asked, an interpreter would have been provided.
VERDICT A $750,000 New York settlement was reached with the gynecologist and medical center.
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.
Premature baby is severely handicapped: $21M verdict
AT 31 2/7 WEEKS' GESTATION, a woman was admitted to the hospital for hypertension. A maternal-fetal medicine specialist determined that a vaginal delivery was reasonable as long as the mother and fetus remained clinically stable; a cesarean delivery would be required if the status changed. An ObGyn and nurse midwife took over the mother’s care. Before dinoprostone and oxytocin were administered the next morning, a second ObGyn conducted a vaginal exam and found the mother’s cervix to be 4-cm dilated. After noon, the fetal heart rate became nonreassuring, with late and prolonged variable decelerations. The baby was born shortly after 5:00 pm with the umbilical cord wrapped around his neck. He was pale, lifeless, and had Apgar scores of 4 and 7 at 1 and 5 minutes, respectively. He required initial positive pressure ventilation due to bradycardia and poor respiratory effort.
The boy has cerebral palsy; although not cognitively impaired, he is severely physically handicapped. He has had several operations because one leg is shorter than the other. He has 65% function of his arms, making it impossible for him to complete normal, daily tasks by himself.
PARENTS' CLAIM A cesarean delivery should have been performed 3 hours earlier.
DEFENDANT' DEFENSE Fetal heart-rate monitoring was reassuring during the last 40 minutes of labor. An Apgar score of 7 at 5 minutes is normal. Blood gases taken at birth were normal (7.3 pH). Ultrasonography of the baby’s head at age 3 days showed normal findings. Problems were not evident on the head ultrasound until the child was 2 weeks of age, showing that the injury occurred after birth and was due to prematurity. Defendants included both ObGyns, the midwife, and the hospital.
VERDICT A $21 million Maryland verdict was returned, including $1 million in noneconomic damages that was reduced to $650,000 under the state cap.
PHYSICIAN APOLOGIZED: DIDN'T READ BIOPSY REPORT BEFORE SURGERY
A 34-YEAR-OLD WOMAN with a family history of breast cancer found a lump in her left breast. After fine-needle aspiration, a general surgeon diagnosed cancer and performed a double mastectomy.
At the first postoperative visit, the surgeon told the patient that she did not have breast cancer, and that the fine-needle aspiration results were negative. The surgeon apologized for never looking at the biopsy report prior to surgery, and admitted that is she had seen the report, she would have cancelled surgery.
PATIENT'S CLAIM The surgeon was negligent in performing bilateral mastectomies without first reading biopsy results.
PHYSICIAN'S DEFENSE The case was settled before trial.
VERDICT Michigan case evaluation delivered an award of $542,000, which both parties accepted.
CYSTOSCOPY BLAMED FOR URETERAL OBSTRUCTION, POOR KIDNEY FUNCTION
WHEN A 59-YEAR-OLD WOMAN underwent gynecologic surgery that included a cystoscopy, her uterers were functioning normally. During the following month, the ObGyn performed several follow-up examinations. A year later, the patient's right ureter was completely obstructed. The obstruction was repaired, but the patient lost function in her right kidney. She must take a drug to improve kidney function for the rest of her life.
PATIENT'S CLAIM The obstruction was caused by ligation that occurred during cystoscopy. The ObGyn should have diagnosed the obstruction during the weeks following surgery.
PHYSICIAN'S DEFENSE The cystoscopy was properly performed. The patient had not reported any symptoms after the procedure that suggested the presence of an obstruction. The obstruction gradually developed and could not have been diagnosed earlier.
VERDICT A New York defense verdict was returned.
INFERIOR VENA CAVA DAMAGED DURING ROBOTIC HYSTERECTOMY
A HYSTERECTOMY AND SALPINGO-OOPHORECTOMY were performed on a 64-year-old woman using the da Vinci Surgical System. The gynecologist also removed a cancerous endometrial mass and dissected the periaortic lymph nodes. When the gynecologist used the robot to lift a lymph fat pad, the inferior vena cava was injured and the patient lost 3 L of blood. After converting the laparotomy, a vascular surgeon implanted an artificial graft to repair the inferior vena cava. The patient fully recovered.
PATIENT'S CLAIM The gynecologist did not perform robotic surgery properly, and the patient was not told of all of the risks associated with robotic surgery. Due to the uncertainty regarding the graft's effectiveness, the patient developed posttraumatic stress disorder.
PHYSICIAN'S DEFENSE The vascular injury was a known risk associated with the procedure. The vena cava was not lacerated or transected: perforator veins that joined the lymph fat pad were unintentionally pulled out. The injury was most likely due to the application of pressure, not laceration by the surgical instrument.
VERDICT A $300,000 New York settlement was reached.
READ: The robot is gaining ground in gynecologic surgery. Should you be using it? A roundtable discussion with Arnold P. Advincula, MD; Cheryl B. Iglesia, MD; Rosanne M. Kho, MD; Jamal Mourad, DO; Marie Fidela R. Paraiso, MD; and Jason D. Wright, MD (April 2013)
FETAL DISTRESS CAUSED BRAIN INJURY: $13.9M
DURING THE LAST 2 HOURS OF LABOR, the mother was febrile, the baby's heart rate rose to over 160 bpm, and fetal monitoring indicated fetal distress. Oxytocin was administered to hasten delivery, but the mother's uterus became hyperstimulated. After nearly 17 hours of labor, the child was born without respirations. A video of the vaginal birth shows that the child was blue and unresponsive. The baby was resuscitated, and was subsequently found to have cerebral palsy, epilepsy, and mental retardation. At the time of trial, the 10-year-old had the mental capacity of a 3-year-old.
PARENTS' CLAIM The child suffered brain injury due to hypoxic ischemic encephalopathy. A cesarean delivery should have been performed as soon as fetal distress was evident. The doctors and nurses misread the baseline heart rate, and did not react when the baby did not recover well from the mother's contractions. Brain imaging did not show damage caused by infection or meningitis.
PHYSICIAN'S DEFENSE The girl's condition was caused by an infection or meningitis.
VERDICT A confidential settlement was reached with the midwife before the trial. The ObGyn was dismissed because he was never alerted to any problem by the labor and delivery team. A $13.9 million Georgia verdict was returned against the hospital system.
UTERINE ARTERY INJURED DURING CESAREAN DELIVERY
AFTER A SCHEDULED CESAREAN delivery, the 29-year-old mother had low blood pressure and an altered state of consciousness When she returned to the OR several hours later, her ObGyn found a uterine artery hematoma and laceration. After the laceration was clamped and sutured, uterine atony was noted and an emergency hysterectomy was performed
PATIENT'S CLAIM The mother was no longer able to bear children. The ObGyn was negligent in lacerating the uterine artery, failing to recognize the laceration during cesarean surgery, failing to properly monitor the patient after surgery, and failing to repair the artery in a timely manner. The patient's low blood pressure and altered state of consciousness should have been an indication that she had severe blood loss. The hospital's nursing staff failed to properly check her vital signs after surgery, and failed to report the abnormalities in blood pressure and consciousness to the ObGyn.
DEFENDANTS' DEFENSE The ObGyn claimed that a uterine laceration is a known risk of cesarean delivery; it can occur in the absence of negligence. The hospital also denied negligence.
VERDICT A Texas 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.versictslaska.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.
AT 31 2/7 WEEKS' GESTATION, a woman was admitted to the hospital for hypertension. A maternal-fetal medicine specialist determined that a vaginal delivery was reasonable as long as the mother and fetus remained clinically stable; a cesarean delivery would be required if the status changed. An ObGyn and nurse midwife took over the mother’s care. Before dinoprostone and oxytocin were administered the next morning, a second ObGyn conducted a vaginal exam and found the mother’s cervix to be 4-cm dilated. After noon, the fetal heart rate became nonreassuring, with late and prolonged variable decelerations. The baby was born shortly after 5:00 pm with the umbilical cord wrapped around his neck. He was pale, lifeless, and had Apgar scores of 4 and 7 at 1 and 5 minutes, respectively. He required initial positive pressure ventilation due to bradycardia and poor respiratory effort.
The boy has cerebral palsy; although not cognitively impaired, he is severely physically handicapped. He has had several operations because one leg is shorter than the other. He has 65% function of his arms, making it impossible for him to complete normal, daily tasks by himself.
PARENTS' CLAIM A cesarean delivery should have been performed 3 hours earlier.
DEFENDANT' DEFENSE Fetal heart-rate monitoring was reassuring during the last 40 minutes of labor. An Apgar score of 7 at 5 minutes is normal. Blood gases taken at birth were normal (7.3 pH). Ultrasonography of the baby’s head at age 3 days showed normal findings. Problems were not evident on the head ultrasound until the child was 2 weeks of age, showing that the injury occurred after birth and was due to prematurity. Defendants included both ObGyns, the midwife, and the hospital.
