Medicolegal Issues

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pseudo–Brain Tumor Impairs Woman’s Vision
In Kentucky, a 22-year-old woman went to the ED with a 10-day history of painful headache. According to the patient, she told the defendant emergency physician, Dr. W., that she had been having vision problems. Dr. W. made a diagnosis of stress and advised the patient to rest. When the woman’s condition had not improved a few weeks later, she visited her primary care physician, Dr. C. She was given a diagnosis of migraine.

During the succeeding month, the patient’s vision worsened. Ultimately, she was diagnosed with a pseudo–brain tumor. Despite aggressive intervention, she experienced significant vision loss.

The plaintiff alleged negligence in her physicians’ failure to make a timely diagnosis. She claimed that CT or fundoscopy should have been performed in the ED and also alleged negligence in Dr. C.’s diagnosis of migraine.

Dr. C. settled prior to trial. Dr. W. claimed that the plaintiff’s presentation and complaints made his treatment reasonable and that in the absence of trauma to the eye, an emergency physician would not normally check for visual acuity. The defendant also contended that the plaintiff’s condition was rare and would have been difficult to diagnose. The defendant also blamed the plaintiff for her delay in seeking follow-up care.

OUTCOME
A jury found the defendant emergency physician 30% at fault, the settling physician 50% at fault, and the plaintiff 20% at fault. The verdict totaled $685,000, including a $205,500 judgment against Dr. W.

COMMENT
Primary care providers see nontraumatic headaches every day. Though usually self-limiting and benign, headaches can also be the only symptom of a serious or fatal condition, including subarachnoid hemorrhage (SAH), meningitis, or giant-cell arteritis. Additionally problematic is the patient with previous headache who presents with headache of a different character or new symptomatology.

Pseudotumor cerebri, or idiopathic intracranial hypertension (IIH), presents subtly but may end with progressive optic atrophy and blindness. Despite its elusive etiology, IIH develops more commonly among women of childbearing age with an elevated BMI. Its nonspecific signs and symptoms include headache and vomiting. More specific clues include pulsatile tinnitus and horizontal diplopia. Progressive loss of peripheral vision, transient visual dimming or blackout in one or both eyes, and blurring and distortion of central vision can occur.

Papilledema is generally present, with venous engorgement, loss of venous pulsation, hemorrhages over or adjacent to the optic disc, elevation or blurring of disc margins, and retinal striae. Performing fundoscopic examination correctly can be challenging, and papilledema can be missed. For those who haven’t seen clinical evidence of papilledema in some time, reviewing retinal findings is encouraged.

Real-world challenges can hinder examination: well-meaning staff who dim the lights to near-blackout conditions; inaccessibility to the patient cocooned in blankets; the chronic pain patient who resists examination, insisting, “I’m just here for my pain medicine.” Don’t let impediments like these hinder your examination.

The physical exam must include neurologic testing—cranial nerve and fundoscopic examination, ocular motility, and visual field testing. It is important to recognize and validate the patient’s pain, but don’t skimp on the exam to spare them discomfort.

To rule out intraocular pathology, visual acuity should be tested. Acuity testing provides objective data and may reveal visual symptoms, such as scotoma or blurred vision. Visual acuity should be considered a vital sign for patients presenting with primary ocular complaints or headache.

Neuroimaging is generally indicated in headache with new abnormal neurologic findings (eg, altered metal status or cognitive function or focal deficit); a new sudden-onset severe headache; or a new headache in any HIV-positive patient. When SAH is a possibility (“thunderclap” headache or “worst in life” with swift intensity), neuroimaging, followed by cerebrospinal fluid analysis and observation, is required.

In this case, fundoscopy and visual field testing were warranted, and acuity testing would be reasonable. The patient’s headache was new, and if the symptoms were severe or if papilledema or visual field defects were discovered, neuroimaging was indicated.

Using “stress” as a diagnostic term may later be brandished by a plaintiff’s attorney as a sign that a patient with organic disease was not taken seriously.

Lastly, patients with a diagnosis of tension headache should be instructed to return if other symptoms arise or the headache changes or worsens—all documented in the patient’s record.—DML           

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pseudo–Brain Tumor Impairs Woman’s Vision
In Kentucky, a 22-year-old woman went to the ED with a 10-day history of painful headache. According to the patient, she told the defendant emergency physician, Dr. W., that she had been having vision problems. Dr. W. made a diagnosis of stress and advised the patient to rest. When the woman’s condition had not improved a few weeks later, she visited her primary care physician, Dr. C. She was given a diagnosis of migraine.

During the succeeding month, the patient’s vision worsened. Ultimately, she was diagnosed with a pseudo–brain tumor. Despite aggressive intervention, she experienced significant vision loss.

The plaintiff alleged negligence in her physicians’ failure to make a timely diagnosis. She claimed that CT or fundoscopy should have been performed in the ED and also alleged negligence in Dr. C.’s diagnosis of migraine.

Dr. C. settled prior to trial. Dr. W. claimed that the plaintiff’s presentation and complaints made his treatment reasonable and that in the absence of trauma to the eye, an emergency physician would not normally check for visual acuity. The defendant also contended that the plaintiff’s condition was rare and would have been difficult to diagnose. The defendant also blamed the plaintiff for her delay in seeking follow-up care.

OUTCOME
A jury found the defendant emergency physician 30% at fault, the settling physician 50% at fault, and the plaintiff 20% at fault. The verdict totaled $685,000, including a $205,500 judgment against Dr. W.

COMMENT
Primary care providers see nontraumatic headaches every day. Though usually self-limiting and benign, headaches can also be the only symptom of a serious or fatal condition, including subarachnoid hemorrhage (SAH), meningitis, or giant-cell arteritis. Additionally problematic is the patient with previous headache who presents with headache of a different character or new symptomatology.

Pseudotumor cerebri, or idiopathic intracranial hypertension (IIH), presents subtly but may end with progressive optic atrophy and blindness. Despite its elusive etiology, IIH develops more commonly among women of childbearing age with an elevated BMI. Its nonspecific signs and symptoms include headache and vomiting. More specific clues include pulsatile tinnitus and horizontal diplopia. Progressive loss of peripheral vision, transient visual dimming or blackout in one or both eyes, and blurring and distortion of central vision can occur.

Papilledema is generally present, with venous engorgement, loss of venous pulsation, hemorrhages over or adjacent to the optic disc, elevation or blurring of disc margins, and retinal striae. Performing fundoscopic examination correctly can be challenging, and papilledema can be missed. For those who haven’t seen clinical evidence of papilledema in some time, reviewing retinal findings is encouraged.

Real-world challenges can hinder examination: well-meaning staff who dim the lights to near-blackout conditions; inaccessibility to the patient cocooned in blankets; the chronic pain patient who resists examination, insisting, “I’m just here for my pain medicine.” Don’t let impediments like these hinder your examination.

The physical exam must include neurologic testing—cranial nerve and fundoscopic examination, ocular motility, and visual field testing. It is important to recognize and validate the patient’s pain, but don’t skimp on the exam to spare them discomfort.

To rule out intraocular pathology, visual acuity should be tested. Acuity testing provides objective data and may reveal visual symptoms, such as scotoma or blurred vision. Visual acuity should be considered a vital sign for patients presenting with primary ocular complaints or headache.

Neuroimaging is generally indicated in headache with new abnormal neurologic findings (eg, altered metal status or cognitive function or focal deficit); a new sudden-onset severe headache; or a new headache in any HIV-positive patient. When SAH is a possibility (“thunderclap” headache or “worst in life” with swift intensity), neuroimaging, followed by cerebrospinal fluid analysis and observation, is required.

In this case, fundoscopy and visual field testing were warranted, and acuity testing would be reasonable. The patient’s headache was new, and if the symptoms were severe or if papilledema or visual field defects were discovered, neuroimaging was indicated.

Using “stress” as a diagnostic term may later be brandished by a plaintiff’s attorney as a sign that a patient with organic disease was not taken seriously.

Lastly, patients with a diagnosis of tension headache should be instructed to return if other symptoms arise or the headache changes or worsens—all documented in the patient’s record.—DML           

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Pseudo–Brain Tumor Impairs Woman’s Vision
In Kentucky, a 22-year-old woman went to the ED with a 10-day history of painful headache. According to the patient, she told the defendant emergency physician, Dr. W., that she had been having vision problems. Dr. W. made a diagnosis of stress and advised the patient to rest. When the woman’s condition had not improved a few weeks later, she visited her primary care physician, Dr. C. She was given a diagnosis of migraine.

During the succeeding month, the patient’s vision worsened. Ultimately, she was diagnosed with a pseudo–brain tumor. Despite aggressive intervention, she experienced significant vision loss.

The plaintiff alleged negligence in her physicians’ failure to make a timely diagnosis. She claimed that CT or fundoscopy should have been performed in the ED and also alleged negligence in Dr. C.’s diagnosis of migraine.

Dr. C. settled prior to trial. Dr. W. claimed that the plaintiff’s presentation and complaints made his treatment reasonable and that in the absence of trauma to the eye, an emergency physician would not normally check for visual acuity. The defendant also contended that the plaintiff’s condition was rare and would have been difficult to diagnose. The defendant also blamed the plaintiff for her delay in seeking follow-up care.

OUTCOME
A jury found the defendant emergency physician 30% at fault, the settling physician 50% at fault, and the plaintiff 20% at fault. The verdict totaled $685,000, including a $205,500 judgment against Dr. W.

COMMENT
Primary care providers see nontraumatic headaches every day. Though usually self-limiting and benign, headaches can also be the only symptom of a serious or fatal condition, including subarachnoid hemorrhage (SAH), meningitis, or giant-cell arteritis. Additionally problematic is the patient with previous headache who presents with headache of a different character or new symptomatology.

Pseudotumor cerebri, or idiopathic intracranial hypertension (IIH), presents subtly but may end with progressive optic atrophy and blindness. Despite its elusive etiology, IIH develops more commonly among women of childbearing age with an elevated BMI. Its nonspecific signs and symptoms include headache and vomiting. More specific clues include pulsatile tinnitus and horizontal diplopia. Progressive loss of peripheral vision, transient visual dimming or blackout in one or both eyes, and blurring and distortion of central vision can occur.

Papilledema is generally present, with venous engorgement, loss of venous pulsation, hemorrhages over or adjacent to the optic disc, elevation or blurring of disc margins, and retinal striae. Performing fundoscopic examination correctly can be challenging, and papilledema can be missed. For those who haven’t seen clinical evidence of papilledema in some time, reviewing retinal findings is encouraged.

Real-world challenges can hinder examination: well-meaning staff who dim the lights to near-blackout conditions; inaccessibility to the patient cocooned in blankets; the chronic pain patient who resists examination, insisting, “I’m just here for my pain medicine.” Don’t let impediments like these hinder your examination.

The physical exam must include neurologic testing—cranial nerve and fundoscopic examination, ocular motility, and visual field testing. It is important to recognize and validate the patient’s pain, but don’t skimp on the exam to spare them discomfort.

To rule out intraocular pathology, visual acuity should be tested. Acuity testing provides objective data and may reveal visual symptoms, such as scotoma or blurred vision. Visual acuity should be considered a vital sign for patients presenting with primary ocular complaints or headache.

Neuroimaging is generally indicated in headache with new abnormal neurologic findings (eg, altered metal status or cognitive function or focal deficit); a new sudden-onset severe headache; or a new headache in any HIV-positive patient. When SAH is a possibility (“thunderclap” headache or “worst in life” with swift intensity), neuroimaging, followed by cerebrospinal fluid analysis and observation, is required.

In this case, fundoscopy and visual field testing were warranted, and acuity testing would be reasonable. The patient’s headache was new, and if the symptoms were severe or if papilledema or visual field defects were discovered, neuroimaging was indicated.

Using “stress” as a diagnostic term may later be brandished by a plaintiff’s attorney as a sign that a patient with organic disease was not taken seriously.

