LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Severe brain damage from uterine rupture

A 39-year-old California woman was under the care of an obstetrician for her second pregnancy. She elected to attempt VBAC despite a previous C/S for twins and was admitted to the hospital for induction of labor due to an estimated large-sized fetus. Her labor progressed normally, but the fetal heart rate began to show some changes during the second stage and vaginal examination showed the head at –2 to –3 station. The medical staff interpreted the tracing as normal for the second stage with descent of the fetal head. After 25 minutes with no change, the obstetrician was called; 20 minutes after arriving, he called for a C/S. Twenty minutes after that, the procedure began. In the meantime, the FHR decelerated into the 60s. The baby was born with severe brain damage and cerebral palsy.

The lawsuit that followed claimed that the obstetrician and hospital should have called for and performed an emergency C/S at least 15 minutes earlier than they did to avoid the neurologic injuries to the child.

The physician and hospital denied any negligence or unreasonable delay, and noted that uterine rupture was a known potential complication of attempting a VBAC. They showed that the patient had signed a consent form informing her that if her uterus ruptured, the baby might not be delivered quickly enough to avoid brain injury or death, and that she had read and initialed another item that stated there was a 50% chance of fetal brain injury or death in the event of uterine rupture. The jury returned a $14.8 million verdict against the defendants.

Legal perspective

The usual issues in a malpractice case involving VBAC with uterine rupture are lack of informed consent and recognition and management of the rupture. The lack of informed consent claim can be overcome with documentation that the risks and benefits of VBAC were discussed with the patient, that she elected VBAC over repeat C/S, and she understood the possible complications from uterine rupture. In the case here, the consent process and documentation seems exemplary, and should negate that issue. There is still the issue of management of the rupture, and while we do not have exact times of the FHR deceleration, the defendants may have had problems justifying the time it took to recognize the FHR changes and effect timely delivery. To defend such a case, both the consent and patient management must be within the standard of care and appropriately documented in the record.

Inverted uterus results in hysterectomy

An 21-year-old Indiana woman who was 2 weeks past due with her second pregnancy went to the hospital, where her family doctor successfully delivered the baby. The placenta, however, did not deliver in a timely fashion, and the physician instructed a nurse to apply fundal pressure while he pulled on the umbilical cord. The uterus then inverted and the woman began to hemorrhage and went into shock. The family physician then called an obstetrician to repair the damage, which included a hysterectomy. The patient recovered physically, but she is unable to have more children and is left with a large scar and depression.

The woman sued the family physician, claiming that he failed to note her significant bleeding and applied excessive force on the umbilical cord. Her complaint was initially dismissed on summary judgment because of her attorney's failure to meet a court-imposed deadline for the identification of an expert witness, even though the attorney found an expert before the summary judgment hearing. The appellate court reversed the trial court and reinstated the complaint. Five years later, the case went to trial and the jury returned a $151,666 verdict for the woman.

Woman claims failure to timely deliver before brain damage occurred

A Michigan woman was managed during her labor and delivery by a family practitioner. Her labor had progressed normally and when she began pushing, some FHR changes were seen. Labor was allowed to continue and she delivered vaginally about 1 hour later. At delivery, the infant was neurologically compromised and has subsequently been diagnosed as suffering from mental retardation and cerebral palsy

The woman sued the family practitioner, claiming failure to timely deliver the patient before brain damage occurred. The woman's expert witnesses were critical of the management of the second stage of labor and stated that while delivery was not immediately indicated at the beginning of pushing, the FHR changes warranted the family practitioner consulting an obstetrician. In the expert's opinion, the monitor tracings continued to show evidence of variable and late decelerations, and that delivery should have been accomplished by C/S after 45 minutes of pushing.

The physician's experts contended there was nothing on the monitor tracings during the second stage indicating delivery needed to be accomplished, and the physician handled everything very well during the labor and delivery. The proximate-cause experts contended there was no evidence of hypoxic/ischemic insult at the time of birth, and that the infant's injuries were related to an event that occurred well in advance of the labor process. This case settled, however, with mediation for $2.4 million.

Delayed diagnosis of cervical cancer

In September 1986, a Missouri woman saw her physician for her annual gynecologic examination, which included a Pap smear. The Pap test results were "abnormal" but the woman's family later claimed that she was not notified of that or the need for any further testing. The woman did return to the clinic two more times that year, once to accompany her sister, and purportedly asked someone in the office about her last test result and was told "not to worry about it." Fifteen months after the abnormal test smear, she returned for her annual examination and another Pap smear, which showed stage III cervical cancer. She died in 1991 at age 34.

In 1994, the woman's mother and son filed a wrongful death suit against the first physician, the physician who owned the practice, and the clinic. They claimed that the delay in diagnosis of the cancer led to the patient's death.

The physician argued that his staff had sent out a letter informing the patient of her test results and the need for follow-up, and had spoke to her about it when she was in the office. The jury found in favor of the physician and clinic.

Rectal cancer diagnosis blamed on obstetrician

A 66-year-old Massachusetts woman was diagnosed with stage III rectal cancer in September 1998. For several years before that, she had been seen regularly by her gynecologist, who performed regular stool guaiac exams to screen for colorectal cancer. Those tests were negative until December 1997, when the woman reported rectal bleeding, which the gynecologist attributed to hemorrhoids. No further testing was done and no referrals were made. In 1998, after the cancer diagnosis, the woman underwent chemotherapy, radiation, and surgery.

The woman sued the gynecologist, alleging that the standard of care required her to perform routine sigmoidoscopies for colorectal screening and that the delay in diagnosis resulted in a reduced chance for survival.

The physician contended that she had no duty to offer a sigmoidoscopy or other specific cancer-screening tests to a patient given an annual stool guaiac test, and that any delay in diagnosing the cancer after the December 1997 exam did not alter the patient's prognosis. The physician also emphasized that the woman had been cancer-free for 4 ¹/₂ years at the time of trial. The jury returned a defense verdict.

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 Mar. 1, 2004;49:26-29.