VERDICT A $21 million Maryland verdict was returned, including $1 million in noneconomic damages that was reduced to $650,000 under the state cap.
PHYSICIAN APOLOGIZED: DIDN'T READ BIOPSY REPORT BEFORE SURGERY
A 34-YEAR-OLD WOMAN with a family history of breast cancer found a lump in her left breast. After fine-needle aspiration, a general surgeon diagnosed cancer and performed a double mastectomy.
At the first postoperative visit, the surgeon told the patient that she did not have breast cancer, and that the fine-needle aspiration results were negative. The surgeon apologized for never looking at the biopsy report prior to surgery, and admitted that is she had seen the report, she would have cancelled surgery.
PATIENT'S CLAIM The surgeon was negligent in performing bilateral mastectomies without first reading biopsy results.
PHYSICIAN'S DEFENSE The case was settled before trial.
VERDICT Michigan case evaluation delivered an award of $542,000, which both parties accepted.
CYSTOSCOPY BLAMED FOR URETERAL OBSTRUCTION, POOR KIDNEY FUNCTION
WHEN A 59-YEAR-OLD WOMAN underwent gynecologic surgery that included a cystoscopy, her uterers were functioning normally. During the following month, the ObGyn performed several follow-up examinations. A year later, the patient's right ureter was completely obstructed. The obstruction was repaired, but the patient lost function in her right kidney. She must take a drug to improve kidney function for the rest of her life.
PATIENT'S CLAIM The obstruction was caused by ligation that occurred during cystoscopy. The ObGyn should have diagnosed the obstruction during the weeks following surgery.
PHYSICIAN'S DEFENSE The cystoscopy was properly performed. The patient had not reported any symptoms after the procedure that suggested the presence of an obstruction. The obstruction gradually developed and could not have been diagnosed earlier.
VERDICT A New York defense verdict was returned.
INFERIOR VENA CAVA DAMAGED DURING ROBOTIC HYSTERECTOMY
A HYSTERECTOMY AND SALPINGO-OOPHORECTOMY were performed on a 64-year-old woman using the da Vinci Surgical System. The gynecologist also removed a cancerous endometrial mass and dissected the periaortic lymph nodes. When the gynecologist used the robot to lift a lymph fat pad, the inferior vena cava was injured and the patient lost 3 L of blood. After converting the laparotomy, a vascular surgeon implanted an artificial graft to repair the inferior vena cava. The patient fully recovered.
PATIENT'S CLAIM The gynecologist did not perform robotic surgery properly, and the patient was not told of all of the risks associated with robotic surgery. Due to the uncertainty regarding the graft's effectiveness, the patient developed posttraumatic stress disorder.
PHYSICIAN'S DEFENSE The vascular injury was a known risk associated with the procedure. The vena cava was not lacerated or transected: perforator veins that joined the lymph fat pad were unintentionally pulled out. The injury was most likely due to the application of pressure, not laceration by the surgical instrument.
VERDICT A $300,000 New York settlement was reached.
READ: The robot is gaining ground in gynecologic surgery. Should you be using it? A roundtable discussion with Arnold P. Advincula, MD; Cheryl B. Iglesia, MD; Rosanne M. Kho, MD; Jamal Mourad, DO; Marie Fidela R. Paraiso, MD; and Jason D. Wright, MD (April 2013)
FETAL DISTRESS CAUSED BRAIN INJURY: $13.9M
DURING THE LAST 2 HOURS OF LABOR, the mother was febrile, the baby's heart rate rose to over 160 bpm, and fetal monitoring indicated fetal distress. Oxytocin was administered to hasten delivery, but the mother's uterus became hyperstimulated. After nearly 17 hours of labor, the child was born without respirations. A video of the vaginal birth shows that the child was blue and unresponsive. The baby was resuscitated, and was subsequently found to have cerebral palsy, epilepsy, and mental retardation. At the time of trial, the 10-year-old had the mental capacity of a 3-year-old.
PARENTS' CLAIM The child suffered brain injury due to hypoxic ischemic encephalopathy. A cesarean delivery should have been performed as soon as fetal distress was evident. The doctors and nurses misread the baseline heart rate, and did not react when the baby did not recover well from the mother's contractions. Brain imaging did not show damage caused by infection or meningitis.
PHYSICIAN'S DEFENSE The girl's condition was caused by an infection or meningitis.
VERDICT A confidential settlement was reached with the midwife before the trial. The ObGyn was dismissed because he was never alerted to any problem by the labor and delivery team. A $13.9 million Georgia verdict was returned against the hospital system.
UTERINE ARTERY INJURED DURING CESAREAN DELIVERY
AFTER A SCHEDULED CESAREAN delivery, the 29-year-old mother had low blood pressure and an altered state of consciousness When she returned to the OR several hours later, her ObGyn found a uterine artery hematoma and laceration. After the laceration was clamped and sutured, uterine atony was noted and an emergency hysterectomy was performed
PATIENT'S CLAIM The mother was no longer able to bear children. The ObGyn was negligent in lacerating the uterine artery, failing to recognize the laceration during cesarean surgery, failing to properly monitor the patient after surgery, and failing to repair the artery in a timely manner. The patient's low blood pressure and altered state of consciousness should have been an indication that she had severe blood loss. The hospital's nursing staff failed to properly check her vital signs after surgery, and failed to report the abnormalities in blood pressure and consciousness to the ObGyn.
DEFENDANTS' DEFENSE The ObGyn claimed that a uterine laceration is a known risk of cesarean delivery; it can occur in the absence of negligence. The hospital also denied negligence.
VERDICT A Texas 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.versictslaska.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.
AT 31 2/7 WEEKS' GESTATION, a woman was admitted to the hospital for hypertension. A maternal-fetal medicine specialist determined that a vaginal delivery was reasonable as long as the mother and fetus remained clinically stable; a cesarean delivery would be required if the status changed. An ObGyn and nurse midwife took over the mother’s care. Before dinoprostone and oxytocin were administered the next morning, a second ObGyn conducted a vaginal exam and found the mother’s cervix to be 4-cm dilated. After noon, the fetal heart rate became nonreassuring, with late and prolonged variable decelerations. The baby was born shortly after 5:00 pm with the umbilical cord wrapped around his neck. He was pale, lifeless, and had Apgar scores of 4 and 7 at 1 and 5 minutes, respectively. He required initial positive pressure ventilation due to bradycardia and poor respiratory effort.
The boy has cerebral palsy; although not cognitively impaired, he is severely physically handicapped. He has had several operations because one leg is shorter than the other. He has 65% function of his arms, making it impossible for him to complete normal, daily tasks by himself.
PARENTS' CLAIM A cesarean delivery should have been performed 3 hours earlier.
DEFENDANT' DEFENSE Fetal heart-rate monitoring was reassuring during the last 40 minutes of labor. An Apgar score of 7 at 5 minutes is normal. Blood gases taken at birth were normal (7.3 pH). Ultrasonography of the baby’s head at age 3 days showed normal findings. Problems were not evident on the head ultrasound until the child was 2 weeks of age, showing that the injury occurred after birth and was due to prematurity. Defendants included both ObGyns, the midwife, and the hospital.
VERDICT A $21 million Maryland verdict was returned, including $1 million in noneconomic damages that was reduced to $650,000 under the state cap.
PHYSICIAN APOLOGIZED: DIDN'T READ BIOPSY REPORT BEFORE SURGERY
A 34-YEAR-OLD WOMAN with a family history of breast cancer found a lump in her left breast. After fine-needle aspiration, a general surgeon diagnosed cancer and performed a double mastectomy.
At the first postoperative visit, the surgeon told the patient that she did not have breast cancer, and that the fine-needle aspiration results were negative. The surgeon apologized for never looking at the biopsy report prior to surgery, and admitted that is she had seen the report, she would have cancelled surgery.
PATIENT'S CLAIM The surgeon was negligent in performing bilateral mastectomies without first reading biopsy results.
PHYSICIAN'S DEFENSE The case was settled before trial.
VERDICT Michigan case evaluation delivered an award of $542,000, which both parties accepted.
CYSTOSCOPY BLAMED FOR URETERAL OBSTRUCTION, POOR KIDNEY FUNCTION
WHEN A 59-YEAR-OLD WOMAN underwent gynecologic surgery that included a cystoscopy, her uterers were functioning normally. During the following month, the ObGyn performed several follow-up examinations. A year later, the patient's right ureter was completely obstructed. The obstruction was repaired, but the patient lost function in her right kidney. She must take a drug to improve kidney function for the rest of her life.