Lastly, patients with a diagnosis of tension headache should be instructed to return if other symptoms arise or the headache changes or worsens—all documented in the patient’s record.—DML           

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Failure to Diagnose Neck Fracture
A California woman in her 60s slipped and fell on a wheelchair ramp outside her home. At the emergency department (ED), she was treated and released by Dr. A., who made a diagnosis of neck sprain. Two days later, she presented to the office of her family physician, Dr. B., where she was seen by a nurse; again, she was diagnosed with a sprained neck.

A CT performed one month later revealed a fractured vertebra in the woman’s neck. By the time the fracture was discovered, the vertebra had already begun to heal in a misaligned position. No further treatment was possible. The patient could no longer turn her head to the left and her ability to turn to the right was limited.

The plaintiff alleged negligence by the defendants in the failure to diagnose her fractured neck.

The defendants claimed that even timely intervention would not have changed the outcome.

Outcome
According to a published account, Dr. A. settled for $9,000 before trial, and Dr. B. settled for $29,999. A defense verdict was returned.

Comment
The facts of the case as presented do not include specifics regarding initial presentation or clinician work-up. When clinicians are confronted with neck pain following trauma, they must decide whether or not to image. Decision rules such as the Canadian C-Spine Rule (CCR) and the National Emergency X-Radiography Utilization Study (NEXUS) can help clinicians make this determination.

The CCR standard requires the patient to (i) be alert and not intoxicated, (ii) not have a distracting injury, (iii) not be considered high-risk, (iv) have at least one low-risk factor, allowing safe assessment of the cervical range of motion, and (v) be able to actively rotate the neck 45° left and right.

High-risk factors include age greater than 65, a dangerous mechanism, or paresthesias in the extremities.

Low-risk factors include a simple rear-end motor vehicle collision, sitting position in the ED, ability to ambulate at any time, delayed onset of neck pain, and absence of midline cervical spinal tenderness.

A dangerous mechanism includes a fall from an elevation greater than 3 ft or five stairs; an axial load to the head (eg, diving); a motor vehicle collision at high speed (> 100 km/h) or involving rollover or ejection; a collision involving a motorized recreational vehicle; or a bicycle collision.

NEXUS requires cervical spine radiography unless the patient meets all of the following criteria: (i) no posterior midline cervical-spine tenderness, (ii) no evidence of intoxication, (iii) a normal level of alertness, (iv) no focal neurologic deficit, and (v) no painful distracting injuries. The NEXUS standard may be recalled using the helpful mnemonic NSAID: Neuro deficit, Spinal tenderness (midline), Altered mental status or loss of consciousness, Intoxication, Distracting injury.

In this case, we don’t know whether the patient was older than 65 and can assume the wheelchair ramp was not so steep as to produce a 3-ft drop. There is no evidence the patient had a distracting injury or exhibited midline cervical tenderness, paresthesias, or other neurologic impairment.

Given the omissions from the case description, it is likely that the patient’s presentation was reassuring. If she was older than 65, following the CCR may have led to a decision to image, whereas applying NEXUS would not.

In this case, the modest $39,000 settlement against two defendants may reflect a decision to settle made by the insurance company, not the clinicians. Some medical malpractice policies give the insurance company authority to settle, allowing a settlement without the clinician’s consent. Insurers will often settle even “nuisance” suits for the cost of the trial, but the settlement will net the clinician an adverse National Practitioner Data Bank record.

Does your malpractice policy give you settlement authority—or the insurance company? This may be an important (or at least interesting) discussion to have with your colleagues!

In sum, when assessing patients with neck pain and trauma, it is advisable to know and apply evidence-based rules, such as CCR or NEXUS. Record your application of the selected rule in the medical record. It may be your best defense if you are challenged after a decision not to image. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Failure to Diagnose Neck Fracture
A California woman in her 60s slipped and fell on a wheelchair ramp outside her home. At the emergency department (ED), she was treated and released by Dr. A., who made a diagnosis of neck sprain. Two days later, she presented to the office of her family physician, Dr. B., where she was seen by a nurse; again, she was diagnosed with a sprained neck.

A CT performed one month later revealed a fractured vertebra in the woman’s neck. By the time the fracture was discovered, the vertebra had already begun to heal in a misaligned position. No further treatment was possible. The patient could no longer turn her head to the left and her ability to turn to the right was limited.

The plaintiff alleged negligence by the defendants in the failure to diagnose her fractured neck.

The defendants claimed that even timely intervention would not have changed the outcome.

Outcome
According to a published account, Dr. A. settled for $9,000 before trial, and Dr. B. settled for $29,999. A defense verdict was returned.

Comment
The facts of the case as presented do not include specifics regarding initial presentation or clinician work-up. When clinicians are confronted with neck pain following trauma, they must decide whether or not to image. Decision rules such as the Canadian C-Spine Rule (CCR) and the National Emergency X-Radiography Utilization Study (NEXUS) can help clinicians make this determination.

The CCR standard requires the patient to (i) be alert and not intoxicated, (ii) not have a distracting injury, (iii) not be considered high-risk, (iv) have at least one low-risk factor, allowing safe assessment of the cervical range of motion, and (v) be able to actively rotate the neck 45° left and right.

High-risk factors include age greater than 65, a dangerous mechanism, or paresthesias in the extremities.

Low-risk factors include a simple rear-end motor vehicle collision, sitting position in the ED, ability to ambulate at any time, delayed onset of neck pain, and absence of midline cervical spinal tenderness.

A dangerous mechanism includes a fall from an elevation greater than 3 ft or five stairs; an axial load to the head (eg, diving); a motor vehicle collision at high speed (> 100 km/h) or involving rollover or ejection; a collision involving a motorized recreational vehicle; or a bicycle collision.

NEXUS requires cervical spine radiography unless the patient meets all of the following criteria: (i) no posterior midline cervical-spine tenderness, (ii) no evidence of intoxication, (iii) a normal level of alertness, (iv) no focal neurologic deficit, and (v) no painful distracting injuries. The NEXUS standard may be recalled using the helpful mnemonic NSAID: Neuro deficit, Spinal tenderness (midline), Altered mental status or loss of consciousness, Intoxication, Distracting injury.

In this case, we don’t know whether the patient was older than 65 and can assume the wheelchair ramp was not so steep as to produce a 3-ft drop. There is no evidence the patient had a distracting injury or exhibited midline cervical tenderness, paresthesias, or other neurologic impairment.

Given the omissions from the case description, it is likely that the patient’s presentation was reassuring. If she was older than 65, following the CCR may have led to a decision to image, whereas applying NEXUS would not.

In this case, the modest $39,000 settlement against two defendants may reflect a decision to settle made by the insurance company, not the clinicians. Some medical malpractice policies give the insurance company authority to settle, allowing a settlement without the clinician’s consent. Insurers will often settle even “nuisance” suits for the cost of the trial, but the settlement will net the clinician an adverse National Practitioner Data Bank record.

Does your malpractice policy give you settlement authority—or the insurance company? This may be an important (or at least interesting) discussion to have with your colleagues!

In sum, when assessing patients with neck pain and trauma, it is advisable to know and apply evidence-based rules, such as CCR or NEXUS. Record your application of the selected rule in the medical record. It may be your best defense if you are challenged after a decision not to image. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Failure to Diagnose Neck Fracture
A California woman in her 60s slipped and fell on a wheelchair ramp outside her home. At the emergency department (ED), she was treated and released by Dr. A., who made a diagnosis of neck sprain. Two days later, she presented to the office of her family physician, Dr. B., where she was seen by a nurse; again, she was diagnosed with a sprained neck.

A CT performed one month later revealed a fractured vertebra in the woman’s neck. By the time the fracture was discovered, the vertebra had already begun to heal in a misaligned position. No further treatment was possible. The patient could no longer turn her head to the left and her ability to turn to the right was limited.

The plaintiff alleged negligence by the defendants in the failure to diagnose her fractured neck.

The defendants claimed that even timely intervention would not have changed the outcome.

Outcome
According to a published account, Dr. A. settled for $9,000 before trial, and Dr. B. settled for $29,999. A defense verdict was returned.

Comment
The facts of the case as presented do not include specifics regarding initial presentation or clinician work-up. When clinicians are confronted with neck pain following trauma, they must decide whether or not to image. Decision rules such as the Canadian C-Spine Rule (CCR) and the National Emergency X-Radiography Utilization Study (NEXUS) can help clinicians make this determination.

The CCR standard requires the patient to (i) be alert and not intoxicated, (ii) not have a distracting injury, (iii) not be considered high-risk, (iv) have at least one low-risk factor, allowing safe assessment of the cervical range of motion, and (v) be able to actively rotate the neck 45° left and right.

High-risk factors include age greater than 65, a dangerous mechanism, or paresthesias in the extremities.

Low-risk factors include a simple rear-end motor vehicle collision, sitting position in the ED, ability to ambulate at any time, delayed onset of neck pain, and absence of midline cervical spinal tenderness.

A dangerous mechanism includes a fall from an elevation greater than 3 ft or five stairs; an axial load to the head (eg, diving); a motor vehicle collision at high speed (> 100 km/h) or involving rollover or ejection; a collision involving a motorized recreational vehicle; or a bicycle collision.

NEXUS requires cervical spine radiography unless the patient meets all of the following criteria: (i) no posterior midline cervical-spine tenderness, (ii) no evidence of intoxication, (iii) a normal level of alertness, (iv) no focal neurologic deficit, and (v) no painful distracting injuries. The NEXUS standard may be recalled using the helpful mnemonic NSAID: Neuro deficit, Spinal tenderness (midline), Altered mental status or loss of consciousness, Intoxication, Distracting injury.

In this case, we don’t know whether the patient was older than 65 and can assume the wheelchair ramp was not so steep as to produce a 3-ft drop. There is no evidence the patient had a distracting injury or exhibited midline cervical tenderness, paresthesias, or other neurologic impairment.

Given the omissions from the case description, it is likely that the patient’s presentation was reassuring. If she was older than 65, following the CCR may have led to a decision to image, whereas applying NEXUS would not.

In this case, the modest $39,000 settlement against two defendants may reflect a decision to settle made by the insurance company, not the clinicians. Some medical malpractice policies give the insurance company authority to settle, allowing a settlement without the clinician’s consent. Insurers will often settle even “nuisance” suits for the cost of the trial, but the settlement will net the clinician an adverse National Practitioner Data Bank record.

Does your malpractice policy give you settlement authority—or the insurance company? This may be an important (or at least interesting) discussion to have with your colleagues!

In sum, when assessing patients with neck pain and trauma, it is advisable to know and apply evidence-based rules, such as CCR or NEXUS. Record your application of the selected rule in the medical record. It may be your best defense if you are challenged after a decision not to image. —DML

Had C difficile cleared before chemotherapy?

THE DIAGNOSIS WAS BREAST CANCER for a 54-year-old woman. In May 2006, a surgeon performed a mastectomy and prescribed postoperative antibiotics.

In July, the patient became ill and was treated for Clostridium difficile infection. She began a course of chemotherapy in August, after telling her oncologist about the earlier infection. The patient later developed acute colitis and underwent emergency colectomy. She has a permanent ileostomy, has had 14 additional operations, and continues to suffer complications of severe colitis.

PATIENT’S CLAIM The surgeon was at fault for prescribing antibiotics after mastectomy. The oncologist was negligent in failing to test for C difficile before starting chemotherapy. The antibiotics caused C difficile infection. Because her immune system was compromised by chemotherapy, C difficile caused colitis.

PHYSICIANS’ DEFENSE The surgeon’s defense was not reported. The oncologist claimed he was not negligent; he questioned whether the patient had C difficile infection at all.

VERDICT The surgeon settled for an undisclosed amount before trial. A $4.5 million Oklahoma verdict was returned against the oncologist.

