LEGALLY SPEAKING
Risk management in obstetrics and gynecology

'Expert' witness not current on laparoscopic surgery

In 1999, a 38-year-old Alabama woman underwent laparoscopic tubal ligation as an outpatient. When she went to an emergency room 2 days later with gastrointestinal complaints, exploratory laparotomy showed that her colon had been perforated during the earlier procedure. A colostomy was then performed; it was reversed 2 months later. While the patient's condition was serious for some time, she has recovered.

The woman sued the physician, alleging negligence in perforating her colon and failure to notice the damage during surgery, which led to sepsis. At the trial, which began in early 2003, the patient's expert witness (licensed in another state) offered testimony as proof that the perforation was below the standard of care. The defense moved to exclude this witness's testimony because he had last performed surgery in 1983. The trial court judge agreed and also denied a motion for mistrial and/or continuance made by the plaintiff. Thus, because the patient lacked any expert medical proof of negligence, the court entered a directed verdict for the physician.

Legal perspective

Expert witnesses obviously must have expertise in the area about which they are testifying, but there are differing requirements and definitions of what "expertise" means and how remote or current the expert's "experience" must be. Some states require expert witnesses to be currently practicing the particular specialty or procedure about which they are opining, while others allow a window of time, beyond which the experience is too remote. In many states, however, the time periods are not specifically defined.

In the preceding case, the court used the criteria established in Alabama. That is, the expert must be "similarly situated" in knowledge of ob/gyn practice current with that of the physician/s involved in the case at the time of the alleged negligence. The defense based its argument on an Alabama case in which a nurse out of practice for 14 years was deemed "not similarly situated" as those involved. In the case presented here, the trial court ruled that because the expert had last performed surgery 20 years ago, the time gap negated his understanding of the practice of current surgical methods.

PROM at 27 weeks' gestation

A 24-year-old New York woman was admitted to the hospital with preterm premature rupture of membranes at 27 weeks' gestation. Four hours after admission, the fetal monitor showed variable decelerations and lack of variability. Three hours after that, a decision was made to deliver the baby by cesarean delivery (C/D). The operative report noted a chorioamnionitis smell to the baby, but no pathology report was in the chart. During the 5 months the infant was in the hospital, she was treated for respiratory distress syndrome, clinical sepsis, metabolic acidosis, and anemia. An U/S of the head on the day of delivery showed enlarged ventricles but no bleeding. Another U/S performed more than a month later revealed multiple scattered calcifications within the periventricular white matter. The infant was later diagnosed with mild cerebral palsy and mental retardation. She has limited speech and attends therapy and special education classes.

The mother sued the physicians and hospital, claiming a failure to diagnose and treat her infection, as evidenced by the PROM and an elevated white blood cell count on admission to the hospital. She also claimed a failure to properly monitor the fetal heart rate, which indicated fetal compromise, and failure to timely perform a C/D, in light of the nonreassuring FHR recorded 3 hours before the procedure. This action resulted in a $2.25 million settlement immediately before jury selection.

Unrecognized bowel perforation during oophorectomy

A lawsuit was filed after a 40-year-old Washington woman went to the hospital for a bilateral oophorectomy. During the procedure, the operating surgeon closed the surgical site without recognizing that he had perforated her sigmoid colon. The gynecologist and an on-call doctor treated the patient for 7 days without diagnosing or treating the abscess that had formed as a result of the perforation. On the 7th postoperative day, the bowel wall became necrotic, resulting in severe peritonitis. Although the woman was immediately taken into surgery, she suffered complications from the underlying peritonitis and from prolonged ventilator use during her stay in the intensive care unit. The complications included abnormal bone growth, intractable pain, bowel and bladder dysfunction, acute respiratory distress syndrome, and brain damage. She also had to undergo 13 subsequent operations, including several colostomies. She has been rehabilitated to the point where she can walk for short distances and climb stairs, but she still needs a wheelchair for longer outings. The parties settled for $6 million after 4 weeks of trial.

Precipitous birth causes hypoxic damage

A North Carolina woman, pregnant with her second child and at term, went to the hospital labor and delivery area with a complaint of contractions that had been 3 to 5 minutes apart for more than 1 hour. Electronic monitoring was started and a few minutes later the woman was examined by the obstetrician, who determined that she was 1-cm dilated and 50% effaced with the fetus at -2 station. The contractions became less frequent and the obstetrician told the woman and her husband that he was sending them home. They strongly protested because their home was more than 30 minutes from the hospital and because her first child had been a very rapid delivery once active labor commenced. The doctor insisted that they return home and that the woman take the two sleeping pills he prescribed. She was told to return to the hospital only if her water broke, bleeding increased, or her contractions became more frequent.

About 6 hours later the couple returned with contractions 3 to 5 minutes apart. Twenty minutes after arrival, the baby was delivered. Thick meconium was noted, but endotracheal suctioning was not done because the equipment was not available in the triage room. The baby was floppy in muscle tone and cyanotic with no spontaneous respirations or movements. The delivering doctor took the baby into the hallway, but medical records failed to document who rendered care to him for the next 20 minutes. The first note in the baby's hospital record stated that the baby had just arrived in the neonatal intensive care unit (NICU). A respiratory therapy note 5 minutes later stated that the baby had been intubated prior to admission to the NICU, but the tube had dislodged during transport there.

Records indicate that the baby was reintubated 10 minutes after admission to the NICU, and a chest x-ray performed 12 minutes later to check for tube placement revealed that the endotracheal tube had been placed down the right mainstem bronchus and the left lung had collapsed. The endotracheal tube was not repositioned immediately and needle aspiration to correct the pneumothorax was not performed until after the endotracheal tube was repositioned. At 2 hours of age the infant began experiencing episodes of bradycardia and at 6 hours the infant developed episodes of blank, unresponsive stares. Phenobarbital was started at 13 hours of age, following observation of abnormal tongue movements. Radiology studies thereafter were consistent with a diffuse hypoxic insult.

A lawsuit was filed against the obstetrician and the parties reached a settlement of $1.225 million.

Brachial plexus injury

An Illinois woman claimed that her obstetrician applied excessive downward traction on her child's head after encountering a shoulder dystocia during delivery. She alleged that he used forceful traction instead of the standard maneuvers to free the shoulder, which caused a permanent brachial plexus injury. The child underwent one operation and has somewhat limited external rotation and a shorter, thinner arm on that side.

During the lawsuit, the physician claimed he followed the standard of care by using a McRoberts maneuver, and proceeded to deliver the baby. Returning a verdict for the mother and child, the jury awarded them approximately $1.3 million.

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

Jul. 1, 2003;48:24-27.