PATIENT'S CLAIM The obstruction was caused by ligation that occurred during cystoscopy. The ObGyn should have diagnosed the obstruction during the weeks following surgery.
PHYSICIAN'S DEFENSE The cystoscopy was properly performed. The patient had not reported any symptoms after the procedure that suggested the presence of an obstruction. The obstruction gradually developed and could not have been diagnosed earlier.
VERDICT A New York defense verdict was returned.
INFERIOR VENA CAVA DAMAGED DURING ROBOTIC HYSTERECTOMY
A HYSTERECTOMY AND SALPINGO-OOPHORECTOMY were performed on a 64-year-old woman using the da Vinci Surgical System. The gynecologist also removed a cancerous endometrial mass and dissected the periaortic lymph nodes. When the gynecologist used the robot to lift a lymph fat pad, the inferior vena cava was injured and the patient lost 3 L of blood. After converting the laparotomy, a vascular surgeon implanted an artificial graft to repair the inferior vena cava. The patient fully recovered.
PATIENT'S CLAIM The gynecologist did not perform robotic surgery properly, and the patient was not told of all of the risks associated with robotic surgery. Due to the uncertainty regarding the graft's effectiveness, the patient developed posttraumatic stress disorder.
PHYSICIAN'S DEFENSE The vascular injury was a known risk associated with the procedure. The vena cava was not lacerated or transected: perforator veins that joined the lymph fat pad were unintentionally pulled out. The injury was most likely due to the application of pressure, not laceration by the surgical instrument.
VERDICT A $300,000 New York settlement was reached.
READ: The robot is gaining ground in gynecologic surgery. Should you be using it? A roundtable discussion with Arnold P. Advincula, MD; Cheryl B. Iglesia, MD; Rosanne M. Kho, MD; Jamal Mourad, DO; Marie Fidela R. Paraiso, MD; and Jason D. Wright, MD (April 2013)
FETAL DISTRESS CAUSED BRAIN INJURY: $13.9M
DURING THE LAST 2 HOURS OF LABOR, the mother was febrile, the baby's heart rate rose to over 160 bpm, and fetal monitoring indicated fetal distress. Oxytocin was administered to hasten delivery, but the mother's uterus became hyperstimulated. After nearly 17 hours of labor, the child was born without respirations. A video of the vaginal birth shows that the child was blue and unresponsive. The baby was resuscitated, and was subsequently found to have cerebral palsy, epilepsy, and mental retardation. At the time of trial, the 10-year-old had the mental capacity of a 3-year-old.
PARENTS' CLAIM The child suffered brain injury due to hypoxic ischemic encephalopathy. A cesarean delivery should have been performed as soon as fetal distress was evident. The doctors and nurses misread the baseline heart rate, and did not react when the baby did not recover well from the mother's contractions. Brain imaging did not show damage caused by infection or meningitis.
PHYSICIAN'S DEFENSE The girl's condition was caused by an infection or meningitis.
VERDICT A confidential settlement was reached with the midwife before the trial. The ObGyn was dismissed because he was never alerted to any problem by the labor and delivery team. A $13.9 million Georgia verdict was returned against the hospital system.
UTERINE ARTERY INJURED DURING CESAREAN DELIVERY
AFTER A SCHEDULED CESAREAN delivery, the 29-year-old mother had low blood pressure and an altered state of consciousness When she returned to the OR several hours later, her ObGyn found a uterine artery hematoma and laceration. After the laceration was clamped and sutured, uterine atony was noted and an emergency hysterectomy was performed
PATIENT'S CLAIM The mother was no longer able to bear children. The ObGyn was negligent in lacerating the uterine artery, failing to recognize the laceration during cesarean surgery, failing to properly monitor the patient after surgery, and failing to repair the artery in a timely manner. The patient's low blood pressure and altered state of consciousness should have been an indication that she had severe blood loss. The hospital's nursing staff failed to properly check her vital signs after surgery, and failed to report the abnormalities in blood pressure and consciousness to the ObGyn.
DEFENDANTS' DEFENSE The ObGyn claimed that a uterine laceration is a known risk of cesarean delivery; it can occur in the absence of negligence. The hospital also denied negligence.
VERDICT A Texas 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.versictslaska.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.
Should have used other dystocia maneuvers first
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AN OBGYN ENCOUNTERED SHOULDER DYSTOCIA. He used fundal pressure and downward lateral traction to free the baby’s shoulder. The child has a brachial plexus injury of the right shoulder, including nerve avulsion, a fractured clavicle, and permanent disfigurement. She underwent surgery; physical and occupational therapy will continue.
PARENTS' CLAIM The standard sequence of maneuvers should have been attempted before fundal pressure and lateral traction were used—the baby was sufficiently oxygenated to allow time for these maneuvers. Excessive lateral traction caused the injury.
DEFENDANTS' DEFENSE The injuries occurred in utero before or while the fetus progressed down the birth canal, and were due to the maternal forces of labor.
VERDICT A $3,070,000 Michigan verdict was returned against the hospital, ObGyn, and ObGyn group.
WHAT IS THE STANDARD SEQUENCE OF MANEUVERS FOR SHOULDER DYSTOCIA?
Read Dr. Robert L. Barbieri’s May Editorial, You are the second responder to a shoulder dystocia emergency. What do you do first? and Dr. Ronald T. Burkman’s March Stop/Start article, Stop all activities that may lead to further shoulder impaction when you suspect possible shoulder dystocia Meconium aspiration leads to brain injury
LATE IN HER PREGNANCY, a woman went to the emergency department (ED) with hypertension; she was discharged the same day. She saw her ObGyns, Dr. A and Dr. B, three times in the next 2 weeks. A day after her last visit, she returned to the ED in active labor. Dr. B assumed her care. Fetal monitoring indicated a nonreassuring heart rate with decelerations. Dr. B administered oxytocin and labor continued.
The baby was born by cesarean delivery after 25 minutes of fetal bradycardia. She was covered in meconium, with a low heart rate and irregular, labored respirations. The baby was transferred to another hospital, where she was treated for pulmonary hypertension, meconium aspiration, and seizures. The child is totally disabled, and will require constant care for life.
PARENTS' CLAIM The mother’s hypertension was not properly treated. Dr. B and the nurse waited too long to perform a cesarean delivery.
DEFENDANTS' DEFENSE Proper prenatal care was provided. There was no reason for additional testing; fetal heart tones at the mother’s last office visit were reactive. There were no clinical signs of a hematoma or cord varix during office visits. An unpredictable, unpreventable umbilical cord hematoma caused ischemia and hypoxia, and the subsequent brain injury. Meconium had been in the amniotic fluid for at least 10 hours due to the ischemic/hypoxic episode. The hematoma formed between her last office visit and when the mother came to the hospital the next day.
VERDICT Settlements were reached with Dr. A and the hospital. An Arkansas defense verdict was returned for Dr. B and the nurse.
14 months' recovery after mass removed
A GYNECOLOGIC ONCOLOGIST operated on a woman in her 50s to remove a large, noncancerous pelvic mass. The patient, discharged on postoperative day 2, was readmitted the next day with a fever (temperature, 103ºF), nausea, vomiting, and abdominal pain. Four days later, the oncologist repaired a perforated bowel and created an ileostomy. Other procedures were needed to drain abscesses and repair fistulas, and resect a large portion of colon due to continuing infection. Treatment lasted 14 months.
PATIENT'S CLAIM The gynecologic oncologist was negligent in failing to timely diagnose and treat the bowel perforation. Earlier repair would have curtailed development of the abscesses and fistulae.
PHYSICIAN'S DEFENSE Any complications the patient experienced were unrelated to any delay in treatment.
VERDICT A $612,237 Michigan verdict was returned.
Colon perforated during abdominal access
WHEN A MORBIDLY OBESE 37-YEAR-OLD WOMAN reported chronic pelvic pain, her gynecologist suspected endometriosis. Conservative treatment failed and the gynecologist offered laparoscopic hysterectomy.
After abdominal insufflation was unsuccessfully attempted twice using a Veress needle, the gynecologist entered the abdomen with a Visiport optical trocar, and continued the procedure. The gynecologist inspected the abdomen before closing but found no injuries.
The patient did not do well after surgery. CT scan detected a bowel perforation on postoperative day 6. During exploratory laparotomy, a through-and-through “bayonet” colon perforation was repaired. Because of the extensive infection, the patient’s surgical wound was left open and several “washouts” were performed; the wound was closed several weeks later. The patient also underwent two adhesiolysis procedures.
PATIENT'S CLAIM Access to the abdomen was not properly performed and caused colon perforation. The injury should have been found and treated earlier.