Uterine rupture and placental abruption found at C-section

A WOMAN WAS IN ACTIVE LABOR at 41 weeks’ gestation when admitted to the hospital. After 9 hours of labor, cesarean delivery was performed because the fetal heart-rate tracing showed tachycardia, with potential fetal distress.

At delivery, it was discovered that the uterus had ruptured and the placenta had abrupted. The child was asphyxic and bradycardic at birth. She suffered brain damage that resulted in severe cognitive deficits and cerebral palsy. At 5 years, she is unable to speak, walk, sit up, or feed herself.

PATIENT’S CLAIM Although the fetal heart-rate tracing showed fetal distress, several hours passed before cesarean delivery was performed. Oxytocin should not have been administered during labor because the drug is contraindicated in the presence of an abnormal fetal heart rate.

DEFENDANTS’ DEFENSE Hospital physicians and staff reacted properly and in a timely manner when the heart-rate tracing showed fetal distress. Uterine rupture and placental abruption could not have been foreseen.

VERDICT A $5.8 million Texas settlement was reached.

Fibrocystic mass becomes cancerous

A WOMAN UNDERWENT regular annual breast exams because of fibrocystic breast disease. Her primary care physician noted a breast mass in 1997, and continued to follow the mass. A biopsy in 1999 revealed fibrosis. In January 2002, breast cancer was diagnosed in the same mass, and the woman underwent mastectomy.

PATIENT’S CLAIM The physician was negligent in failing to diagnose breast cancer earlier. She had classic signs of cancer, including a persistent mass with changing symptoms.

PHYSICIAN’S DEFENSE The mass had been closely monitored, so that when changes were noted in December 2001, a referral was made and cancer diagnosed.

VERDICT A Louisiana defense verdict was returned.

Was mother’s labor monitored properly?

DURING DELIVERY, a woman experienced vaginal bleeding without pain or contractions. The nurses did not consider the bleeding excessive and did not detect any urgency to her labor until several hours later. The baby did not survive, and it was determined the mother suffered from vasa previa. She had been given a diagnosis of placenta previa at 15 weeks, but a sonogram at 20 weeks showed resolution.

PATIENT’S CLAIM The mother’s condition should have been monitored more closely. Vaginal bleeding during labor and delivery should have been responded to more urgently, given the history of placenta previa.

DEFENDANTS’ DEFENSE The hospital and the nurses claimed that the woman was properly treated.

VERDICT An Alabama defense verdict was returned.

Heart attack and death after epidural

AT AGE 34, A WOMAN WENT to the hospital for cesarean delivery of her third child. Within minutes of receiving epidural anesthesia, she became agitated and complained of difficulty breathing. She went into cardiopulmonary arrest, and resuscitation efforts were unsuccessful. The child survived.

ESTATE’S CLAIM A total spinal block occurred; the anesthesiologist failed to recognize and treat it in a timely manner.

PHYSICIAN’S DEFENSE Medications were properly administered; a total spinal block had not occurred. The patient had a history of Hodgkin’s lymphoma with chemotherapy, and radiation treatment of the chest. Autopsy indicated the cause of death was Castleman’s disease, a rare lymphoproliferative disease, which had not been diagnosed during her life.

VERDICT A $800,000 Virginia verdict was returned.

Retained sponge causes obstruction

AFTER CESAREAN DELIVERY, the nurses reported a complete sponge count. Immediately after surgery, the mother reported lower-left quadrant pain that resolved, then recurred. Several complaints to her ObGyn were dismissed. After 2.5 months, the ObGyn referred the patient to her primary care physician. An abdominal CT scan revealed a retained surgical sponge, with bowel perforation. The ObGyn attempted surgery, but the sponge was partially adhered to bowel. Colorectal surgeons had to resect two sections of small intestine to remove the infected sponge and abscess. She continues to have medical problems and has been hospitalized for an obstruction.

PATIENT’S CLAIM The nurses were negligent in failing to correctly count the sponges. The ObGyn was negligent for leaving the sponge in the patient’s abdomen, and for not responding to her complaints by determining the cause of her pain.

DEFENDANTS’ DEFENSE The nurses admitted liability but contended that the ObGyn was also at fault under the captain-of-the-ship doctrine. The ObGyn denied negligence, arguing that it was the nurses’ responsibility to count the sponges and that he acted properly by referring the patient to her primary care physician.

VERDICT The Pennsylvania jury found the hospital and nurses negligent and awarded a $525,000 verdict. A defense verdict was returned for the ObGyn.

Hypoxic ischemic encephalopathy

A WOMAN WENT TO THE HOSPITAL in labor. Her ObGyn was consulted by telephone at 10:20 pm. At 5:40 am, a positive scalp stimulation test indicated the fetus was healthy. The nurse called the ObGyn, who was en route to the hospital. At 6:04 am, the fetal heart rate dropped to 60 bpm. The nurse again contacted the ObGyn, and then called in a midwife, who took no effective action to complete delivery.

At 6:16 am, the covering physician was summoned, but the ObGyn arrived and took charge. When he saw that the fetal heart rate was still 60 bpm, he performed a central episiotomy and delivered the infant at 6:23 am using vacuum extraction. The infant suffered perinatal depression with hypoxic ischemic encephalopathy and brain damage.

PATIENT’S CLAIM The injuries were caused by continued low fetal heart rate. The hospital nurse, midwife, and covering physician were negligent in not reacting to the low fetal heart rate by performing emergency cesarean delivery. The ObGyn was negligent for not coming to the hospital earlier.

DEFENDANTS’ DEFENSE The hospital staff acted properly. The ObGyn was in touch with the hospital staff and came when labor became active. When he saw that the fetal heart rate was low, he saved the child’s life.

VERDICT A $7 million settlement was reached with the hospital; a defense verdict was returned for the ObGyn.

Incontinence or ovarian cancer?

A WOMAN IN HER 50s saw a urologist in November 2004 because of urinary incontinence. The urologist prescribed medication. During the next 2 years, there were additional examinations and treatment, but incontinence continued. In January 2007, a diagnosis of ovarian cancer was made. She died after the suit was filed.

ESTATE’S CLAIM Ovarian cancer should have been diagnosed in November 2004. The cancer could have been treated, and the patient would have survived. Incontinence is a symptom of that type of ovarian cancer.

PHYSICIAN’S DEFENSE The tests in November 2004 indicated that the decedent’s incontinence was from muscle weakness. Cancer did not develop until late 2006.

VERDICT A New York defense verdict was returned.

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

Had C difficile cleared before chemotherapy?

THE DIAGNOSIS WAS BREAST CANCER for a 54-year-old woman. In May 2006, a surgeon performed a mastectomy and prescribed postoperative antibiotics.

In July, the patient became ill and was treated for Clostridium difficile infection. She began a course of chemotherapy in August, after telling her oncologist about the earlier infection. The patient later developed acute colitis and underwent emergency colectomy. She has a permanent ileostomy, has had 14 additional operations, and continues to suffer complications of severe colitis.

PATIENT’S CLAIM The surgeon was at fault for prescribing antibiotics after mastectomy. The oncologist was negligent in failing to test for C difficile before starting chemotherapy. The antibiotics caused C difficile infection. Because her immune system was compromised by chemotherapy, C difficile caused colitis.

PHYSICIANS’ DEFENSE The surgeon’s defense was not reported. The oncologist claimed he was not negligent; he questioned whether the patient had C difficile infection at all.

VERDICT The surgeon settled for an undisclosed amount before trial. A $4.5 million Oklahoma verdict was returned against the oncologist.

Uterine rupture and placental abruption found at C-section

A WOMAN WAS IN ACTIVE LABOR at 41 weeks’ gestation when admitted to the hospital. After 9 hours of labor, cesarean delivery was performed because the fetal heart-rate tracing showed tachycardia, with potential fetal distress.

At delivery, it was discovered that the uterus had ruptured and the placenta had abrupted. The child was asphyxic and bradycardic at birth. She suffered brain damage that resulted in severe cognitive deficits and cerebral palsy. At 5 years, she is unable to speak, walk, sit up, or feed herself.

PATIENT’S CLAIM Although the fetal heart-rate tracing showed fetal distress, several hours passed before cesarean delivery was performed. Oxytocin should not have been administered during labor because the drug is contraindicated in the presence of an abnormal fetal heart rate.

DEFENDANTS’ DEFENSE Hospital physicians and staff reacted properly and in a timely manner when the heart-rate tracing showed fetal distress. Uterine rupture and placental abruption could not have been foreseen.

VERDICT A $5.8 million Texas settlement was reached.

Fibrocystic mass becomes cancerous

A WOMAN UNDERWENT regular annual breast exams because of fibrocystic breast disease. Her primary care physician noted a breast mass in 1997, and continued to follow the mass. A biopsy in 1999 revealed fibrosis. In January 2002, breast cancer was diagnosed in the same mass, and the woman underwent mastectomy.

PATIENT’S CLAIM The physician was negligent in failing to diagnose breast cancer earlier. She had classic signs of cancer, including a persistent mass with changing symptoms.

PHYSICIAN’S DEFENSE The mass had been closely monitored, so that when changes were noted in December 2001, a referral was made and cancer diagnosed.

VERDICT A Louisiana defense verdict was returned.

Was mother’s labor monitored properly?

DURING DELIVERY, a woman experienced vaginal bleeding without pain or contractions. The nurses did not consider the bleeding excessive and did not detect any urgency to her labor until several hours later. The baby did not survive, and it was determined the mother suffered from vasa previa. She had been given a diagnosis of placenta previa at 15 weeks, but a sonogram at 20 weeks showed resolution.

PATIENT’S CLAIM The mother’s condition should have been monitored more closely. Vaginal bleeding during labor and delivery should have been responded to more urgently, given the history of placenta previa.

DEFENDANTS’ DEFENSE The hospital and the nurses claimed that the woman was properly treated.

VERDICT An Alabama defense verdict was returned.

Heart attack and death after epidural

AT AGE 34, A WOMAN WENT to the hospital for cesarean delivery of her third child. Within minutes of receiving epidural anesthesia, she became agitated and complained of difficulty breathing. She went into cardiopulmonary arrest, and resuscitation efforts were unsuccessful. The child survived.

ESTATE’S CLAIM A total spinal block occurred; the anesthesiologist failed to recognize and treat it in a timely manner.

PHYSICIAN’S DEFENSE Medications were properly administered; a total spinal block had not occurred. The patient had a history of Hodgkin’s lymphoma with chemotherapy, and radiation treatment of the chest. Autopsy indicated the cause of death was Castleman’s disease, a rare lymphoproliferative disease, which had not been diagnosed during her life.

VERDICT A $800,000 Virginia verdict was returned.

Retained sponge causes obstruction

AFTER CESAREAN DELIVERY, the nurses reported a complete sponge count. Immediately after surgery, the mother reported lower-left quadrant pain that resolved, then recurred. Several complaints to her ObGyn were dismissed. After 2.5 months, the ObGyn referred the patient to her primary care physician. An abdominal CT scan revealed a retained surgical sponge, with bowel perforation. The ObGyn attempted surgery, but the sponge was partially adhered to bowel. Colorectal surgeons had to resect two sections of small intestine to remove the infected sponge and abscess. She continues to have medical problems and has been hospitalized for an obstruction.

PATIENT’S CLAIM The nurses were negligent in failing to correctly count the sponges. The ObGyn was negligent for leaving the sponge in the patient’s abdomen, and for not responding to her complaints by determining the cause of her pain.

DEFENDANTS’ DEFENSE The nurses admitted liability but contended that the ObGyn was also at fault under the captain-of-the-ship doctrine. The ObGyn denied negligence, arguing that it was the nurses’ responsibility to count the sponges and that he acted properly by referring the patient to her primary care physician.

VERDICT The Pennsylvania jury found the hospital and nurses negligent and awarded a $525,000 verdict. A defense verdict was returned for the ObGyn.

