LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Postpartum death

In 1997, a 43-year-old New York woman delivered a son by cesarean section and also underwent a bilateral tubal ligation. Sometime after 8 pm that same night, she was found cold and unresponsive. Although attempts were made for an hour to revive her, she could not be resuscitated. At autopsy, hemorrhage was found to be the cause of death and 1,500 mL of blood were found in the woman's peritoneal cavity. She was survived by her husband, a 5-year-old daughter, and her newborn son.

The woman's husband sued the physician and hospital, claiming that after her operation she was left unattended from 6:15 pm until some time after 8 pm when she bled to death. The husband raised considerable doubt about the validity of the medical record. He showed that there were two notes in the chart: one from the nurses at 6:15 pm and one at 8 pm from the anesthesiologist, when the patient was found cold and unresponsive. The notes appeared normal in size and fit on the lines in the chart. The husband then showed an entry at 7 pm that was written in half the size of the previous entries, and contained two lines of writing in one line of space. An equally small 7:30 pm entry was partially written over the 8 pm note. He further contended that the hemorrhage was the result of improper suturing.

The defense contended that the chart contained contemporaneous entries indicating that the patient was given appropriate nursing care during the post- operative period and that all the entries in the chart accurately reflected the woman's clinical status. They argued further that she was monitored appropriately postoperatively and showed no signs of bleeding, including, but not limited to, changes in skin appearance, decreased temperature, low blood pressure, distention of the abdomen, or increased vaginal bleeding. The parties settled, however, for $2.25 million.

Legal perspective

In this case, the parties settled after the court granted the plaintiff's motion to compel production of the original medical chart for forensic testing. The description of the two questionable notes would be suspicious to jurors if they were added after the fact in an attempt to document some care to the patient between 6:15 and 8 pm. Document experts can use various methods to test writing in a chart, including evaluating impressions left on pages below, and can give opinions as to when something was written in relationship to the rest of the charting. It's always best to document care contemporaneously, but occasionally it may be necessary to add a note to the chart. When a bad outcome has occurred, it is best to write the note as an addendum to the other charting and explain the reason for adding the late entry.

Were corticosteroids administered in a timely fashion?

In 1991, a New York woman presented to a hospital at 28 weeks' gestation with contractions and was found to be 2 cm dilated. An attempt was made to prolong the pregnancy with tocolysis, but her contractions continued. She was under the care of a certified nurse midwife and attending physician. The next night the physician ordered corticosteroids to enhance fetal lung maturity, but the woman delivered approximately 5 hours after the medication was given. The infant developed respiratory distress syndrome (RDS) and suffered an intraventricular hemorrhage with residual brain damage.

The woman sued those involved with her delivery. She claimed that dexamethasone should have been administered shortly after her hospital admission, and that timely administration would have allowed her infant's lungs to mature sufficiently, preventing the onset of RDS. The parties reached a $3.6 million pretrial settlement.

Uterine perforation during D&E

A 36-year-old woman contracted parvovirus during her pregnancy and her unborn died in utero at 23 weeks' gestation. She presented to her obstetrician for cervical ripening, which was begun in the morning. The medical plan was to continue the dilatation until the following morning and perform a D&E the next afternoon. The first afternoon, the woman developed a fever; that evening, she returned to the hospital and a D&E was performed. During the procedure the physician perforated her uterus and vaginally exposed her bowel. The woman underwent a 5-hour operation consisting of a hysterectomy, bowel resection, colostomy, and removal of one ovary and fallopian tube.

The patient sued the obstetrician, claiming a lack of informed consent, failure to properly prepare the cervix, and negligent injury to her bowel. She claimed sterility, psychological injuries, and vaginal scars, injuries that the woman said led to psychosexual and physiological difficulties, which impaired her marital sexual relationship. She also claimed continuing urinary incontinence, bowel incontinence, and diarrhea.

The physician contended that the injuries were known complications of a D&E, the procedure was medically necessary, and the best medical judgment had been used at all times. The jury rendered a defense verdict.

Shoulder dystocia leads to fetal demise

A 40-year-old Virginia woman sued her obstetrician after a shoulder dystocia was encountered during delivery. The woman was obese and previously had vaginally delivered two macrosomic infants. Both were over 10 lb and the latter delivery, which had occurred when the woman was age 28, was complicated by a broken coccyx. After trying for several years to become pregnant again, she entered her third pregnancy at the age of 40. She developed gestational diabetes and her fundal height exceeded her weeks of gestation throughout the pregnancy.

An ultrasound of the woman did not appear to reveal a particularly large fetus, although the abdominal girth was large. As she neared term, the woman warned her obstetrician that she again was carrying a large baby, and she predicted she would have difficulty delivering. He counseled her that her baby would be no more than 8 lb, and according to the patient, told her she would "spit out" the baby easily. The woman went into labor at full term and when progress was slow in the second stage, the physician ordered oxytocin. A severe shoulder dystocia was encountered at delivery and the infant became tightly wedged into the pelvis and died during attempts to accomplish the delivery. Autopsy showed a dislocation of the infant's cervical vertebra. The mother suffered a sacroiliac joint injury, resulting in back pain and sciatica. She was diagnosed with posttraumatic stress disorder and suffered flash-backs, nightmares, tremors, and tearfulness. Mediation resulted in an award of $675,000 for the woman.

Vacuum delivery blamed for brain damage

In 1998, a 30-year-old Missouri woman gave birth to her son at the regional hospital. The physician tried 15 times to deliver the baby with a vacuum extractor. The infant suffered brain damage and later developed cerebral palsy. He has an estimated IQ of 25, requires 24-hour supervision by medical personnel, and has a significantly shortened life expectancy.

The mother sued the physician, alleging that the vacuum was used in a manner that constricted some blood vessels in the brain, cut off oxygen, and caused brain damage. She sought damages for health-care costs related to the infant's injuries, loss of ability to lead a normal life, and loss of future income.

The physician contended that the cause of the baby's injuries preexisted the delivery and the mother had a higher-than-normal temperature during labor. After a 2-day bench trial, the judge found for the woman and child, awarding $19 million in damages. This included $11 million for future medical cost, $2 million for future loss of the enjoyment of life, $2 million for future lost earnings, and $4 million for future pain and suffering.

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

May 1, 2004;49:28-30.