PHYSICIAN'S DEFENSE The case was settled before trial.
VERDICT A $750,000 Virginia settlement was reached.
READ How to avoid intestinal and urinary tract injuries during gynecologic laparoscopy, by Michael Baggish, MD (Surgical Techniques, October 2012) What caused this C. diff infection after hysterectomy?
AFTER A HYSTERECTOMY, a 42-year-old woman developed a persistent fever and increased white blood cell count. The gynecologist prescribed ciprofloxacin for a urinary tract infection, and discharged the patient from the hospital on postoperative day 4. She returned to the gynecologist’s office with severe abdominal pain and vomiting 4 days after discharge. The gynecologist prescribed an antacid and told her to continue taking ciprofloxacin.
The patient was taken to the ED by ambulance 3 days later. Testing revealed a Clostridium dificule (C. diff) infection. During emergency surgery, a large portion of her colon was resected, and a colostomy was performed. The colostomy was reversed 6 months later. The patient developed an incisional hernia and has abdominal scarring.
PATIENT'S CLAIM Prophylactic antibiotics should have been prescribed before surgery.
Two possible scenarios were presented: 1) A bowel injury occurred during surgery, and ciprofloxacin likely worsened the infection caused by the bowel injury; or 2) ciprofloxacin triggered the C. diff infection that caused leaking colon perforations and subsequent peritonitis.
The colon perforations could have been avoided if the gynecologist had diagnosed and treated the C. diff infection in a timely manner.
PHYSICIAN'S DEFENSE The patient’s symptoms did not suggest a C. diff infection; testing was not necessary. Ciprofloxacin might have allowed the proliferation of the C. diff infection, but the use of the drug was not negligent. The infection was not preventable and could not have been diagnosed earlier.
VERDICT A $776,000 New York verdict was returned.
Brain injury and cerebral palsy: When did this occur?
DURING LABOR AND DELIVERY, there were periods when the fetal heart-rate tracings were nonreassuring with variable decelerations and fetal tachycardia; some variables were severe. The child suffered anoxic encephalopathy that caused neurologic injury and cerebral palsy.
PARENTS' CLAIM The infant suffered numerous hypoxic incidents before cesarean delivery was performed. An earlier cesarean delivery could have prevented the injury.
PHYSICIAN'S DEFENSE The newborn had a normal blood cord gas level of 7.2 pH and Apgar scores of 9 and 10, at 1 and 5 minutes, respectively. Fetal heart-rate tracings did not show evidence of fetal hypoxia. The brain injury likely occurred prior to the onset of labor and was possibly related to a viral encephalopathy.
VERDICT A Virginia 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.
gb
AN OBGYN ENCOUNTERED SHOULDER DYSTOCIA. He used fundal pressure and downward lateral traction to free the baby’s shoulder. The child has a brachial plexus injury of the right shoulder, including nerve avulsion, a fractured clavicle, and permanent disfigurement. She underwent surgery; physical and occupational therapy will continue.
PARENTS' CLAIM The standard sequence of maneuvers should have been attempted before fundal pressure and lateral traction were used—the baby was sufficiently oxygenated to allow time for these maneuvers. Excessive lateral traction caused the injury.
DEFENDANTS' DEFENSE The injuries occurred in utero before or while the fetus progressed down the birth canal, and were due to the maternal forces of labor.
VERDICT A $3,070,000 Michigan verdict was returned against the hospital, ObGyn, and ObGyn group.
WHAT IS THE STANDARD SEQUENCE OF MANEUVERS FOR SHOULDER DYSTOCIA?
Read Dr. Robert L. Barbieri’s May Editorial, You are the second responder to a shoulder dystocia emergency. What do you do first? and Dr. Ronald T. Burkman’s March Stop/Start article, Stop all activities that may lead to further shoulder impaction when you suspect possible shoulder dystocia Meconium aspiration leads to brain injury
LATE IN HER PREGNANCY, a woman went to the emergency department (ED) with hypertension; she was discharged the same day. She saw her ObGyns, Dr. A and Dr. B, three times in the next 2 weeks. A day after her last visit, she returned to the ED in active labor. Dr. B assumed her care. Fetal monitoring indicated a nonreassuring heart rate with decelerations. Dr. B administered oxytocin and labor continued.
The baby was born by cesarean delivery after 25 minutes of fetal bradycardia. She was covered in meconium, with a low heart rate and irregular, labored respirations. The baby was transferred to another hospital, where she was treated for pulmonary hypertension, meconium aspiration, and seizures. The child is totally disabled, and will require constant care for life.
PARENTS' CLAIM The mother’s hypertension was not properly treated. Dr. B and the nurse waited too long to perform a cesarean delivery.
DEFENDANTS' DEFENSE Proper prenatal care was provided. There was no reason for additional testing; fetal heart tones at the mother’s last office visit were reactive. There were no clinical signs of a hematoma or cord varix during office visits. An unpredictable, unpreventable umbilical cord hematoma caused ischemia and hypoxia, and the subsequent brain injury. Meconium had been in the amniotic fluid for at least 10 hours due to the ischemic/hypoxic episode. The hematoma formed between her last office visit and when the mother came to the hospital the next day.
VERDICT Settlements were reached with Dr. A and the hospital. An Arkansas defense verdict was returned for Dr. B and the nurse.
14 months' recovery after mass removed
A GYNECOLOGIC ONCOLOGIST operated on a woman in her 50s to remove a large, noncancerous pelvic mass. The patient, discharged on postoperative day 2, was readmitted the next day with a fever (temperature, 103ºF), nausea, vomiting, and abdominal pain. Four days later, the oncologist repaired a perforated bowel and created an ileostomy. Other procedures were needed to drain abscesses and repair fistulas, and resect a large portion of colon due to continuing infection. Treatment lasted 14 months.
PATIENT'S CLAIM The gynecologic oncologist was negligent in failing to timely diagnose and treat the bowel perforation. Earlier repair would have curtailed development of the abscesses and fistulae.
PHYSICIAN'S DEFENSE Any complications the patient experienced were unrelated to any delay in treatment.
VERDICT A $612,237 Michigan verdict was returned.
Colon perforated during abdominal access
WHEN A MORBIDLY OBESE 37-YEAR-OLD WOMAN reported chronic pelvic pain, her gynecologist suspected endometriosis. Conservative treatment failed and the gynecologist offered laparoscopic hysterectomy.
After abdominal insufflation was unsuccessfully attempted twice using a Veress needle, the gynecologist entered the abdomen with a Visiport optical trocar, and continued the procedure. The gynecologist inspected the abdomen before closing but found no injuries.
The patient did not do well after surgery. CT scan detected a bowel perforation on postoperative day 6. During exploratory laparotomy, a through-and-through “bayonet” colon perforation was repaired. Because of the extensive infection, the patient’s surgical wound was left open and several “washouts” were performed; the wound was closed several weeks later. The patient also underwent two adhesiolysis procedures.
PATIENT'S CLAIM Access to the abdomen was not properly performed and caused colon perforation. The injury should have been found and treated earlier.
PHYSICIAN'S DEFENSE The case was settled before trial.
VERDICT A $750,000 Virginia settlement was reached.
READ How to avoid intestinal and urinary tract injuries during gynecologic laparoscopy, by Michael Baggish, MD (Surgical Techniques, October 2012) What caused this C. diff infection after hysterectomy?
AFTER A HYSTERECTOMY, a 42-year-old woman developed a persistent fever and increased white blood cell count. The gynecologist prescribed ciprofloxacin for a urinary tract infection, and discharged the patient from the hospital on postoperative day 4. She returned to the gynecologist’s office with severe abdominal pain and vomiting 4 days after discharge. The gynecologist prescribed an antacid and told her to continue taking ciprofloxacin.
The patient was taken to the ED by ambulance 3 days later. Testing revealed a Clostridium dificule (C. diff) infection. During emergency surgery, a large portion of her colon was resected, and a colostomy was performed. The colostomy was reversed 6 months later. The patient developed an incisional hernia and has abdominal scarring.
PATIENT'S CLAIM Prophylactic antibiotics should have been prescribed before surgery.
Two possible scenarios were presented: 1) A bowel injury occurred during surgery, and ciprofloxacin likely worsened the infection caused by the bowel injury; or 2) ciprofloxacin triggered the C. diff infection that caused leaking colon perforations and subsequent peritonitis.
The colon perforations could have been avoided if the gynecologist had diagnosed and treated the C. diff infection in a timely manner.
PHYSICIAN'S DEFENSE The patient’s symptoms did not suggest a C. diff infection; testing was not necessary. Ciprofloxacin might have allowed the proliferation of the C. diff infection, but the use of the drug was not negligent. The infection was not preventable and could not have been diagnosed earlier.