Hypoxic ischemic encephalopathy

A WOMAN WENT TO THE HOSPITAL in labor. Her ObGyn was consulted by telephone at 10:20 pm. At 5:40 am, a positive scalp stimulation test indicated the fetus was healthy. The nurse called the ObGyn, who was en route to the hospital. At 6:04 am, the fetal heart rate dropped to 60 bpm. The nurse again contacted the ObGyn, and then called in a midwife, who took no effective action to complete delivery.

At 6:16 am, the covering physician was summoned, but the ObGyn arrived and took charge. When he saw that the fetal heart rate was still 60 bpm, he performed a central episiotomy and delivered the infant at 6:23 am using vacuum extraction. The infant suffered perinatal depression with hypoxic ischemic encephalopathy and brain damage.

PATIENT’S CLAIM The injuries were caused by continued low fetal heart rate. The hospital nurse, midwife, and covering physician were negligent in not reacting to the low fetal heart rate by performing emergency cesarean delivery. The ObGyn was negligent for not coming to the hospital earlier.

DEFENDANTS’ DEFENSE The hospital staff acted properly. The ObGyn was in touch with the hospital staff and came when labor became active. When he saw that the fetal heart rate was low, he saved the child’s life.

VERDICT A $7 million settlement was reached with the hospital; a defense verdict was returned for the ObGyn.

Incontinence or ovarian cancer?

A WOMAN IN HER 50s saw a urologist in November 2004 because of urinary incontinence. The urologist prescribed medication. During the next 2 years, there were additional examinations and treatment, but incontinence continued. In January 2007, a diagnosis of ovarian cancer was made. She died after the suit was filed.

ESTATE’S CLAIM Ovarian cancer should have been diagnosed in November 2004. The cancer could have been treated, and the patient would have survived. Incontinence is a symptom of that type of ovarian cancer.

PHYSICIAN’S DEFENSE The tests in November 2004 indicated that the decedent’s incontinence was from muscle weakness. Cancer did not develop until late 2006.

VERDICT A New York defense verdict was returned.

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

Had C difficile cleared before chemotherapy?

THE DIAGNOSIS WAS BREAST CANCER for a 54-year-old woman. In May 2006, a surgeon performed a mastectomy and prescribed postoperative antibiotics.

In July, the patient became ill and was treated for Clostridium difficile infection. She began a course of chemotherapy in August, after telling her oncologist about the earlier infection. The patient later developed acute colitis and underwent emergency colectomy. She has a permanent ileostomy, has had 14 additional operations, and continues to suffer complications of severe colitis.

PATIENT’S CLAIM The surgeon was at fault for prescribing antibiotics after mastectomy. The oncologist was negligent in failing to test for C difficile before starting chemotherapy. The antibiotics caused C difficile infection. Because her immune system was compromised by chemotherapy, C difficile caused colitis.

PHYSICIANS’ DEFENSE The surgeon’s defense was not reported. The oncologist claimed he was not negligent; he questioned whether the patient had C difficile infection at all.

VERDICT The surgeon settled for an undisclosed amount before trial. A $4.5 million Oklahoma verdict was returned against the oncologist.

Uterine rupture and placental abruption found at C-section

A WOMAN WAS IN ACTIVE LABOR at 41 weeks’ gestation when admitted to the hospital. After 9 hours of labor, cesarean delivery was performed because the fetal heart-rate tracing showed tachycardia, with potential fetal distress.

At delivery, it was discovered that the uterus had ruptured and the placenta had abrupted. The child was asphyxic and bradycardic at birth. She suffered brain damage that resulted in severe cognitive deficits and cerebral palsy. At 5 years, she is unable to speak, walk, sit up, or feed herself.

PATIENT’S CLAIM Although the fetal heart-rate tracing showed fetal distress, several hours passed before cesarean delivery was performed. Oxytocin should not have been administered during labor because the drug is contraindicated in the presence of an abnormal fetal heart rate.

DEFENDANTS’ DEFENSE Hospital physicians and staff reacted properly and in a timely manner when the heart-rate tracing showed fetal distress. Uterine rupture and placental abruption could not have been foreseen.

VERDICT A $5.8 million Texas settlement was reached.

Fibrocystic mass becomes cancerous

A WOMAN UNDERWENT regular annual breast exams because of fibrocystic breast disease. Her primary care physician noted a breast mass in 1997, and continued to follow the mass. A biopsy in 1999 revealed fibrosis. In January 2002, breast cancer was diagnosed in the same mass, and the woman underwent mastectomy.

PATIENT’S CLAIM The physician was negligent in failing to diagnose breast cancer earlier. She had classic signs of cancer, including a persistent mass with changing symptoms.

PHYSICIAN’S DEFENSE The mass had been closely monitored, so that when changes were noted in December 2001, a referral was made and cancer diagnosed.

VERDICT A Louisiana defense verdict was returned.

Was mother’s labor monitored properly?

DURING DELIVERY, a woman experienced vaginal bleeding without pain or contractions. The nurses did not consider the bleeding excessive and did not detect any urgency to her labor until several hours later. The baby did not survive, and it was determined the mother suffered from vasa previa. She had been given a diagnosis of placenta previa at 15 weeks, but a sonogram at 20 weeks showed resolution.

PATIENT’S CLAIM The mother’s condition should have been monitored more closely. Vaginal bleeding during labor and delivery should have been responded to more urgently, given the history of placenta previa.

DEFENDANTS’ DEFENSE The hospital and the nurses claimed that the woman was properly treated.

VERDICT An Alabama defense verdict was returned.

Heart attack and death after epidural

AT AGE 34, A WOMAN WENT to the hospital for cesarean delivery of her third child. Within minutes of receiving epidural anesthesia, she became agitated and complained of difficulty breathing. She went into cardiopulmonary arrest, and resuscitation efforts were unsuccessful. The child survived.

ESTATE’S CLAIM A total spinal block occurred; the anesthesiologist failed to recognize and treat it in a timely manner.

PHYSICIAN’S DEFENSE Medications were properly administered; a total spinal block had not occurred. The patient had a history of Hodgkin’s lymphoma with chemotherapy, and radiation treatment of the chest. Autopsy indicated the cause of death was Castleman’s disease, a rare lymphoproliferative disease, which had not been diagnosed during her life.

VERDICT A $800,000 Virginia verdict was returned.

Retained sponge causes obstruction

AFTER CESAREAN DELIVERY, the nurses reported a complete sponge count. Immediately after surgery, the mother reported lower-left quadrant pain that resolved, then recurred. Several complaints to her ObGyn were dismissed. After 2.5 months, the ObGyn referred the patient to her primary care physician. An abdominal CT scan revealed a retained surgical sponge, with bowel perforation. The ObGyn attempted surgery, but the sponge was partially adhered to bowel. Colorectal surgeons had to resect two sections of small intestine to remove the infected sponge and abscess. She continues to have medical problems and has been hospitalized for an obstruction.

PATIENT’S CLAIM The nurses were negligent in failing to correctly count the sponges. The ObGyn was negligent for leaving the sponge in the patient’s abdomen, and for not responding to her complaints by determining the cause of her pain.

DEFENDANTS’ DEFENSE The nurses admitted liability but contended that the ObGyn was also at fault under the captain-of-the-ship doctrine. The ObGyn denied negligence, arguing that it was the nurses’ responsibility to count the sponges and that he acted properly by referring the patient to her primary care physician.

VERDICT The Pennsylvania jury found the hospital and nurses negligent and awarded a $525,000 verdict. A defense verdict was returned for the ObGyn.

Hypoxic ischemic encephalopathy

A WOMAN WENT TO THE HOSPITAL in labor. Her ObGyn was consulted by telephone at 10:20 pm. At 5:40 am, a positive scalp stimulation test indicated the fetus was healthy. The nurse called the ObGyn, who was en route to the hospital. At 6:04 am, the fetal heart rate dropped to 60 bpm. The nurse again contacted the ObGyn, and then called in a midwife, who took no effective action to complete delivery.

At 6:16 am, the covering physician was summoned, but the ObGyn arrived and took charge. When he saw that the fetal heart rate was still 60 bpm, he performed a central episiotomy and delivered the infant at 6:23 am using vacuum extraction. The infant suffered perinatal depression with hypoxic ischemic encephalopathy and brain damage.

PATIENT’S CLAIM The injuries were caused by continued low fetal heart rate. The hospital nurse, midwife, and covering physician were negligent in not reacting to the low fetal heart rate by performing emergency cesarean delivery. The ObGyn was negligent for not coming to the hospital earlier.

DEFENDANTS’ DEFENSE The hospital staff acted properly. The ObGyn was in touch with the hospital staff and came when labor became active. When he saw that the fetal heart rate was low, he saved the child’s life.

VERDICT A $7 million settlement was reached with the hospital; a defense verdict was returned for the ObGyn.

Incontinence or ovarian cancer?

A WOMAN IN HER 50s saw a urologist in November 2004 because of urinary incontinence. The urologist prescribed medication. During the next 2 years, there were additional examinations and treatment, but incontinence continued. In January 2007, a diagnosis of ovarian cancer was made. She died after the suit was filed.

ESTATE’S CLAIM Ovarian cancer should have been diagnosed in November 2004. The cancer could have been treated, and the patient would have survived. Incontinence is a symptom of that type of ovarian cancer.

PHYSICIAN’S DEFENSE The tests in November 2004 indicated that the decedent’s incontinence was from muscle weakness. Cancer did not develop until late 2006.

VERDICT A New York defense verdict was returned.

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

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A pregnant woman received prenatal care from nurse-midwives and family practice physicians at a federally funded community health center in Wisconsin. On the day of delivery, according to the patient, the nurse-midwives covering deliveries failed to come to the hospital to evaluate her.

A nurse-midwife arrived about 40 minutes before the woman’s delivery and had difficulty delivering the infant because of shoulder dystocia. A second nurse-midwife arrived and performed maneuvers to facilitate delivery. The infant sustained severe brain damage.

At a trial conducted on the issue of damages only, the plaintiff claimed her pregnancy was high risk due to her previous history of delivering two large infants, her advanced age, and symptoms of gestational diabetes. The plaintiff maintained that she should have been given a referral to an obstetrician/gynecologist and/or a perinatologist.

Continue for the outcome and David Lang's comments >>

OUTCOME
The judge awarded about $20 million to the plaintiff. According to a published report, a posttrial settlement of $18.2 million was reached.

COMMENT
We are not told any specifics regarding the patient’s age or prior deliveries or her specific prenatal screening to determine whether the fetus was large for gestational age—and if so, to what degree; or the birth weight, or maternal factors that may have been suggestive of cephalopelvic disproportion. We are also not told about the fetal presentation or given results of fetal heart monitoring.

Fetal macrosomia (an estimated fetal weight of ≥ 4,500 g) has been correlated with shoulder dystocia, as has gestational diabetes. If there was evidence of malpresentation combined with macrosomia and/or small pelvic outlet, it is likely that the standard of care would have required a cesarean delivery to avoid an unreasonable risk to the mother and fetus.

While shoulder dystocia can be unexpected and unavoidable, the clinician must have a plan to address it—and be well versed in the plan. This should include immediately recognizing the condition as an emergency, summoning help, and initiating appropriate maneuvers. Practice drills can help clinicians rehearse the plan before an emergency arises.

In this case, liability was not contested—which is tantamount to an admission of liability. The plaintiff likely had overwhelming evidence that the history of gestational diabetes and maternal screening made vaginal delivery unreasonably risky in this specific case. In short, ­obstetrical/midwifery practice carries an inherent high risk for litigation: Screen adequately for likely complications, consider the appropriate use of cesarean delivery for high-risk patients, know your positions and maneuvers, and maintain a plan for performing them. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A pregnant woman received prenatal care from nurse-midwives and family practice physicians at a federally funded community health center in Wisconsin. On the day of delivery, according to the patient, the nurse-midwives covering deliveries failed to come to the hospital to evaluate her.

