Legally Speaking

LEGALLY SPEAKING
Risk management in obstetrics and gynecology

Failure to evaluate a persistent breast mass

In January 2001, a 41-year-old California woman presented to her family practice physician complaining of a lump in her left breast. No abnormality was found on ultrasound, but the report ruled out a cyst and advised further evaluation if clinical findings warranted. The patient was not referred to a specialist and at her next appointment, was assured by the physician that the lump was benign; no further examination of her breast was done.

When the woman returned for her annual exam in May 2001, the lump was found to be 5 x 5 cm, and the breast was indurated. The physician noted these findings in the record, continued to prescribe oral contraceptives, and did not refer the patient for evaluation of the mass. During the woman's next two appointments, the physician performed sigmoidoscopy and a treadmill test, but made no notes about the breast mass and did not examine the breast. Two months later, the patient presented to him with a red, inflamed breast with nipple inversion, which he diagnosed as acute contact dermatitis and treated as such at two subsequent appointments. When the patient finally insisted on a referral, the physician agreed to the request and referred her to a specialist. In October 2001, the woman was seen by a surgeon and was diagnosed with stage IV breast cancer with liver metastasis.

The patient sued the physician, claiming that he should have referred the patient to a breast surgeon in May 2001, when the mass was found to be 5 x 5 cm. At deposition, the physician testified that when he charted these findings, his differential diagnosis acknowledged that malignancy was most likely. His further claim that he referred the woman to a surgeon at that time was inconsistent with his actions in all subsequent encounters with the patient. No discussions with the patient in May 2001 about seeing a surgeon were noted in the chart nor was an earlier request for referral documented but there were notes from several appointments at which the physician apparently did not mention or even examine the woman's breast. This case was settled after a half day of mediation for $500,000.

Legal perspective

In this case, a chart entry stating that a referral was requested was made in May 2001 but overwritten on other notes for the May visit. The patient's attorney hired a "documents examiner" to inspect the note for the supposed May referral. Documents Examiners are professionals who can assess the authenticity of writing based on the other marks on the page, ink types, indentations on both the previous and subsequent pages, and other techniques. Many times these experts can determine if notes were added at a later time than the original. In this case, the examiner could not discern on what date the entry about the request for referral was made. The suspicious entry, the subsequent inconsistency in the physician's behavior and notes about referral to a surgeon, and his lack of follow-up to make a responsible diagnosis made it very difficult to defend the delay in diagnosis of a persistent breast mass.

Ureter transection during laparotomy

A 70-year-old California woman underwent laparoscopic removal of adnexal masses. During the procedure, the gynecologist noted dense adhesions and proceeded with an open procedure. The following morning, the pathologist informed the gynecologist that the right ureter had been transected. After an IV pyelogram, a urologist attempted a ureteral repair, which subsequently failed. Nine months later, after numerous attempts to repair the ureter, the patient underwent a right nephrectomy.

The woman sued the gynecologist, contending that she failed to identify the ureter anatomically during the operation, and that during the procedure, she negligently clamped and transected the ureter. She allegedly failed to realize the injury intraoperatively, as well. The patient claimed that had the transected ureter been timely recognized, a urologist could have been urgently consulted and a successful repair would have been made, preserving the patient's kidney. The patient's remaining left kidney is apparently functioning well.

The gynecologist argued that transection of a ureter is a risk of undergoing this procedure, and even if the ureter had been transected intraoperatively and recognized, the patient still would have required removal of her right kidney. After a 2-day arbitration, a binding award of $233,533 was announced.

Shoulder dystocia with delivery of a large infant

A Washington woman sought the services of a group of midwives for prenatal care. Her pregnancy course was essentially unremarkable until an ultrasound at 39 weeks showed an estimated fetal weight of 4,691 g. During subsequent visits and telephone conversations with the midwives, the patient was told that U/S showed she most probably had a large baby and she was advised of the potential risk of shoulder dystocia during delivery. Over the next few prenatal visits, the woman's membranes were stripped and she was given prostaglandin gel, but neither induction nor C/S was discussed with her.

On June 15, 1999, the woman was admitted for spontaneous rupture of membranes at 42 2/7 weeks' gestation. At 6:10 am on June 19, after pushing for several hours, the patient became exhausted and was making little progress in descent. The midwife contacted the obstetrician on call, who essentially instructed her to keep the woman pushing. At that point, the station of the head was still too high to allow application of forceps or vacuum. By 7:51 am the fetal head was visible; an obstetrician was called to assist with the delivery and arrived at 8:46 am. The head was delivered at 8:54 am, and a shoulder dystocia was encountered. The obstetrician took over, but was unable to deliver the infant for more than 10 minutes. A second obstetrician was called and the baby was delivered 1 to 2 minutes after that. The infant, who weighed 5,270 g, had Apgar scores of 0 at 1 minute, 1 at 5 minutes, and 3 at 10 minutes and developed seizures. Ultimately he was found to have suffered profound asphyxia caused by the shoulder dystocia and he now suffers from severe cerebral palsy of the mixed spastic/athetoid type.

The patient filed a lawsuit, claiming that while shoulder dystocia was discussed with her after the U/S, she was never frankly advised of the extent of risk or that injuries such as asphyxia and brain injury to the infant could occur. She also claimed that cesarean delivery was never presented or discussed as an option, and no induction was offered after the U/S showed a large baby at 39 weeks. The patient's attorney planned to have numerous expert witnesses testify regarding liability, causation, and damages, but the case settled for $5.5 million before any expert depositions were taken.

Claim of improper performance of D&C

A 20-year-old woman entered an Oklahoma hospital after suffering a missed abortion and underwent a dilation and curettage performed by the resident and supervised by the attending gynecologist. Ten days later, the fetus was expelled while the woman was at home and she then underwent a second D&C.

The woman subsequently sued both doctors, claiming that she never consented to have the first procedure performed by a resident, and that the procedure was negligently performed. The woman claimed she required psychological counseling and medication after the surgeries and sought damages for these complications, the cost of the procedures, and for pain and suffering and emotional distress.

The physicians contended that the patient was informed that a resident would be involved in the procedure, and that not successfully removing all the fetal tissue was a known risk of the surgery. The jury returned a defense verdict.

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.

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

Dawn Collins. Legally Speaking.

Contemporary Ob/Gyn

Nov. 1, 2003;48:36-38.