VERDICT A $776,000 New York verdict was returned.
Brain injury and cerebral palsy: When did this occur?
DURING LABOR AND DELIVERY, there were periods when the fetal heart-rate tracings were nonreassuring with variable decelerations and fetal tachycardia; some variables were severe. The child suffered anoxic encephalopathy that caused neurologic injury and cerebral palsy.
PARENTS' CLAIM The infant suffered numerous hypoxic incidents before cesarean delivery was performed. An earlier cesarean delivery could have prevented the injury.
PHYSICIAN'S DEFENSE The newborn had a normal blood cord gas level of 7.2 pH and Apgar scores of 9 and 10, at 1 and 5 minutes, respectively. Fetal heart-rate tracings did not show evidence of fetal hypoxia. The brain injury likely occurred prior to the onset of labor and was possibly related to a viral encephalopathy.
VERDICT A Virginia defense verdict was returned. These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.
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AN OBGYN ENCOUNTERED SHOULDER DYSTOCIA. He used fundal pressure and downward lateral traction to free the baby’s shoulder. The child has a brachial plexus injury of the right shoulder, including nerve avulsion, a fractured clavicle, and permanent disfigurement. She underwent surgery; physical and occupational therapy will continue.
PARENTS' CLAIM The standard sequence of maneuvers should have been attempted before fundal pressure and lateral traction were used—the baby was sufficiently oxygenated to allow time for these maneuvers. Excessive lateral traction caused the injury.
DEFENDANTS' DEFENSE The injuries occurred in utero before or while the fetus progressed down the birth canal, and were due to the maternal forces of labor.
VERDICT A $3,070,000 Michigan verdict was returned against the hospital, ObGyn, and ObGyn group.
WHAT IS THE STANDARD SEQUENCE OF MANEUVERS FOR SHOULDER DYSTOCIA?
Read Dr. Robert L. Barbieri’s May Editorial, You are the second responder to a shoulder dystocia emergency. What do you do first? and Dr. Ronald T. Burkman’s March Stop/Start article, Stop all activities that may lead to further shoulder impaction when you suspect possible shoulder dystocia Meconium aspiration leads to brain injury
LATE IN HER PREGNANCY, a woman went to the emergency department (ED) with hypertension; she was discharged the same day. She saw her ObGyns, Dr. A and Dr. B, three times in the next 2 weeks. A day after her last visit, she returned to the ED in active labor. Dr. B assumed her care. Fetal monitoring indicated a nonreassuring heart rate with decelerations. Dr. B administered oxytocin and labor continued.
The baby was born by cesarean delivery after 25 minutes of fetal bradycardia. She was covered in meconium, with a low heart rate and irregular, labored respirations. The baby was transferred to another hospital, where she was treated for pulmonary hypertension, meconium aspiration, and seizures. The child is totally disabled, and will require constant care for life.
PARENTS' CLAIM The mother’s hypertension was not properly treated. Dr. B and the nurse waited too long to perform a cesarean delivery.
DEFENDANTS' DEFENSE Proper prenatal care was provided. There was no reason for additional testing; fetal heart tones at the mother’s last office visit were reactive. There were no clinical signs of a hematoma or cord varix during office visits. An unpredictable, unpreventable umbilical cord hematoma caused ischemia and hypoxia, and the subsequent brain injury. Meconium had been in the amniotic fluid for at least 10 hours due to the ischemic/hypoxic episode. The hematoma formed between her last office visit and when the mother came to the hospital the next day.
VERDICT Settlements were reached with Dr. A and the hospital. An Arkansas defense verdict was returned for Dr. B and the nurse.
14 months' recovery after mass removed
A GYNECOLOGIC ONCOLOGIST operated on a woman in her 50s to remove a large, noncancerous pelvic mass. The patient, discharged on postoperative day 2, was readmitted the next day with a fever (temperature, 103ºF), nausea, vomiting, and abdominal pain. Four days later, the oncologist repaired a perforated bowel and created an ileostomy. Other procedures were needed to drain abscesses and repair fistulas, and resect a large portion of colon due to continuing infection. Treatment lasted 14 months.
PATIENT'S CLAIM The gynecologic oncologist was negligent in failing to timely diagnose and treat the bowel perforation. Earlier repair would have curtailed development of the abscesses and fistulae.
PHYSICIAN'S DEFENSE Any complications the patient experienced were unrelated to any delay in treatment.
VERDICT A $612,237 Michigan verdict was returned.
Colon perforated during abdominal access
WHEN A MORBIDLY OBESE 37-YEAR-OLD WOMAN reported chronic pelvic pain, her gynecologist suspected endometriosis. Conservative treatment failed and the gynecologist offered laparoscopic hysterectomy.
After abdominal insufflation was unsuccessfully attempted twice using a Veress needle, the gynecologist entered the abdomen with a Visiport optical trocar, and continued the procedure. The gynecologist inspected the abdomen before closing but found no injuries.
The patient did not do well after surgery. CT scan detected a bowel perforation on postoperative day 6. During exploratory laparotomy, a through-and-through “bayonet” colon perforation was repaired. Because of the extensive infection, the patient’s surgical wound was left open and several “washouts” were performed; the wound was closed several weeks later. The patient also underwent two adhesiolysis procedures.
PATIENT'S CLAIM Access to the abdomen was not properly performed and caused colon perforation. The injury should have been found and treated earlier.
PHYSICIAN'S DEFENSE The case was settled before trial.
VERDICT A $750,000 Virginia settlement was reached.
READ How to avoid intestinal and urinary tract injuries during gynecologic laparoscopy, by Michael Baggish, MD (Surgical Techniques, October 2012) What caused this C. diff infection after hysterectomy?
AFTER A HYSTERECTOMY, a 42-year-old woman developed a persistent fever and increased white blood cell count. The gynecologist prescribed ciprofloxacin for a urinary tract infection, and discharged the patient from the hospital on postoperative day 4. She returned to the gynecologist’s office with severe abdominal pain and vomiting 4 days after discharge. The gynecologist prescribed an antacid and told her to continue taking ciprofloxacin.
The patient was taken to the ED by ambulance 3 days later. Testing revealed a Clostridium dificule (C. diff) infection. During emergency surgery, a large portion of her colon was resected, and a colostomy was performed. The colostomy was reversed 6 months later. The patient developed an incisional hernia and has abdominal scarring.
PATIENT'S CLAIM Prophylactic antibiotics should have been prescribed before surgery.
Two possible scenarios were presented: 1) A bowel injury occurred during surgery, and ciprofloxacin likely worsened the infection caused by the bowel injury; or 2) ciprofloxacin triggered the C. diff infection that caused leaking colon perforations and subsequent peritonitis.
The colon perforations could have been avoided if the gynecologist had diagnosed and treated the C. diff infection in a timely manner.
PHYSICIAN'S DEFENSE The patient’s symptoms did not suggest a C. diff infection; testing was not necessary. Ciprofloxacin might have allowed the proliferation of the C. diff infection, but the use of the drug was not negligent. The infection was not preventable and could not have been diagnosed earlier.
VERDICT A $776,000 New York verdict was returned.
Brain injury and cerebral palsy: When did this occur?
DURING LABOR AND DELIVERY, there were periods when the fetal heart-rate tracings were nonreassuring with variable decelerations and fetal tachycardia; some variables were severe. The child suffered anoxic encephalopathy that caused neurologic injury and cerebral palsy.
PARENTS' CLAIM The infant suffered numerous hypoxic incidents before cesarean delivery was performed. An earlier cesarean delivery could have prevented the injury.
PHYSICIAN'S DEFENSE The newborn had a normal blood cord gas level of 7.2 pH and Apgar scores of 9 and 10, at 1 and 5 minutes, respectively. Fetal heart-rate tracings did not show evidence of fetal hypoxia. The brain injury likely occurred prior to the onset of labor and was possibly related to a viral encephalopathy.
VERDICT A Virginia 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.
Was Worker’s Reinjury Foreseeable?
Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.
The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.
The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.
Outcome
According to a published report, a $400,000 settlement was reached.
Comment
Treating patients in a workers’ compensation setting can present unique challenges.
We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?
For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.
In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.
If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.
Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.
For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.
Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while.
Third, when treating a patient in a WC setting who mentions a potentially dangerous activity in her day-to-day job description, it is helpful to ask—with a healthy amount of skepticism—“Well, how are you going to do that?” Even more important, “How are you going to safely do that?” If you and the patient cannot come up with a good answer in the exam room, chances are that none will be found at the workplace, either; the activity in question should be curtailed. Throughout your rigorous examination of the patient’s work duties, use your skeptical voice to probe for unsafe situations and challenge potential workarounds.