A nurse-midwife arrived about 40 minutes before the woman’s delivery and had difficulty delivering the infant because of shoulder dystocia. A second nurse-midwife arrived and performed maneuvers to facilitate delivery. The infant sustained severe brain damage.

At a trial conducted on the issue of damages only, the plaintiff claimed her pregnancy was high risk due to her previous history of delivering two large infants, her advanced age, and symptoms of gestational diabetes. The plaintiff maintained that she should have been given a referral to an obstetrician/gynecologist and/or a perinatologist.

Continue for the outcome and David Lang's comments >>

OUTCOME
The judge awarded about $20 million to the plaintiff. According to a published report, a posttrial settlement of $18.2 million was reached.

COMMENT
We are not told any specifics regarding the patient’s age or prior deliveries or her specific prenatal screening to determine whether the fetus was large for gestational age—and if so, to what degree; or the birth weight, or maternal factors that may have been suggestive of cephalopelvic disproportion. We are also not told about the fetal presentation or given results of fetal heart monitoring.

Fetal macrosomia (an estimated fetal weight of ≥ 4,500 g) has been correlated with shoulder dystocia, as has gestational diabetes. If there was evidence of malpresentation combined with macrosomia and/or small pelvic outlet, it is likely that the standard of care would have required a cesarean delivery to avoid an unreasonable risk to the mother and fetus.

While shoulder dystocia can be unexpected and unavoidable, the clinician must have a plan to address it—and be well versed in the plan. This should include immediately recognizing the condition as an emergency, summoning help, and initiating appropriate maneuvers. Practice drills can help clinicians rehearse the plan before an emergency arises.

In this case, liability was not contested—which is tantamount to an admission of liability. The plaintiff likely had overwhelming evidence that the history of gestational diabetes and maternal screening made vaginal delivery unreasonably risky in this specific case. In short, ­obstetrical/midwifery practice carries an inherent high risk for litigation: Screen adequately for likely complications, consider the appropriate use of cesarean delivery for high-risk patients, know your positions and maneuvers, and maintain a plan for performing them. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

A pregnant woman received prenatal care from nurse-midwives and family practice physicians at a federally funded community health center in Wisconsin. On the day of delivery, according to the patient, the nurse-midwives covering deliveries failed to come to the hospital to evaluate her.

A nurse-midwife arrived about 40 minutes before the woman’s delivery and had difficulty delivering the infant because of shoulder dystocia. A second nurse-midwife arrived and performed maneuvers to facilitate delivery. The infant sustained severe brain damage.

At a trial conducted on the issue of damages only, the plaintiff claimed her pregnancy was high risk due to her previous history of delivering two large infants, her advanced age, and symptoms of gestational diabetes. The plaintiff maintained that she should have been given a referral to an obstetrician/gynecologist and/or a perinatologist.

Continue for the outcome and David Lang's comments >>

OUTCOME
The judge awarded about $20 million to the plaintiff. According to a published report, a posttrial settlement of $18.2 million was reached.

COMMENT
We are not told any specifics regarding the patient’s age or prior deliveries or her specific prenatal screening to determine whether the fetus was large for gestational age—and if so, to what degree; or the birth weight, or maternal factors that may have been suggestive of cephalopelvic disproportion. We are also not told about the fetal presentation or given results of fetal heart monitoring.

Fetal macrosomia (an estimated fetal weight of ≥ 4,500 g) has been correlated with shoulder dystocia, as has gestational diabetes. If there was evidence of malpresentation combined with macrosomia and/or small pelvic outlet, it is likely that the standard of care would have required a cesarean delivery to avoid an unreasonable risk to the mother and fetus.

While shoulder dystocia can be unexpected and unavoidable, the clinician must have a plan to address it—and be well versed in the plan. This should include immediately recognizing the condition as an emergency, summoning help, and initiating appropriate maneuvers. Practice drills can help clinicians rehearse the plan before an emergency arises.

In this case, liability was not contested—which is tantamount to an admission of liability. The plaintiff likely had overwhelming evidence that the history of gestational diabetes and maternal screening made vaginal delivery unreasonably risky in this specific case. In short, ­obstetrical/midwifery practice carries an inherent high risk for litigation: Screen adequately for likely complications, consider the appropriate use of cesarean delivery for high-risk patients, know your positions and maneuvers, and maintain a plan for performing them. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

In Massachusetts in December 2002, a 42-year-old woman presented to the defendant primary care physician and reported that she had been in a motor vehicle accident almost a month earlier while wearing a seat belt. The patient said she had noticed some redness in her left breast, then discovered a mass in the upper left breast. The physician confirmed the presence of a mass in the patient’s left breast, noting that the location did not correspond to the expected location for breast trauma sustained in an automobile accident.

Mammography was performed the following day. A visible 4-cm mass, which corresponded to the palpable finding in the left breast, was noted. Ultrasound showed a corresponding area of abnormality. The radiologist recommended follow-up in one month. According to the radiologist’s notes, mammography had been performed, but the films were not available. He also noted that if the films became available, he would issue an addendum.

A follow-up ultrasound performed in January 2003 indicated that the lesion had increased in size. The radiologist noted that the lesion could represent a hematoma but recommended aspiration or biopsy. He noted that if no further action was taken for diagnosis, a follow-up ultrasound should be performed in one month; he also recommended careful clinical correlation and close follow-up.

An addendum to the mammogram report was issued four days after the follow-up ultrasound. That report noted a review of studies performed two years earlier along with the studies from December 2002 and January 2003. The radiologist wrote, “Aside from the previously described mass, a probable hematoma, there is no significant change.”

At the defendant primary care physician’s request, the patient was seen by the defendant surgeon. The surgeon felt that the affected area might have been injured by the seat belt shoulder strap during the accident and concluded that the mammogram and follow-up studies suggested a hematoma. The surgeon attempted to aspirate the mass without success. The patient was advised to apply moist heat three times a day and to undergo a repeat mammogram in six months, which the surgeon scheduled.

The surgeon wrote a letter to the primary care physician, in which he failed to mention the radiologist’s impression that the mass was enlarging; neither did he include the radiologist’s recommendations for aspiration or biopsy or repeat ultrasound in one month. The surgeon made no further recommendations to the patient.

In late July 2003, the patient was scheduled for repeat imaging studies, which showed that the mass had continued to enlarge. Biopsy revealed poorly differentiated invasive ductal carcinoma, and metastatic disease was also found. The patient underwent preoperative radiotherapy, mastectomy, and chemotherapy. She died two years later at age 46.

Continue for the outcome >> 

OUTCOME
A $4.75 million settlement was reached.

COMMENT
Of the many dangers confronting diagnosticians, few are as problematic as an incidental fact that drives the workup in the wrong direction. Here, the presentation could be “breast mass and redness post–motor vehicle accident” (MVA) or simply a “breast mass.” The diagnosis may differ dramatically based on how much weight is accorded to certain facts—in this case, the patient’s nearly one-month-old car accident.

Here, we are not told the specifics of the imaging or whether the patient’s breast was tender. The primary care physician may have believed that the redness and mass were caused by the seat belt, but he was sufficiently concerned to order a mammogram, breast ultrasound, and surgical consultation.

By contrast, the surgeon accorded significant weight to the MVA in making his diagnosis. At first, a hematoma seemed plausible; however, there were clues that the mass might not be trauma-related: the initial near-month delay between trauma and presentation, the unexpected disconnect between the location of the mass and the erythema, and arguably, the negative aspiration. The primary care physician picked up on some of these clues and initially responded fairly aggressively, seeking two studies and a surgical consultation. Unfortunately, the consulting surgeon conclusively believed the mass to be a hematoma, and the referring physician, after receiving the surgeon’s comforting report, did not order the second follow-up ultrasound recommended by the radiologist.

Absent the history of the patient’s MVA, the surgeon likely would have insisted on a biopsy or fine-needle aspiration, and the outcome might have been different. We have all heard (and perhaps handed down to students) rules of diagnostic roundsmanship, including “Common things happen commonly,” and have been admonished, “Correlation is not causation.” Keep these admonitions in mind, and don’t be thrown off by what may be an incidental fact in the presentation. Don’t let the next cardiac ischemia masquerade as “pulled muscle from painting yesterday”; don’t let your next ectopic pregnancy slip by as a “bad burrito.” Give antecedent facts their due, but no more.

In sum: First, be prepared to discount what could be an incidental fact; it may save a patient’s life. Second, even after consultation, don’t jettison your initial clinical impression if you remain justifiably concerned. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

In Massachusetts in December 2002, a 42-year-old woman presented to the defendant primary care physician and reported that she had been in a motor vehicle accident almost a month earlier while wearing a seat belt. The patient said she had noticed some redness in her left breast, then discovered a mass in the upper left breast. The physician confirmed the presence of a mass in the patient’s left breast, noting that the location did not correspond to the expected location for breast trauma sustained in an automobile accident.

Mammography was performed the following day. A visible 4-cm mass, which corresponded to the palpable finding in the left breast, was noted. Ultrasound showed a corresponding area of abnormality. The radiologist recommended follow-up in one month. According to the radiologist’s notes, mammography had been performed, but the films were not available. He also noted that if the films became available, he would issue an addendum.

A follow-up ultrasound performed in January 2003 indicated that the lesion had increased in size. The radiologist noted that the lesion could represent a hematoma but recommended aspiration or biopsy. He noted that if no further action was taken for diagnosis, a follow-up ultrasound should be performed in one month; he also recommended careful clinical correlation and close follow-up.

An addendum to the mammogram report was issued four days after the follow-up ultrasound. That report noted a review of studies performed two years earlier along with the studies from December 2002 and January 2003. The radiologist wrote, “Aside from the previously described mass, a probable hematoma, there is no significant change.”

At the defendant primary care physician’s request, the patient was seen by the defendant surgeon. The surgeon felt that the affected area might have been injured by the seat belt shoulder strap during the accident and concluded that the mammogram and follow-up studies suggested a hematoma. The surgeon attempted to aspirate the mass without success. The patient was advised to apply moist heat three times a day and to undergo a repeat mammogram in six months, which the surgeon scheduled.

The surgeon wrote a letter to the primary care physician, in which he failed to mention the radiologist’s impression that the mass was enlarging; neither did he include the radiologist’s recommendations for aspiration or biopsy or repeat ultrasound in one month. The surgeon made no further recommendations to the patient.

In late July 2003, the patient was scheduled for repeat imaging studies, which showed that the mass had continued to enlarge. Biopsy revealed poorly differentiated invasive ductal carcinoma, and metastatic disease was also found. The patient underwent preoperative radiotherapy, mastectomy, and chemotherapy. She died two years later at age 46.

Continue for the outcome >> 

OUTCOME
A $4.75 million settlement was reached.

COMMENT
Of the many dangers confronting diagnosticians, few are as problematic as an incidental fact that drives the workup in the wrong direction. Here, the presentation could be “breast mass and redness post–motor vehicle accident” (MVA) or simply a “breast mass.” The diagnosis may differ dramatically based on how much weight is accorded to certain facts—in this case, the patient’s nearly one-month-old car accident.

Here, we are not told the specifics of the imaging or whether the patient’s breast was tender. The primary care physician may have believed that the redness and mass were caused by the seat belt, but he was sufficiently concerned to order a mammogram, breast ultrasound, and surgical consultation.

By contrast, the surgeon accorded significant weight to the MVA in making his diagnosis. At first, a hematoma seemed plausible; however, there were clues that the mass might not be trauma-related: the initial near-month delay between trauma and presentation, the unexpected disconnect between the location of the mass and the erythema, and arguably, the negative aspiration. The primary care physician picked up on some of these clues and initially responded fairly aggressively, seeking two studies and a surgical consultation. Unfortunately, the consulting surgeon conclusively believed the mass to be a hematoma, and the referring physician, after receiving the surgeon’s comforting report, did not order the second follow-up ultrasound recommended by the radiologist.

