LEGALLY SPEAKING
Risk management in obstetrics and gynecology

No FHR monitoring in the operating room

In 1998, an Illinois woman delivered a stillborn infant by cesarean section after 24 hours of labor. The patient was in the operating room for 30 minutes before the procedure started because of spotty epidural anesthesia effect.

In the lawsuit that followed the delivery, it was alleged that the operating physicians failed to order continuation of fetal heart rate monitoring in the operating room for approximately 30 minutes. During that time, the parents claimed, the fetus experienced fetal asphyxia due to compression of the uterus onto the uterine vessels and the aorta.

The physicians argued that the standard of care did not require FHR monitoring in the OR because more than 24 hours of reassuring FHR strips had already been recorded. They claimed that C/S was anticipated to be performed without delay, and the unanticipated delay did not require replacement of the monitor in the OR. The physicians further argued that the stillbirth was caused by fetal hemorrhage. The bleeding occurred because an incision through the placenta was necessary and delivery was unexpectedly delayed 4 to 5 minutes because of the unusual degree in which the infant's head was wedged in the mother's pelvis. During this time, the fetus lost 30% of her blood volume and could not be resuscitated. The jury returned a verdict for the physicians.

Legal perspective

After reading this case, one must assume that the physicians presented credible evidence that the death was caused by a necessary incision through the placenta and subsequent uncontrollable bleeding and that the jury believed this theory. However, it's worth commenting about the physicians' argument that the standard of care did not require FHR monitoring in the OR. The American College of Obstetricians and Gynecologists' Guidelines for Perinatal Care are in complete opposition to this statement and do require FHR monitoring, of some type, up to the time of the abdominal prep and if using internal electrode, until the abdominal prep is complete. There are no exceptions made for a previously reassuring strip for any amount of time, nor is the expectation that the C/S will begin right away an excuse for no FHR monitoring in the OR—delay or no delay, anticipated or not. It would be hard to imagine a jury verdict for the defense if there had not been another explanation for the cause of death.

Claim that fetal asphyxia during labor caused ADHD

A pregnant Illinois woman at term had labor induced in the hospital. When the labor progressed and the patient was dilated to 9 cm, the defendant physician left the hospital to see patients in his office, which was 10 to 15 minutes away. Ninety minutes after he left, a prolonged FHR deceleration began and lasted 7 minutes. The doctor was paged, returned, and emergently performed a vaginal delivery. The child now has attention deficit hyperactivity disorder (ADHD).

The woman sued the physician and hospital, claiming the doctor should not have left the hospital because there were episodes of fetal decelerations in his absence, and that an emergency C/S would have prevented a 7-minute episode of asphyxia that allegedly caused neurologic damage and led to the child's ADHD.

The physician contended that having a qualified labor and delivery nurse attend to the patient was proper under the standard of care because he was only a short distance away, an emergency C/S was not indicated, the child made a full recovery and suffers no neurologic deficits from any incident during labor, and any ADHD was unrelated to labor and delivery. The hospital settled prior to trial for $25,000, and the jury found for the physician.

Blood vessel lacerations during laparoscopy

A 25-year-old Indiana woman entered the hospital for what was expected to be a routine laparoscopic oophorectomy. When the gynecologist had difficulty grasping the ovary, he made a second incision, inserted a trocar, and tried again. The trocar lacerated the patient's iliac artery and vein, and her bowel. She had severe bleeding and a cardiac arrest, and other surgeons were summoned to repair the damage. The patient went to the ICU for 3 days and remained in the hospital for 12 days. She subsequently developed coagulopathy and continues to take blood-thinning medication.

The woman sued, claiming that the physician had been working at the wrong angle and failed to identify and avoid blood vessels. A medical review panel concluded that the woman's injuries were a complication that can occur in the absence of negligence. The physician also argued that the trocar was faulty and that the shield had fallen off but the disposable instrument had not been saved after surgery. In a pre-trial ruling, the judge ruled that the physician was not qualified to testify as an expert on the trocar, because even though he was experienced in using it, he knew nothing of how it had been manufactured. It took 10 years for the matter to come to trial and the jury deliberated 90 minutes before returning a $620,000 verdict for the patient.

Woman claims erroneous HELLP diagnosis

An Illinois woman at 33 weeks' gestation developed epigastric pain and significantly abnormal laboratory values. A diagnosis of HELLP (hemolysis, elevated liver enzymes, low platelet count) syndrome/preeclampsia was made. Accordingly, the physician induced labor to deliver a premature infant. The child subsequently developed necrotizing enterocolitis, resulting in multiple surgeries, an abdominal scar, and mild short bowel syndrome.

The mother brought suit, claiming that the diagnosis was incorrect, and that she actually had a lupus anticoagulant antibody syndrome. The physician contended that she properly diagnosed HELLP syndrome, and that the woman's signs and symptoms justified the decision to induce labor. The jury found for the defense.

Woman claims excessive traction caused Erb's palsy

The mother of a 7-year-old boy who has permanent weakness in his left arm brought suit against the delivering doctor. She claimed to have had a difficult delivery and alleged that the physician used excessive traction to dislodge the infant's shoulder and pull him out, resulting in Erb's palsy.

The physician and the assisting nurses said the delivery was uneventful and so routine they could not specifically remember it. The doctor claimed that if a shoulder dystocia and subsequent traction had been used, it would have been reflected in the medical record. He also argued that Erb's palsy can and does occur in the absence of negligence. The Indiana jury returned a verdict for the defense.

Complications from hysterectomy

A 41-year-old unemployed woman brought a lawsuit for injuries suffered during a hysterectomy that had been performed by her gynecologist at a New York medical center in 1998. She had a history of repeated episodes of congestive heart failure, had been disabled due to a previous back injury, and had developed an addiction to prescription pain medication. She also suffers from multiple sclerosis and lupus.

The woman claimed that she has permanent injuries, including a vesicovaginal fistula, urinary retention, painful urination, vaginal shortening, and sexual dysfunction. She contended that these complications necessitated two lengthy hospitalizations for two additional surgical repair procedures. She also required a 1-week admission to a psychiatric hospital. The woman also claimed lack of informed consent and that the physician altered documents related to consent.

The physician argued that a hysterectomy was appropriate, the procedure was properly performed, and a fistula is a known complication of the surgery. The defense introduced evidence of the woman's prior cocaine use in an effort to impeach her credibility on the issue of informed consent. The jury returned a unanimous defense verdict. An appeal was expected.

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

Sep. 1, 2003;48:30-32.