Maintain genuine concern for the employee. If you are being pressured to return that employee to unsafe conditions, it is generally helpful to remind the party in question that a prematurely returned patient who deteriorates will become an employee who is out longer and drawing benefits longer. Further, any catastrophic loss related to an on-the-job injury will be borne by the carrier. So, if our stagehand sustains a serious injury after falling from 50 feet up (because she was distracted by the pain from the burn on her thigh), the employer/carrier will be liable for her lifelong treatment. Clearly voice your concern about the potential for the patient’s injury or reinjury and the substantial losses that could result.
Fourth, don’t let anyone influence your judgment inappropriately. This could be the carrier (who wishes to avoid financial liability), the employer (who wishes the employee to return to unrestricted work), your practice (which wishes to keep the carrier reasonably content for continued business), or the patient (who may wish to be excused from work without just cause—or, on the other hand, to return to work prematurely). Protect the patient and base your judgments on the facts. If you encounter any stiff resistance, solicit a colleague’s opinion.
Fifth, know whether other WC benefits have been paid out. If a previous injury has already been exacerbated, as in this case, take special efforts to ensure the patient’s condition does not worsen further.
Sixth, be wary of the impact of your intervention on the patient’s ability to work safely—including medications, and particularly narcotics. Think about it: You put the patient who works as a roofer on hydrocodone for back pain. The employer puts the patient on a roof, gravity puts the patient on the ground, and a lawyer puts you in court. You’ve indicated “no restrictions” for your patient to return to work as a roofer—although the hydrocodone bottle bears a sleepy-eye graphic right above the words “may cause dizziness.” A patient taking narcotics every four to six hours should not return to any job in which the effects of the medication themselves would be disqualifying. This also applies to any white-collar employees who may make suboptimal decisions as a result of taking such a medication. Therefore, view the injury and any potential adverse effects of your chosen therapy in light of the expected job duties. Where the two are incompatible, prohibit that duty.
Lastly, ask about driving: If driving lies within the employee’s scope of duties, it is directly addressable as a restriction. Although the patient with an acute neck strain may be able to sit in a cubicle in front of a monitor, he will not be able to drive a car safely.
Even when driving is not part of an employee’s duties, he still must drive to and from work. WC does not generally cover commuting; however, an employee on narcotics driving in the employer’s parking lot could present a hazard if he hits a co-worker. Therefore, make sure driving safety is thoroughly discussed with the patient and addressed. If driving is unsafe, make sure everyone knows it—even if it means the patient must find an alternative means of transportation to work. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.
The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.
The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.
Outcome
According to a published report, a $400,000 settlement was reached.
Comment
Treating patients in a workers’ compensation setting can present unique challenges.
We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?
For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.
In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.
If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.
Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.
For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.
Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while.
Third, when treating a patient in a WC setting who mentions a potentially dangerous activity in her day-to-day job description, it is helpful to ask—with a healthy amount of skepticism—“Well, how are you going to do that?” Even more important, “How are you going to safely do that?” If you and the patient cannot come up with a good answer in the exam room, chances are that none will be found at the workplace, either; the activity in question should be curtailed. Throughout your rigorous examination of the patient’s work duties, use your skeptical voice to probe for unsafe situations and challenge potential workarounds.
Maintain genuine concern for the employee. If you are being pressured to return that employee to unsafe conditions, it is generally helpful to remind the party in question that a prematurely returned patient who deteriorates will become an employee who is out longer and drawing benefits longer. Further, any catastrophic loss related to an on-the-job injury will be borne by the carrier. So, if our stagehand sustains a serious injury after falling from 50 feet up (because she was distracted by the pain from the burn on her thigh), the employer/carrier will be liable for her lifelong treatment. Clearly voice your concern about the potential for the patient’s injury or reinjury and the substantial losses that could result.
Fourth, don’t let anyone influence your judgment inappropriately. This could be the carrier (who wishes to avoid financial liability), the employer (who wishes the employee to return to unrestricted work), your practice (which wishes to keep the carrier reasonably content for continued business), or the patient (who may wish to be excused from work without just cause—or, on the other hand, to return to work prematurely). Protect the patient and base your judgments on the facts. If you encounter any stiff resistance, solicit a colleague’s opinion.
Fifth, know whether other WC benefits have been paid out. If a previous injury has already been exacerbated, as in this case, take special efforts to ensure the patient’s condition does not worsen further.
Sixth, be wary of the impact of your intervention on the patient’s ability to work safely—including medications, and particularly narcotics. Think about it: You put the patient who works as a roofer on hydrocodone for back pain. The employer puts the patient on a roof, gravity puts the patient on the ground, and a lawyer puts you in court. You’ve indicated “no restrictions” for your patient to return to work as a roofer—although the hydrocodone bottle bears a sleepy-eye graphic right above the words “may cause dizziness.” A patient taking narcotics every four to six hours should not return to any job in which the effects of the medication themselves would be disqualifying. This also applies to any white-collar employees who may make suboptimal decisions as a result of taking such a medication. Therefore, view the injury and any potential adverse effects of your chosen therapy in light of the expected job duties. Where the two are incompatible, prohibit that duty.
Lastly, ask about driving: If driving lies within the employee’s scope of duties, it is directly addressable as a restriction. Although the patient with an acute neck strain may be able to sit in a cubicle in front of a monitor, he will not be able to drive a car safely.
Even when driving is not part of an employee’s duties, he still must drive to and from work. WC does not generally cover commuting; however, an employee on narcotics driving in the employer’s parking lot could present a hazard if he hits a co-worker. Therefore, make sure driving safety is thoroughly discussed with the patient and addressed. If driving is unsafe, make sure everyone knows it—even if it means the patient must find an alternative means of transportation to work. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Man Returned to Unrestricted Work Too Soon
A 49-year-old New York man sustained a first back injury in 2002 while attempting to lift a bus engine, assisted by co-workers. He had been receiving workers’ compensation benefits for this injury when he sustained a second back injury. Sixteen days before the second injury, the patient had seen the defendant chiropractor, who returned him to unrestricted work despite herniations at L2-3, L4-5, and L5-S1; the patient signed a form acknowledging that he did not require further treatment and that he was able to resume work. After the second injury, the man underwent several months of conservative treatment but maintained that he had residual pain.
The plaintiff filed a medical malpractice claim against the chiropractor after the second injury, alleging failure to provide proper treatment. The plaintiff claimed that he was not, as the defendant had stated, fit to resume work and that the second injury occurred as a result of a typical, foreseeable, work-related task. The plaintiff claimed that the second injury caused aggravation of the preexisting herniation at L5-S1 and that this led to impingement of the thecal sac, resulting in foot drop.
The defendant claimed that the injury was the result of the patient’s own negligence in failing to use proper lifting technique.
Outcome
According to a published report, a $400,000 settlement was reached.
Comment
Treating patients in a workers’ compensation setting can present unique challenges.
We know this patient had herniations at L2-3, L4-5, and L5-S1, but we do not know whether he had recent symptoms before being returned to full duty, whether any functional limitations were evident on examination, or whether he was experiencing new radicular symptoms before the second injury. Many patients have some degree of herniation, which may or may not be symptomatic. Additionally, clinicians often see patients with lumbar disc disease of some type; was it foreseeable that the condition of a patient with established lumbar disc disease would deteriorate in response to continued (even proper-technique) lifting?
For several reasons, this case is worthy of discussion. The workers’ compensation (WC) system was set up to provide an “exclusive remedy” for any workplace injury sustained in the scope of ordinary employment. The employee gives up the right to sue the employer in court in exchange for the guarantee of prompt treatment for injuries and compensation for injuries and lost wages. However, there is a growing list of exceptions that permit an injured worker to seek recovery within the WC system by pursuing a legal case in court for the same injury.
In some states, a medical malpractice case is such an exception. It allows a patient to bring a suit against a clinician for an injury sustained while receiving WC for the same injury.
If you treat patients on WC, you need to consider a few points to avoid trouble. First, remember that you have a legal and ethical duty to the patient. The carrier may refer cases to your practice, but your obligation is to the patient. To be candid, the dynamics of a clinician-patient relationship in WC cases can be different from other patient encounters: Some WC cases are straightforward, while others can have a legalistic, quasi-adversarial feel. Approach the patient with warmth and candor while maintaining your professionalism. Jurors will expect you to provide good communication and high-quality treatment in WC cases.
Second, ask about the patient’s job description and make sure you understand all it entails before setting work limitations. It is reasonable and proper to tailor these limitations to the patient’s injury and to his or her day-to-day tasks. This can’t be done in a vacuum.