Absent the history of the patient’s MVA, the surgeon likely would have insisted on a biopsy or fine-needle aspiration, and the outcome might have been different. We have all heard (and perhaps handed down to students) rules of diagnostic roundsmanship, including “Common things happen commonly,” and have been admonished, “Correlation is not causation.” Keep these admonitions in mind, and don’t be thrown off by what may be an incidental fact in the presentation. Don’t let the next cardiac ischemia masquerade as “pulled muscle from painting yesterday”; don’t let your next ectopic pregnancy slip by as a “bad burrito.” Give antecedent facts their due, but no more.

In sum: First, be prepared to discount what could be an incidental fact; it may save a patient’s life. Second, even after consultation, don’t jettison your initial clinical impression if you remain justifiably concerned. —DML

Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

In Massachusetts in December 2002, a 42-year-old woman presented to the defendant primary care physician and reported that she had been in a motor vehicle accident almost a month earlier while wearing a seat belt. The patient said she had noticed some redness in her left breast, then discovered a mass in the upper left breast. The physician confirmed the presence of a mass in the patient’s left breast, noting that the location did not correspond to the expected location for breast trauma sustained in an automobile accident.

Mammography was performed the following day. A visible 4-cm mass, which corresponded to the palpable finding in the left breast, was noted. Ultrasound showed a corresponding area of abnormality. The radiologist recommended follow-up in one month. According to the radiologist’s notes, mammography had been performed, but the films were not available. He also noted that if the films became available, he would issue an addendum.

A follow-up ultrasound performed in January 2003 indicated that the lesion had increased in size. The radiologist noted that the lesion could represent a hematoma but recommended aspiration or biopsy. He noted that if no further action was taken for diagnosis, a follow-up ultrasound should be performed in one month; he also recommended careful clinical correlation and close follow-up.

An addendum to the mammogram report was issued four days after the follow-up ultrasound. That report noted a review of studies performed two years earlier along with the studies from December 2002 and January 2003. The radiologist wrote, “Aside from the previously described mass, a probable hematoma, there is no significant change.”

At the defendant primary care physician’s request, the patient was seen by the defendant surgeon. The surgeon felt that the affected area might have been injured by the seat belt shoulder strap during the accident and concluded that the mammogram and follow-up studies suggested a hematoma. The surgeon attempted to aspirate the mass without success. The patient was advised to apply moist heat three times a day and to undergo a repeat mammogram in six months, which the surgeon scheduled.

The surgeon wrote a letter to the primary care physician, in which he failed to mention the radiologist’s impression that the mass was enlarging; neither did he include the radiologist’s recommendations for aspiration or biopsy or repeat ultrasound in one month. The surgeon made no further recommendations to the patient.

In late July 2003, the patient was scheduled for repeat imaging studies, which showed that the mass had continued to enlarge. Biopsy revealed poorly differentiated invasive ductal carcinoma, and metastatic disease was also found. The patient underwent preoperative radiotherapy, mastectomy, and chemotherapy. She died two years later at age 46.

Continue for the outcome >> 

OUTCOME
A $4.75 million settlement was reached.

COMMENT
Of the many dangers confronting diagnosticians, few are as problematic as an incidental fact that drives the workup in the wrong direction. Here, the presentation could be “breast mass and redness post–motor vehicle accident” (MVA) or simply a “breast mass.” The diagnosis may differ dramatically based on how much weight is accorded to certain facts—in this case, the patient’s nearly one-month-old car accident.

Here, we are not told the specifics of the imaging or whether the patient’s breast was tender. The primary care physician may have believed that the redness and mass were caused by the seat belt, but he was sufficiently concerned to order a mammogram, breast ultrasound, and surgical consultation.

By contrast, the surgeon accorded significant weight to the MVA in making his diagnosis. At first, a hematoma seemed plausible; however, there were clues that the mass might not be trauma-related: the initial near-month delay between trauma and presentation, the unexpected disconnect between the location of the mass and the erythema, and arguably, the negative aspiration. The primary care physician picked up on some of these clues and initially responded fairly aggressively, seeking two studies and a surgical consultation. Unfortunately, the consulting surgeon conclusively believed the mass to be a hematoma, and the referring physician, after receiving the surgeon’s comforting report, did not order the second follow-up ultrasound recommended by the radiologist.

Absent the history of the patient’s MVA, the surgeon likely would have insisted on a biopsy or fine-needle aspiration, and the outcome might have been different. We have all heard (and perhaps handed down to students) rules of diagnostic roundsmanship, including “Common things happen commonly,” and have been admonished, “Correlation is not causation.” Keep these admonitions in mind, and don’t be thrown off by what may be an incidental fact in the presentation. Don’t let the next cardiac ischemia masquerade as “pulled muscle from painting yesterday”; don’t let your next ectopic pregnancy slip by as a “bad burrito.” Give antecedent facts their due, but no more.

In sum: First, be prepared to discount what could be an incidental fact; it may save a patient’s life. Second, even after consultation, don’t jettison your initial clinical impression if you remain justifiably concerned. —DML

Gravida in septic shock; were signs missed?

WITH SEVERE ABDOMINAL PAIN AND VOMITING at 14 weeks’ gestation, a 30-year-old woman was brought by ambulance to the hospital. After initial evaluation did not reveal a cause of her symptoms, she was transferred to the antepartum unit for observation.

The mother developed hypotension and a diagnosis of septic shock was made. Fetal cardiac activity ceased and the woman developed intestinal ischemia. She underwent an intestinal transplant several months later.

PATIENT’S CLAIM Both treating physicians and the nursing staff failed to react to her intermittently low blood pressure, and failed to diagnose or treat septic shock in a timely manner.

DEFENDANTS’ DEFENSE The patient was properly monitored and treated.

VERDICT A $11,500,000 Illinois verdict was returned against the hospital. A defense verdict was returned for both physicians.

Lethal outcome of ovarian cystectomy

A WOMAN IN HER 40s underwent ovarian cystectomy. During surgery, her gynecologist encountered dense adhesions that required bowel dissection. Later, the woman complained of severe abdominal pain, despite taking pain medication. A second gynecologist ordered an abdominal scan that showed fluid and possible bowel obstruction. Hospital staff ruled out pulmonary embolism. When her blood pressure dropped to dangerous levels, a surgeon recommended surgery. Preoperative testing found punctures in both large and small intestines. Before she could be given anesthesia, the woman suffered cardiac arrest, and was placed on a ventilator. The family asked that the ventilator be removed after three days, and she died.

ESTATE’S CLAIM The hospital staff and gynecologists were negligent in not ruling out bowel perforation as soon as the woman complained of severe abdominal pain after surgery.

DEFENDANTS’ DEFENSE Bowel perforation is a known complication of the surgery. There was no negligence; it was a complicated problem and the staff had progressively attempted to rule out various postsurgical issues.

VERDICT A $2.5 million Illinois settlement was reached.

Mother’s herpes infection transmitted in childbirth

A BABY BECAME ILL WITHIN 3 DAYS of birth and died several weeks later from a herpes virus infection. The mother had complained of burning pain during the office visits prior to delivery, and during labor and delivery.

PATIENT’S CLAIM Additional testing should have been performed when the mother complained of symptoms prior to birth. The child contracted the herpes virus during vaginal delivery; proper and timely diagnosis would have resulted in a cesarean delivery. The mother denied having sexual partners during her pregnancy.

PHYSICIAN’S DEFENSE Negative results of a Herpes Select Test 6 months before birth made follow-up testing unnecessary. She must have contracted the disease after testing had been performed. She had no symptoms that made the viral disease diagnosable at delivery. The child’s symptoms suggested transplacental transmission of herpes; a cesarean delivery would not have changed the outcome.

VERDICT A Nevada defense verdict was returned.

Home birth emergency

DURING A HOME BIRTH managed by a midwife, the baby was born after the mother pushed for 2 hours and 47 minutes. The child suffered brain damage.

PATIENT’S CLAIM The midwife was negligent in failing to send the mother to the nearest hospital after she had been pushing for 2 hours. The dangers associated with the lack of fetal heart rate monitoring had never been explained to them.

DEFENDANT’S DEFENSE The parents agreed to a home birth without use of fetal heart rate monitoring. They signed a detailed consent form, which advised them that emergencies could occur during delivery, and that the level and type of care would be less than at a hospital.

VERDICT A $1.9 million New Jersey settlement was reached.

APAS causes heart attack; fetal demise

7 MONTHS INTO HER FIRST PREGNANCY, a woman in her 20s suffered intrauterine fetal demise. A perinatologist determined that the mother has antiphospholipid syndrome (APAS), an immune system disorder that can cause excessive blood clotting, premature miscarriage, and heart attack. Although the perinatologist and Dr. A, the woman’s Family Practitioner (FP), received the report, neither told the woman.

When 6-weeks’ pregnant with a second child, the woman awoke with severe, crushing chest pain. Dr. B saw her in the emergency department, but did not order an ECG or cardiac enzyme blood test. After 7.5 hours, Dr. B diagnosed morning sickness or indigestion, or both, and was ready to discharge her. However, the woman, still in intense pain, expressed concern for her fetus. Dr. B sent her to another hospital 2 hours away.

Upon arrival, her chest pain had diminished but she reported radiating back and neck pain. Although the hospital’s protocol required ECG within 10 minutes of presentation with chest pain, no ECG was performed. A diagnosis of “gall bladder problems” was made.

Eighteen hours later, she was sent to a university hospital, where an ECG revealed that she had been experiencing a clot-induced heart attack for 44 hours. Approximately 40% of her heart muscle was damaged, and she was counseled to not continue the pregnancy because of cardiac dysfunction.

PATIENT’S CLAIM The perinatologist and Dr. A were negligent in not telling her that she has APAS. With that information, she could have taken medication to prevent a heart attack during her second pregnancy. Dr. B should have tested her for a heart attack when she reported chest pain. She will require at least two heart transplants during her lifetime.

PHYSICIANS’ DEFENSE The perinatologist claimed that messages were left for the patient on both her work and mobile phones, but she did not return the calls. The perinatologist also mailed a pamphlet on APAS and an additional lab form to the patient. Dr. A claimed that the perinatologist was solely responsible for follow-up regarding the test results. Dr. B claimed that a heart attack is very rare in a 24-year-old woman, and was very difficult to identify; several doctors at two hospitals missed the diagnosis.

VERDICT A New Mexico jury found all parties at fault: Dr. B, 47.5%; Dr. A, 35%; perinatologist, 10%; and patient, 7.5%. The jury awarded $9 million in general damages and established a patient compensation fund for future medical expenses. The plaintiff’s actual recovery was $1.8 million due to a state cap.

Bowel injury after hysterectomy

AN OBGYN PERFORMED laparoscopically assisted vaginal hysterectomy on a 55-year-old woman. After surgery, the woman’s condition deteriorated. The ObGyn consulted with a surgeon, who performed an exploratory laparotomy 2 days after initial surgery; he suspected a bowel perforation, but could not find it.

The patient was transferred to another hospital and 4 days later, an imaging study of the bowel revealed the injury and the bowel was repaired. She developed sepsis and necrosis, and a 44-cm section of bowel was resected. Her recovery was complex.

PATIENT’S CLAIM The ObGyn was negligent in not promptly identifying the bowel injury during the initial surgery. The surgeon was negligent for failing to find the bowel injury during exploratory surgery.

PHYSICIAN’S DEFENSE The injury did not occur during the initial surgery; the perforation found at the second hospital was fresh and unrelated to the previous procedures.

VERDICT A Louisiana defense verdict was returned for the ObGyn. The surgeon was found negligent, and the jury awarded $3,314,801.

