LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Shoulder dystocia management on video

A New Jersey boy suffered Erb's Palsy during delivery in 1997. His parents sued the obstetrician involved, alleging the physician used excessive force to deliver the infant, causing the brachial plexus injury. The boy's right arm now is 1 in shorter than his left arm, and he cannot fully extend, rotate, or raise the arm. At age 3, he was diagnosed with leukemia, which led to postponement of surgery and other therapy to improve shoulder function. His chemotherapy recently ended and he will now proceed with interventions for the Erb's palsy.

During the trial, the jury was shown a videotape of the boy's entire delivery. On the tape, the physician was seen pushing down on and twisting the infant's head and then exerting more downward pressure in an attempt to free the shoulder and deliver the boy. The tape also showed that after delivery, the obstetrician lifted the infant's arm, which fell limply to his side.

The obstetrician's delivery notes conflicted with the tape, failing to mention the second use of downward traction and the limp arm. The physician also claimed he pushed lightly with his fingers on the head, although the camera shows him pushing down with both hands. The defense argued the injury was caused in utero, and tried to downplay the severity of the resulting palsy. The jury awarded the boy $1,424,317 ($350,000 for past pain and suffering, $500,000 for future pain and suffering, $200,000 for future lost earnings, plus $374,317 for prejudgment interest).

Legal perspective

Many hospitals still wrestle with whether to allow videotaping of deliveries. When a malpractice suit is brought, such a videotape can sometimes aid the defense, but in other cases, it can show that care was below the standard or create suspicion in the jurors' minds about the accuracy of the records. Even if care is not below the standard, a recording allows for retrospective "second-guessing" and any suspicions raised in the jurors' minds may obscure the real issues.

More and more hospitals and physician groups are choosing not to allow taping of deliveries, and most report that such a policy does not deter patients from seeking care and delivery at their institutions. If your institution does allow taping, however, it is prudent to confirm that the record accurately reflects the actual care given, the times are accurate, and the notes are consistent with each other.

Failure to diagnose endometrial cancer

A Pennsylvania woman was first seen by an ob/gyn group in 1993 at age 40 and reported at the time that her menses were irregular and always had been. Seven days later she underwent a pelvic ultrasound, which appeared normal. In 1999 her physician noted that the woman had not had regular menses for the previous 2 years. On November 1 of that year she underwent transvaginal ultrasound to rule out endometrial pathology. Those apparently normal results were reviewed with the patient on November 3, 1999. The medical record indicated she was to begin on hormone treatment and noted that "any abnormalities" will be "assessed—with biopsy." On November 9, 2000 the patient telephoned the physician's office and stated that she had not had a period for over a year but had been spotting. She was seen later that month but no further workup was done. On numerous instances in late 2000 and 2001, the patient telephoned the office continuing to report her concern about unusual bleeding. In February 2001, without seeing the patient, the physician ordered an abdominal U/S, which was done.

On February 26, 2001, the woman again presented to the physician for further evaluation of dysfunctional uterine bleeding. Progress notes for that date indicated no success with intermittent use of progestins, and contraceptive pill suppression had failed to normalize the woman's cycles. Her hormone treatment dosage was increased. In April 2001, she advised her physician that she was due for an annual examination and was instructed to call back to schedule the exam and assured that her complaints would be re-evaluated at that time. Three days later, when she attempted to schedule the examination, she was informed that the ob/gyn had relocated to Texas. In May 2001, the woman visited another ob/gyn group; on June 18, a doctor from that group performed an endometrial biopsy, and on June 29, 2001, she underwent a D&C. After the endometrial biopsy, the woman was diagnosed with endometrial cancer and underwent a radical hysterectomy. She had metastasis to the retroperitoneal, supraclavicular, and mediastinal lymph nodes. She pursued treatment with chemotherapy and radiation, but ultimately died on October 11, 2002 at age 50.

In the subsequent lawsuit, the physician testified in deposition that he was aware that the patient had all the classic risk factors for endometrial cancer and that at that time, it would have taken only 10 minutes to perform an endometrial biopsy. He further testified that the bleeding this patient was experiencing before the November 29, 2000 office visit was in fact abnormal. He did not realize that the February 2, 2001 U/S was a transabdominal U/S until the day before his December 18, 2002 deposition. He further testified that had he realized that it was a transabdominal scan, he would have ordered a transvaginal U/S or some other type of testing. This case was settled on the eve of trial for $1 million.

Laser for endometriosis results in nerve damage

In 1996, a Maryland woman presented to her ob/gyn for a laparoscopic procedure to treat endometriosis and adhesions. Following surgery, the patient claimed to have permanent nerve damage to her obturator nerve, with damage to the thigh and to her genitofemoral nerve. She sued the ob/gyn, alleging that overly aggressive use of a YAG laser and endocoagulator during the procedure caused permanent nerve damage. She alleged damage to the tissue, and damage to sensation in her inner thigh and genital area and also claimed that as a result of pain and physical impairment, she cannot work.

The physician contended that the YAG laser and endocoagulator are contact instruments that do not penetrate to the depth required to cause the claimed injury. Defense experts argued that the patient's theory of injury causation was nearly impossible and the injury could not have occurred as alleged. The jury returned a defense verdict.

Appendicitis during pregnancy

A California woman in the 23rd week of her second pregnancy had her first prenatal visit at the hospital. Laboratory work was performed and a CBC showed a WBC of 18,800, but there was no documentation that the results were reviewed. Over the next 2 weeks, the patient presented in person or by phone on five occasions, complaining of abdominal pain. Each time, the general consensus was round ligament pain. The patient finally presented to the emergency room and was diagnosed with appendicitis. After an appendectomy, she went into labor and delivered a premature infant at 26 weeks' gestation, who has since been diagnosed as mildly mentally retarded.

The mother sued, contending that if the medical personnel had properly communicated the results of the blood test and based on her complaints, ordered a general surgery consult, an appropriate workup would have been done and her appendicitis diagnosed. She claimed that the most common nonobstetrical reason for abdominal pain in a pregnant mother is appendicitis, and that timely performance of an appendectomy would have prevented a preterm delivery.

The physician argued that if surgery had occurred during the first week the mother complained of pain, the baby would have died. The patient was awarded $1.3 million in arbitration.

Many times, the factual information available about the cases presented here is incomplete. Thus it may not always be possible to discuss all of the elements of negligence or nuances involved in a given situation. The outcomes described also may not reflect the current standard of care or the best practice in obstetrics and gynecology. What these cases do represent are the types of clinical situations in the specialty that typically result in litigation and the variation in jury verdicts and awards across the nation. Some of the cases described have merit but many do not.

— Dawn Collins, JD

Department editor Dawn Collins, JD, is an attorney specializing in medical malpractice in Long Beach, Calif. She welcomes feedback on this column via e-mail to DawnCF@aol.com.

Dawn Collins. Legally Speaking.

Contemporary Ob/Gyn

Jul. 1, 2004;49:36-39.