For example, a security guard who is in modest pain from a minor burn to the thigh could probably return to unrestricted duty. However, a theater stagehand, whose usual place of work is the top of a ladder 50 feet in the air, should not be returned to unrestricted duty with that same burn. Why? Because the ongoing action of moving up and down a ladder to hang theatrical props is more likely to exacerbate the pain, and the patient, distracted by the initial or worsening pain, could fall.
Further, understanding the patient’s daily duties will help you determine the likelihood that your restrictions may be exceeded—or ignored. If a worker’s job may involve lifting a bus engine, how can he be expected to return to work with a paper stating, “may not lift/carry more than 10 lb”? The injured employee may face resistance from his employer and co-workers if restrictions remove him from much of the day’s workload. It is the employer’s responsibility to find the employee work within the scope of prescribed limitations—and the clinician’s to inform the patient he will not be able to do his regular job for a while.
Third, when treating a patient in a WC setting who mentions a potentially dangerous activity in her day-to-day job description, it is helpful to ask—with a healthy amount of skepticism—“Well, how are you going to do that?” Even more important, “How are you going to safely do that?” If you and the patient cannot come up with a good answer in the exam room, chances are that none will be found at the workplace, either; the activity in question should be curtailed. Throughout your rigorous examination of the patient’s work duties, use your skeptical voice to probe for unsafe situations and challenge potential workarounds.
Maintain genuine concern for the employee. If you are being pressured to return that employee to unsafe conditions, it is generally helpful to remind the party in question that a prematurely returned patient who deteriorates will become an employee who is out longer and drawing benefits longer. Further, any catastrophic loss related to an on-the-job injury will be borne by the carrier. So, if our stagehand sustains a serious injury after falling from 50 feet up (because she was distracted by the pain from the burn on her thigh), the employer/carrier will be liable for her lifelong treatment. Clearly voice your concern about the potential for the patient’s injury or reinjury and the substantial losses that could result.
Fourth, don’t let anyone influence your judgment inappropriately. This could be the carrier (who wishes to avoid financial liability), the employer (who wishes the employee to return to unrestricted work), your practice (which wishes to keep the carrier reasonably content for continued business), or the patient (who may wish to be excused from work without just cause—or, on the other hand, to return to work prematurely). Protect the patient and base your judgments on the facts. If you encounter any stiff resistance, solicit a colleague’s opinion.
Fifth, know whether other WC benefits have been paid out. If a previous injury has already been exacerbated, as in this case, take special efforts to ensure the patient’s condition does not worsen further.
Sixth, be wary of the impact of your intervention on the patient’s ability to work safely—including medications, and particularly narcotics. Think about it: You put the patient who works as a roofer on hydrocodone for back pain. The employer puts the patient on a roof, gravity puts the patient on the ground, and a lawyer puts you in court. You’ve indicated “no restrictions” for your patient to return to work as a roofer—although the hydrocodone bottle bears a sleepy-eye graphic right above the words “may cause dizziness.” A patient taking narcotics every four to six hours should not return to any job in which the effects of the medication themselves would be disqualifying. This also applies to any white-collar employees who may make suboptimal decisions as a result of taking such a medication. Therefore, view the injury and any potential adverse effects of your chosen therapy in light of the expected job duties. Where the two are incompatible, prohibit that duty.
Lastly, ask about driving: If driving lies within the employee’s scope of duties, it is directly addressable as a restriction. Although the patient with an acute neck strain may be able to sit in a cubicle in front of a monitor, he will not be able to drive a car safely.
Even when driving is not part of an employee’s duties, he still must drive to and from work. WC does not generally cover commuting; however, an employee on narcotics driving in the employer’s parking lot could present a hazard if he hits a co-worker. Therefore, make sure driving safety is thoroughly discussed with the patient and addressed. If driving is unsafe, make sure everyone knows it—even if it means the patient must find an alternative means of transportation to work. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Pain Out of Proportion to a Fracture
A 57-year-old woman fell down stairs, causing injury to her left shoulder. She presented to a New Jersey hospital emergency department, where the emergency physician ordered films and a radiologist interpreted the injury as a simple fracture.
The patient contended she had actually dislocated her shoulder and that because of a delay in treatment, her condition worsened, leaving her unable to use her left hand.
The plaintiff claimed that the radiologist had misread the x-rays and that the emergency physician failed to realize her pain was out of proportion to the diagnosis. The plaintiff claimed that the emergency physician should have ordered more tests and sought a radiological consult. Two nurses were also named as defendants, with the plaintiff maintaining that they had failed to notify the emergency physician when her condition deteriorated.
Outcome
According to a published account, a $2.75 million settlement was reached. The hospital, the emergency physician, and the nurses will pay a total of $1.5 million, and the radiologist, $1.25 million.
Comment
Complex regional pain syndrome(CRPS, formerly known as reflex sympathetic dystrophy) is frequently a source of litigation. Though CRPS is not specifically mentioned in this case synopsis, given the $2.75 million settlement, it seems highly likely that CRPS was claimed as the resulting injury. A relatively minor trauma can lead to CRPS, and why only certain patients subsequently develop the syndrome is a mystery. Yet it is no mystery that CPRS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.
Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CPRS is unclear, liability is often hotly debated, with cases difficult to defend.
Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because liability may be uncertain, but the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.
Here, presumptively, the 57-year-old patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.
Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.
One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.
But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.
In this case, recognition of out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 2998-6288.
A 57-year-old woman fell down stairs, causing injury to her left shoulder. She presented to a New Jersey hospital emergency department, where the emergency physician ordered films and a radiologist interpreted the injury as a simple fracture.
The patient contended she had actually dislocated her shoulder and that because of a delay in treatment, her condition worsened, leaving her unable to use her left hand.
The plaintiff claimed that the radiologist had misread the x-rays and that the emergency physician failed to realize her pain was out of proportion to the diagnosis. The plaintiff claimed that the emergency physician should have ordered more tests and sought a radiological consult. Two nurses were also named as defendants, with the plaintiff maintaining that they had failed to notify the emergency physician when her condition deteriorated.
Outcome
According to a published account, a $2.75 million settlement was reached. The hospital, the emergency physician, and the nurses will pay a total of $1.5 million, and the radiologist, $1.25 million.
Comment
Complex regional pain syndrome(CRPS, formerly known as reflex sympathetic dystrophy) is frequently a source of litigation. Though CRPS is not specifically mentioned in this case synopsis, given the $2.75 million settlement, it seems highly likely that CRPS was claimed as the resulting injury. A relatively minor trauma can lead to CRPS, and why only certain patients subsequently develop the syndrome is a mystery. Yet it is no mystery that CPRS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.
Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CPRS is unclear, liability is often hotly debated, with cases difficult to defend.
Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because liability may be uncertain, but the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.
Here, presumptively, the 57-year-old patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.
Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.
One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.
But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.
In this case, recognition of out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 2998-6288.
A 57-year-old woman fell down stairs, causing injury to her left shoulder. She presented to a New Jersey hospital emergency department, where the emergency physician ordered films and a radiologist interpreted the injury as a simple fracture.
The patient contended she had actually dislocated her shoulder and that because of a delay in treatment, her condition worsened, leaving her unable to use her left hand.
The plaintiff claimed that the radiologist had misread the x-rays and that the emergency physician failed to realize her pain was out of proportion to the diagnosis. The plaintiff claimed that the emergency physician should have ordered more tests and sought a radiological consult. Two nurses were also named as defendants, with the plaintiff maintaining that they had failed to notify the emergency physician when her condition deteriorated.
Outcome
According to a published account, a $2.75 million settlement was reached. The hospital, the emergency physician, and the nurses will pay a total of $1.5 million, and the radiologist, $1.25 million.
Comment
Complex regional pain syndrome(CRPS, formerly known as reflex sympathetic dystrophy) is frequently a source of litigation. Though CRPS is not specifically mentioned in this case synopsis, given the $2.75 million settlement, it seems highly likely that CRPS was claimed as the resulting injury. A relatively minor trauma can lead to CRPS, and why only certain patients subsequently develop the syndrome is a mystery. Yet it is no mystery that CPRS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.
Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CPRS is unclear, liability is often hotly debated, with cases difficult to defend.
Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because liability may be uncertain, but the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.
Here, presumptively, the 57-year-old patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.
Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.
One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.
But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.
In this case, recognition of out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 2998-6288.
Sinus Surgery With 18-Minute Monitoring Gap
A Massachusetts woman, age 37, underwent elective outpatient sinus surgery to address recurrent sinus infections. Shortly after the procedure began, the patient was administered cocaine as an anesthetic, which triggered an expected rise in her blood pressure. The defendant anesthesiologist administered a 10-mg dose of labetalol to treat the blood pressure. The patient was given a second dose only five minutes later.