Zavanelli maneuver; brachial plexus injury

SHOULDER DYSTOCIA was encountered during delivery, and her ObGyn attempted several procedures, including use of a vacuum extractor. Ultimately, he performed a Zavanelli maneuver, in which the fetal head is pushed back into the birth canal in order to deliver the child by cesarean delivery. The child suffered a brachial plexus injury, and does not have use of her right arm.

PATIENT’S CLAIM The mother was administered too much oxytocin by the delivery nurse, causing contractions to be too strong and come too fast, resulting in fetal distress. The ObGyn applied the vacuum extractor when the fetus was too high in the birth canal, resulting in too much traction on the fetus’ brachial nerves.

PHYSICIAN’S DEFENSE The fetus was in grave danger, and was at the proper stage of delivery when the maneuvers were attempted. The child would have suffered significant brain injury or death if the maneuvers had not been attempted.

VERDICT A Georgia 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.

Gravida in septic shock; were signs missed?

WITH SEVERE ABDOMINAL PAIN AND VOMITING at 14 weeks’ gestation, a 30-year-old woman was brought by ambulance to the hospital. After initial evaluation did not reveal a cause of her symptoms, she was transferred to the antepartum unit for observation.

The mother developed hypotension and a diagnosis of septic shock was made. Fetal cardiac activity ceased and the woman developed intestinal ischemia. She underwent an intestinal transplant several months later.

PATIENT’S CLAIM Both treating physicians and the nursing staff failed to react to her intermittently low blood pressure, and failed to diagnose or treat septic shock in a timely manner.

DEFENDANTS’ DEFENSE The patient was properly monitored and treated.

VERDICT A $11,500,000 Illinois verdict was returned against the hospital. A defense verdict was returned for both physicians.

Lethal outcome of ovarian cystectomy

A WOMAN IN HER 40s underwent ovarian cystectomy. During surgery, her gynecologist encountered dense adhesions that required bowel dissection. Later, the woman complained of severe abdominal pain, despite taking pain medication. A second gynecologist ordered an abdominal scan that showed fluid and possible bowel obstruction. Hospital staff ruled out pulmonary embolism. When her blood pressure dropped to dangerous levels, a surgeon recommended surgery. Preoperative testing found punctures in both large and small intestines. Before she could be given anesthesia, the woman suffered cardiac arrest, and was placed on a ventilator. The family asked that the ventilator be removed after three days, and she died.

ESTATE’S CLAIM The hospital staff and gynecologists were negligent in not ruling out bowel perforation as soon as the woman complained of severe abdominal pain after surgery.

DEFENDANTS’ DEFENSE Bowel perforation is a known complication of the surgery. There was no negligence; it was a complicated problem and the staff had progressively attempted to rule out various postsurgical issues.

VERDICT A $2.5 million Illinois settlement was reached.

Mother’s herpes infection transmitted in childbirth

A BABY BECAME ILL WITHIN 3 DAYS of birth and died several weeks later from a herpes virus infection. The mother had complained of burning pain during the office visits prior to delivery, and during labor and delivery.

PATIENT’S CLAIM Additional testing should have been performed when the mother complained of symptoms prior to birth. The child contracted the herpes virus during vaginal delivery; proper and timely diagnosis would have resulted in a cesarean delivery. The mother denied having sexual partners during her pregnancy.

PHYSICIAN’S DEFENSE Negative results of a Herpes Select Test 6 months before birth made follow-up testing unnecessary. She must have contracted the disease after testing had been performed. She had no symptoms that made the viral disease diagnosable at delivery. The child’s symptoms suggested transplacental transmission of herpes; a cesarean delivery would not have changed the outcome.

VERDICT A Nevada defense verdict was returned.

Home birth emergency

DURING A HOME BIRTH managed by a midwife, the baby was born after the mother pushed for 2 hours and 47 minutes. The child suffered brain damage.

PATIENT’S CLAIM The midwife was negligent in failing to send the mother to the nearest hospital after she had been pushing for 2 hours. The dangers associated with the lack of fetal heart rate monitoring had never been explained to them.

DEFENDANT’S DEFENSE The parents agreed to a home birth without use of fetal heart rate monitoring. They signed a detailed consent form, which advised them that emergencies could occur during delivery, and that the level and type of care would be less than at a hospital.

VERDICT A $1.9 million New Jersey settlement was reached.

APAS causes heart attack; fetal demise

7 MONTHS INTO HER FIRST PREGNANCY, a woman in her 20s suffered intrauterine fetal demise. A perinatologist determined that the mother has antiphospholipid syndrome (APAS), an immune system disorder that can cause excessive blood clotting, premature miscarriage, and heart attack. Although the perinatologist and Dr. A, the woman’s Family Practitioner (FP), received the report, neither told the woman.

When 6-weeks’ pregnant with a second child, the woman awoke with severe, crushing chest pain. Dr. B saw her in the emergency department, but did not order an ECG or cardiac enzyme blood test. After 7.5 hours, Dr. B diagnosed morning sickness or indigestion, or both, and was ready to discharge her. However, the woman, still in intense pain, expressed concern for her fetus. Dr. B sent her to another hospital 2 hours away.

Upon arrival, her chest pain had diminished but she reported radiating back and neck pain. Although the hospital’s protocol required ECG within 10 minutes of presentation with chest pain, no ECG was performed. A diagnosis of “gall bladder problems” was made.

Eighteen hours later, she was sent to a university hospital, where an ECG revealed that she had been experiencing a clot-induced heart attack for 44 hours. Approximately 40% of her heart muscle was damaged, and she was counseled to not continue the pregnancy because of cardiac dysfunction.

PATIENT’S CLAIM The perinatologist and Dr. A were negligent in not telling her that she has APAS. With that information, she could have taken medication to prevent a heart attack during her second pregnancy. Dr. B should have tested her for a heart attack when she reported chest pain. She will require at least two heart transplants during her lifetime.

PHYSICIANS’ DEFENSE The perinatologist claimed that messages were left for the patient on both her work and mobile phones, but she did not return the calls. The perinatologist also mailed a pamphlet on APAS and an additional lab form to the patient. Dr. A claimed that the perinatologist was solely responsible for follow-up regarding the test results. Dr. B claimed that a heart attack is very rare in a 24-year-old woman, and was very difficult to identify; several doctors at two hospitals missed the diagnosis.

VERDICT A New Mexico jury found all parties at fault: Dr. B, 47.5%; Dr. A, 35%; perinatologist, 10%; and patient, 7.5%. The jury awarded $9 million in general damages and established a patient compensation fund for future medical expenses. The plaintiff’s actual recovery was $1.8 million due to a state cap.

Bowel injury after hysterectomy

AN OBGYN PERFORMED laparoscopically assisted vaginal hysterectomy on a 55-year-old woman. After surgery, the woman’s condition deteriorated. The ObGyn consulted with a surgeon, who performed an exploratory laparotomy 2 days after initial surgery; he suspected a bowel perforation, but could not find it.

The patient was transferred to another hospital and 4 days later, an imaging study of the bowel revealed the injury and the bowel was repaired. She developed sepsis and necrosis, and a 44-cm section of bowel was resected. Her recovery was complex.

PATIENT’S CLAIM The ObGyn was negligent in not promptly identifying the bowel injury during the initial surgery. The surgeon was negligent for failing to find the bowel injury during exploratory surgery.

PHYSICIAN’S DEFENSE The injury did not occur during the initial surgery; the perforation found at the second hospital was fresh and unrelated to the previous procedures.

VERDICT A Louisiana defense verdict was returned for the ObGyn. The surgeon was found negligent, and the jury awarded $3,314,801.

Zavanelli maneuver; brachial plexus injury

SHOULDER DYSTOCIA was encountered during delivery, and her ObGyn attempted several procedures, including use of a vacuum extractor. Ultimately, he performed a Zavanelli maneuver, in which the fetal head is pushed back into the birth canal in order to deliver the child by cesarean delivery. The child suffered a brachial plexus injury, and does not have use of her right arm.

PATIENT’S CLAIM The mother was administered too much oxytocin by the delivery nurse, causing contractions to be too strong and come too fast, resulting in fetal distress. The ObGyn applied the vacuum extractor when the fetus was too high in the birth canal, resulting in too much traction on the fetus’ brachial nerves.

PHYSICIAN’S DEFENSE The fetus was in grave danger, and was at the proper stage of delivery when the maneuvers were attempted. The child would have suffered significant brain injury or death if the maneuvers had not been attempted.

VERDICT A Georgia 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.

Gravida in septic shock; were signs missed?

WITH SEVERE ABDOMINAL PAIN AND VOMITING at 14 weeks’ gestation, a 30-year-old woman was brought by ambulance to the hospital. After initial evaluation did not reveal a cause of her symptoms, she was transferred to the antepartum unit for observation.

The mother developed hypotension and a diagnosis of septic shock was made. Fetal cardiac activity ceased and the woman developed intestinal ischemia. She underwent an intestinal transplant several months later.

PATIENT’S CLAIM Both treating physicians and the nursing staff failed to react to her intermittently low blood pressure, and failed to diagnose or treat septic shock in a timely manner.

DEFENDANTS’ DEFENSE The patient was properly monitored and treated.

VERDICT A $11,500,000 Illinois verdict was returned against the hospital. A defense verdict was returned for both physicians.

Lethal outcome of ovarian cystectomy

A WOMAN IN HER 40s underwent ovarian cystectomy. During surgery, her gynecologist encountered dense adhesions that required bowel dissection. Later, the woman complained of severe abdominal pain, despite taking pain medication. A second gynecologist ordered an abdominal scan that showed fluid and possible bowel obstruction. Hospital staff ruled out pulmonary embolism. When her blood pressure dropped to dangerous levels, a surgeon recommended surgery. Preoperative testing found punctures in both large and small intestines. Before she could be given anesthesia, the woman suffered cardiac arrest, and was placed on a ventilator. The family asked that the ventilator be removed after three days, and she died.

ESTATE’S CLAIM The hospital staff and gynecologists were negligent in not ruling out bowel perforation as soon as the woman complained of severe abdominal pain after surgery.

DEFENDANTS’ DEFENSE Bowel perforation is a known complication of the surgery. There was no negligence; it was a complicated problem and the staff had progressively attempted to rule out various postsurgical issues.

VERDICT A $2.5 million Illinois settlement was reached.

Mother’s herpes infection transmitted in childbirth

A BABY BECAME ILL WITHIN 3 DAYS of birth and died several weeks later from a herpes virus infection. The mother had complained of burning pain during the office visits prior to delivery, and during labor and delivery.

PATIENT’S CLAIM Additional testing should have been performed when the mother complained of symptoms prior to birth. The child contracted the herpes virus during vaginal delivery; proper and timely diagnosis would have resulted in a cesarean delivery. The mother denied having sexual partners during her pregnancy.

PHYSICIAN’S DEFENSE Negative results of a Herpes Select Test 6 months before birth made follow-up testing unnecessary. She must have contracted the disease after testing had been performed. She had no symptoms that made the viral disease diagnosable at delivery. The child’s symptoms suggested transplacental transmission of herpes; a cesarean delivery would not have changed the outcome.

VERDICT A Nevada defense verdict was returned.

Home birth emergency

DURING A HOME BIRTH managed by a midwife, the baby was born after the mother pushed for 2 hours and 47 minutes. The child suffered brain damage.

PATIENT’S CLAIM The midwife was negligent in failing to send the mother to the nearest hospital after she had been pushing for 2 hours. The dangers associated with the lack of fetal heart rate monitoring had never been explained to them.

DEFENDANT’S DEFENSE The parents agreed to a home birth without use of fetal heart rate monitoring. They signed a detailed consent form, which advised them that emergencies could occur during delivery, and that the level and type of care would be less than at a hospital.

VERDICT A $1.9 million New Jersey settlement was reached.

APAS causes heart attack; fetal demise

7 MONTHS INTO HER FIRST PREGNANCY, a woman in her 20s suffered intrauterine fetal demise. A perinatologist determined that the mother has antiphospholipid syndrome (APAS), an immune system disorder that can cause excessive blood clotting, premature miscarriage, and heart attack. Although the perinatologist and Dr. A, the woman’s Family Practitioner (FP), received the report, neither told the woman.

When 6-weeks’ pregnant with a second child, the woman awoke with severe, crushing chest pain. Dr. B saw her in the emergency department, but did not order an ECG or cardiac enzyme blood test. After 7.5 hours, Dr. B diagnosed morning sickness or indigestion, or both, and was ready to discharge her. However, the woman, still in intense pain, expressed concern for her fetus. Dr. B sent her to another hospital 2 hours away.

Upon arrival, her chest pain had diminished but she reported radiating back and neck pain. Although the hospital’s protocol required ECG within 10 minutes of presentation with chest pain, no ECG was performed. A diagnosis of “gall bladder problems” was made.

Eighteen hours later, she was sent to a university hospital, where an ECG revealed that she had been experiencing a clot-induced heart attack for 44 hours. Approximately 40% of her heart muscle was damaged, and she was counseled to not continue the pregnancy because of cardiac dysfunction.

PATIENT’S CLAIM The perinatologist and Dr. A were negligent in not telling her that she has APAS. With that information, she could have taken medication to prevent a heart attack during her second pregnancy. Dr. B should have tested her for a heart attack when she reported chest pain. She will require at least two heart transplants during her lifetime.

PHYSICIANS’ DEFENSE The perinatologist claimed that messages were left for the patient on both her work and mobile phones, but she did not return the calls. The perinatologist also mailed a pamphlet on APAS and an additional lab form to the patient. Dr. A claimed that the perinatologist was solely responsible for follow-up regarding the test results. Dr. B claimed that a heart attack is very rare in a 24-year-old woman, and was very difficult to identify; several doctors at two hospitals missed the diagnosis.

VERDICT A New Mexico jury found all parties at fault: Dr. B, 47.5%; Dr. A, 35%; perinatologist, 10%; and patient, 7.5%. The jury awarded $9 million in general damages and established a patient compensation fund for future medical expenses. The plaintiff’s actual recovery was $1.8 million due to a state cap.

Bowel injury after hysterectomy

AN OBGYN PERFORMED laparoscopically assisted vaginal hysterectomy on a 55-year-old woman. After surgery, the woman’s condition deteriorated. The ObGyn consulted with a surgeon, who performed an exploratory laparotomy 2 days after initial surgery; he suspected a bowel perforation, but could not find it.

The patient was transferred to another hospital and 4 days later, an imaging study of the bowel revealed the injury and the bowel was repaired. She developed sepsis and necrosis, and a 44-cm section of bowel was resected. Her recovery was complex.

PATIENT’S CLAIM The ObGyn was negligent in not promptly identifying the bowel injury during the initial surgery. The surgeon was negligent for failing to find the bowel injury during exploratory surgery.

PHYSICIAN’S DEFENSE The injury did not occur during the initial surgery; the perforation found at the second hospital was fresh and unrelated to the previous procedures.

VERDICT A Louisiana defense verdict was returned for the ObGyn. The surgeon was found negligent, and the jury awarded $3,314,801.

Zavanelli maneuver; brachial plexus injury

SHOULDER DYSTOCIA was encountered during delivery, and her ObGyn attempted several procedures, including use of a vacuum extractor. Ultimately, he performed a Zavanelli maneuver, in which the fetal head is pushed back into the birth canal in order to deliver the child by cesarean delivery. The child suffered a brachial plexus injury, and does not have use of her right arm.

PATIENT’S CLAIM The mother was administered too much oxytocin by the delivery nurse, causing contractions to be too strong and come too fast, resulting in fetal distress. The ObGyn applied the vacuum extractor when the fetus was too high in the birth canal, resulting in too much traction on the fetus’ brachial nerves.

PHYSICIAN’S DEFENSE The fetus was in grave danger, and was at the proper stage of delivery when the maneuvers were attempted. The child would have suffered significant brain injury or death if the maneuvers had not been attempted.

VERDICT A Georgia 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.

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.

The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.

After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.

The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.

One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.

The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.

The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.

Continue for outcome >>

Outcome
According to a published account, a defense verdict was returned.

Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.

As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.

Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.

When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.

Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.

Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.

Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML                       

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.

The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.

After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.

The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.

One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.

The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.

The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.

Continue for outcome >>

Outcome
According to a published account, a defense verdict was returned.

Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.

As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.

Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.

When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.

Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.

Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.

Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML                       

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.

The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.

After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.

The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.

One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.

The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.

The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.

Continue for outcome >>

Outcome
According to a published account, a defense verdict was returned.

Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.

As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.

Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.

When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.

Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.

Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.

Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML                       

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Chest X-Ray Filed Before Clinician’s Review
In anticipation of a cardiac catheterization, a 76-year-old Illinois man underwent a chest x-ray in March 2003. The x-ray showed a 4-cm mass in the left lung, which the radiologist identified as bronchogenic carcinoma.

A staff member in the office of the defendant physician who had ordered the x-ray believed incorrectly that the physician had already seen the results and filed the report in the patient’s chart. The report was not seen again until after a diagnosis of lung cancer had been made in September 2003. By that time, the cancer had metastasized to the man’s liver, pelvis, hip, femur, spine, and shoulder. He died 18 days after the diagnosis was made.

The plaintiff claimed that if the cancer had been diagnosed earlier, the decedent could have been made comfortable during treatment, and he would have survived longer. The defendant admitted liability but argued that the reduction in the decedent’s life expectancy was minimal because his cancer was in an advanced stage in March 2003. The defendant claimed that the net increase in the patient’s pain and suffering was minimal because he would have undergone chemotherapy and radiation if a diagnosis of cancer had been made earlier.

Continue for outcome >>

Outcome
According to a published report, a $1 million verdict was returned.

Comment
This case illustrates just how angry a jury can become when “the system” fails. The plaintiff’s decedent was elderly, with established bronchogenic carcinoma, and the plaintiff did not allege that the six-month delay between the study and diagnosis would have permitted a chance for cure—but only modest improvements in life expectancy and comfort. Nevertheless, the jury returned a substantial ­verdict.

Jurors, like patients, expect study results to be flawlessly communicated to and between clinicians. As clinicians, we must ensure that adequate systems are in place to guarantee that study results are reviewed in a timely manner. I suspect that many of us have received a long-delayed abnormal result and endured the unpleasant experience of contacting the patient to see what shape she or he was in.

Study findings simply cannot be filed until they have been reviewed and acknowledged by a clinician. If this is a problem in your practice, work to establish a system. Any system adopted must assign responsibility for the day-to-day flow of study results to avoid the “pop fly syndrome”—that is, a situation in which everyone thinks someone else is taking responsibility for a study, and the ball is dropped.

A chosen system should also address special circumstances: Miscommunication is known to be more common during holidays, vacations, extended clinician leaves, and use of moonlighters. Consider designating one individual specifically to confirm that abnormal lab results are reported to clinicians, then build two or more additional complementary layers as a “safety net” for the practice. Redundancy can hedge against errors. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Chest X-Ray Filed Before Clinician’s Review
In anticipation of a cardiac catheterization, a 76-year-old Illinois man underwent a chest x-ray in March 2003. The x-ray showed a 4-cm mass in the left lung, which the radiologist identified as bronchogenic carcinoma.

A staff member in the office of the defendant physician who had ordered the x-ray believed incorrectly that the physician had already seen the results and filed the report in the patient’s chart. The report was not seen again until after a diagnosis of lung cancer had been made in September 2003. By that time, the cancer had metastasized to the man’s liver, pelvis, hip, femur, spine, and shoulder. He died 18 days after the diagnosis was made.

The plaintiff claimed that if the cancer had been diagnosed earlier, the decedent could have been made comfortable during treatment, and he would have survived longer. The defendant admitted liability but argued that the reduction in the decedent’s life expectancy was minimal because his cancer was in an advanced stage in March 2003. The defendant claimed that the net increase in the patient’s pain and suffering was minimal because he would have undergone chemotherapy and radiation if a diagnosis of cancer had been made earlier.

Continue for outcome >>

Outcome
According to a published report, a $1 million verdict was returned.

Comment
This case illustrates just how angry a jury can become when “the system” fails. The plaintiff’s decedent was elderly, with established bronchogenic carcinoma, and the plaintiff did not allege that the six-month delay between the study and diagnosis would have permitted a chance for cure—but only modest improvements in life expectancy and comfort. Nevertheless, the jury returned a substantial ­verdict.

Jurors, like patients, expect study results to be flawlessly communicated to and between clinicians. As clinicians, we must ensure that adequate systems are in place to guarantee that study results are reviewed in a timely manner. I suspect that many of us have received a long-delayed abnormal result and endured the unpleasant experience of contacting the patient to see what shape she or he was in.

Study findings simply cannot be filed until they have been reviewed and acknowledged by a clinician. If this is a problem in your practice, work to establish a system. Any system adopted must assign responsibility for the day-to-day flow of study results to avoid the “pop fly syndrome”—that is, a situation in which everyone thinks someone else is taking responsibility for a study, and the ball is dropped.

A chosen system should also address special circumstances: Miscommunication is known to be more common during holidays, vacations, extended clinician leaves, and use of moonlighters. Consider designating one individual specifically to confirm that abnormal lab results are reported to clinicians, then build two or more additional complementary layers as a “safety net” for the practice. Redundancy can hedge against errors. —DML

Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.

Chest X-Ray Filed Before Clinician’s Review
In anticipation of a cardiac catheterization, a 76-year-old Illinois man underwent a chest x-ray in March 2003. The x-ray showed a 4-cm mass in the left lung, which the radiologist identified as bronchogenic carcinoma.

A staff member in the office of the defendant physician who had ordered the x-ray believed incorrectly that the physician had already seen the results and filed the report in the patient’s chart. The report was not seen again until after a diagnosis of lung cancer had been made in September 2003. By that time, the cancer had metastasized to the man’s liver, pelvis, hip, femur, spine, and shoulder. He died 18 days after the diagnosis was made.

The plaintiff claimed that if the cancer had been diagnosed earlier, the decedent could have been made comfortable during treatment, and he would have survived longer. The defendant admitted liability but argued that the reduction in the decedent’s life expectancy was minimal because his cancer was in an advanced stage in March 2003. The defendant claimed that the net increase in the patient’s pain and suffering was minimal because he would have undergone chemotherapy and radiation if a diagnosis of cancer had been made earlier.

Continue for outcome >>

Outcome
According to a published report, a $1 million verdict was returned.

Comment
This case illustrates just how angry a jury can become when “the system” fails. The plaintiff’s decedent was elderly, with established bronchogenic carcinoma, and the plaintiff did not allege that the six-month delay between the study and diagnosis would have permitted a chance for cure—but only modest improvements in life expectancy and comfort. Nevertheless, the jury returned a substantial ­verdict.

Jurors, like patients, expect study results to be flawlessly communicated to and between clinicians. As clinicians, we must ensure that adequate systems are in place to guarantee that study results are reviewed in a timely manner. I suspect that many of us have received a long-delayed abnormal result and endured the unpleasant experience of contacting the patient to see what shape she or he was in.

Study findings simply cannot be filed until they have been reviewed and acknowledged by a clinician. If this is a problem in your practice, work to establish a system. Any system adopted must assign responsibility for the day-to-day flow of study results to avoid the “pop fly syndrome”—that is, a situation in which everyone thinks someone else is taking responsibility for a study, and the ball is dropped.

A chosen system should also address special circumstances: Miscommunication is known to be more common during holidays, vacations, extended clinician leaves, and use of moonlighters. Consider designating one individual specifically to confirm that abnormal lab results are reported to clinicians, then build two or more additional complementary layers as a “safety net” for the practice. Redundancy can hedge against errors. —DML