Another five minutes later, after the patient’s blood pressure had already fallen, the defendant administered a third dose of labetalol. Eighteen minutes passed without documentation of the patient’s vital signs, apparently during a shift change of the nursing staff. After the 18 minutes, the record indicated that the patient’s blood pressure was not obtainable; she was cyanotic and mottled and in cardiac arrest.
Resuscitation was initiated and the patient was defibrillated three times, with a return to normal sinus rhythm after 12 minutes. She was subsequently diagnosed with anoxic encephalopathy, cerebral edema, and hypoxic brain injury. Since the incident, she requires ongoing supervision and care.
The plaintiff alleged that the anesthesiologist failed to monitor the patient. The plaintiff also claimed that normal practice is to wait 10 minutes, not five minutes, before administering a second dose of labetalol, and that a third dose should not have been administered.
Outcome
According to a published account, a $2 million settlement was reached.
Comment
Medical malpractice cases involving anesthesia are common, and anesthesia is considered a “high-risk” practice environment. Given the inherent hazards of managing a patient’s airway, ventilation, and perfusion status, errors can cause rapid deterioration and a poor outcome.
From the layperson juror’s point of view, the utmost care and vigilance are always required when a patient is “under the gas.” Jurors expect careful preoperative screening, direct and attentive intraoperative management, and close postoperative observation.
Here, we do not know how high the patient’s blood pressure rose before labetalol was administered. We do know that no intraoperative vital signs were recorded for 18 minutes. We also know that the plaintiff’s expert witness testified that the patient was improperly administered the second dose of labetalol after five minutes, and a third dose after another five minutes—after the patient’s pressure had already started to drop.
Generally, the anesthesiologist/anesthetist records vital signs; it is probable that the 18-minute gap occurred after the patient’s condition deteriorated, while the anesthesiologist was attempting to correct the patient’s hypotension and was thus distracted from recording vital signs.
In this case, jurors would have little trouble concluding that the standard of care was breached. This case settled before going to trial, likely on the recognition that the missing vital signs records provided a problem for the defense.
It has been said that the practice of anesthesia is “usually terribly simple but sometimes simply terrible”; and that it is defined by “hours of boredom punctuated by moments of sheer terror.” Regardless of how you feel about these characterizations, cases can go bad quickly. Like the airline pilot who must immediately transition from cruising on autopilot to operating in “mayday” mode, anesthesia practitioners must have systems in place to recognize danger and quickly transition from the routine to the emergent. Additionally, anesthesia departments must have a plan in place to assist anesthesia personnel who are in trouble, and issue a “mayday” call—allowing help and resources to be dispatched quickly to the patient’s side. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A Massachusetts woman, age 37, underwent elective outpatient sinus surgery to address recurrent sinus infections. Shortly after the procedure began, the patient was administered cocaine as an anesthetic, which triggered an expected rise in her blood pressure. The defendant anesthesiologist administered a 10-mg dose of labetalol to treat the blood pressure. The patient was given a second dose only five minutes later.
Another five minutes later, after the patient’s blood pressure had already fallen, the defendant administered a third dose of labetalol. Eighteen minutes passed without documentation of the patient’s vital signs, apparently during a shift change of the nursing staff. After the 18 minutes, the record indicated that the patient’s blood pressure was not obtainable; she was cyanotic and mottled and in cardiac arrest.
Resuscitation was initiated and the patient was defibrillated three times, with a return to normal sinus rhythm after 12 minutes. She was subsequently diagnosed with anoxic encephalopathy, cerebral edema, and hypoxic brain injury. Since the incident, she requires ongoing supervision and care.
The plaintiff alleged that the anesthesiologist failed to monitor the patient. The plaintiff also claimed that normal practice is to wait 10 minutes, not five minutes, before administering a second dose of labetalol, and that a third dose should not have been administered.
Outcome
According to a published account, a $2 million settlement was reached.
Comment
Medical malpractice cases involving anesthesia are common, and anesthesia is considered a “high-risk” practice environment. Given the inherent hazards of managing a patient’s airway, ventilation, and perfusion status, errors can cause rapid deterioration and a poor outcome.
From the layperson juror’s point of view, the utmost care and vigilance are always required when a patient is “under the gas.” Jurors expect careful preoperative screening, direct and attentive intraoperative management, and close postoperative observation.
Here, we do not know how high the patient’s blood pressure rose before labetalol was administered. We do know that no intraoperative vital signs were recorded for 18 minutes. We also know that the plaintiff’s expert witness testified that the patient was improperly administered the second dose of labetalol after five minutes, and a third dose after another five minutes—after the patient’s pressure had already started to drop.
Generally, the anesthesiologist/anesthetist records vital signs; it is probable that the 18-minute gap occurred after the patient’s condition deteriorated, while the anesthesiologist was attempting to correct the patient’s hypotension and was thus distracted from recording vital signs.
In this case, jurors would have little trouble concluding that the standard of care was breached. This case settled before going to trial, likely on the recognition that the missing vital signs records provided a problem for the defense.
It has been said that the practice of anesthesia is “usually terribly simple but sometimes simply terrible”; and that it is defined by “hours of boredom punctuated by moments of sheer terror.” Regardless of how you feel about these characterizations, cases can go bad quickly. Like the airline pilot who must immediately transition from cruising on autopilot to operating in “mayday” mode, anesthesia practitioners must have systems in place to recognize danger and quickly transition from the routine to the emergent. Additionally, anesthesia departments must have a plan in place to assist anesthesia personnel who are in trouble, and issue a “mayday” call—allowing help and resources to be dispatched quickly to the patient’s side. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A Massachusetts woman, age 37, underwent elective outpatient sinus surgery to address recurrent sinus infections. Shortly after the procedure began, the patient was administered cocaine as an anesthetic, which triggered an expected rise in her blood pressure. The defendant anesthesiologist administered a 10-mg dose of labetalol to treat the blood pressure. The patient was given a second dose only five minutes later.
Another five minutes later, after the patient’s blood pressure had already fallen, the defendant administered a third dose of labetalol. Eighteen minutes passed without documentation of the patient’s vital signs, apparently during a shift change of the nursing staff. After the 18 minutes, the record indicated that the patient’s blood pressure was not obtainable; she was cyanotic and mottled and in cardiac arrest.
Resuscitation was initiated and the patient was defibrillated three times, with a return to normal sinus rhythm after 12 minutes. She was subsequently diagnosed with anoxic encephalopathy, cerebral edema, and hypoxic brain injury. Since the incident, she requires ongoing supervision and care.
The plaintiff alleged that the anesthesiologist failed to monitor the patient. The plaintiff also claimed that normal practice is to wait 10 minutes, not five minutes, before administering a second dose of labetalol, and that a third dose should not have been administered.
Outcome
According to a published account, a $2 million settlement was reached.
Comment
Medical malpractice cases involving anesthesia are common, and anesthesia is considered a “high-risk” practice environment. Given the inherent hazards of managing a patient’s airway, ventilation, and perfusion status, errors can cause rapid deterioration and a poor outcome.
From the layperson juror’s point of view, the utmost care and vigilance are always required when a patient is “under the gas.” Jurors expect careful preoperative screening, direct and attentive intraoperative management, and close postoperative observation.
Here, we do not know how high the patient’s blood pressure rose before labetalol was administered. We do know that no intraoperative vital signs were recorded for 18 minutes. We also know that the plaintiff’s expert witness testified that the patient was improperly administered the second dose of labetalol after five minutes, and a third dose after another five minutes—after the patient’s pressure had already started to drop.
Generally, the anesthesiologist/anesthetist records vital signs; it is probable that the 18-minute gap occurred after the patient’s condition deteriorated, while the anesthesiologist was attempting to correct the patient’s hypotension and was thus distracted from recording vital signs.
In this case, jurors would have little trouble concluding that the standard of care was breached. This case settled before going to trial, likely on the recognition that the missing vital signs records provided a problem for the defense.
It has been said that the practice of anesthesia is “usually terribly simple but sometimes simply terrible”; and that it is defined by “hours of boredom punctuated by moments of sheer terror.” Regardless of how you feel about these characterizations, cases can go bad quickly. Like the airline pilot who must immediately transition from cruising on autopilot to operating in “mayday” mode, anesthesia practitioners must have systems in place to recognize danger and quickly transition from the routine to the emergent. Additionally, anesthesia departments must have a plan in place to assist anesthesia personnel who are in trouble, and issue a “mayday” call—allowing help and resources to be dispatched quickly to the patient’s side. —DML
Cases reprinted with permission fromMedical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.