Legally Speaking: Did standing order fail?

Ms Collins is an attorney specializing in medical malpractice in Long Beach, California. She can be reached at dawncfree@gmail.com.

A Kentucky woman was admitted to the hospital in 2007 to deliver a term infant. When her labor became prolonged, oxytocin was used to augment contractions. The infant was delivered and subsequently diagnosed with a hypoxic birth injury and cerebral palsy.

The patient sued those involved with her delivery and claimed that excessive oxytocin was administered and caused hyperstimulation of contractions. She also claimed that the nurses failed to inform the obstetrician of the fetal heart rate (FHR) readings throughout the afternoon of her labor.

The parties disputed who ordered the oxytocin, the physician claiming she had a standing order against using doses over 20 milliunits. The patient received doses of 22, 24, and 26 milliunits, which the nurses argued were based on the doctor’s oral orders. The doctor denied the nurses’ account and any negligence, arguing that had she known of the excessive oxytocin doses, she would have immediately delivered the infant. The hospital also denied negligence and noted that the oxytocin was administered hours prior to delivery and played no role in any fetal distress.

The verdict

The jury returned a verdict for the patient and awarded $18.3 million.

NEXT: Analysis >>

Analysis

This case is problematic for the defense for several reasons. One is that when juries see “dueling defendants” it signals to them that there was negligence, even though the disagreement may have nothing to do with the outcome of the case. Also, in malpractice cases involving the use or alleged abuse of oxytocin, the plaintiff’s attorney often will read the package insert to the jury members, who are left thinking that no reasonable person would ever use oxytocin. All procedures and protocols for the use of oxytocin at the time of delivery are also admitted in evidence and it is hard to explain any deviation from that procedure to the jury.

The procedure for administering oxytocin at this hospital is unknown, but there was obviously an issue with using doses over 20 milliunits and concerning whether there were standing orders against using that dose. During the trial of this case, the physician did not call any expert witnesses on her behalf. During the closing arguments the plaintiff’s attorney asked the jury to exonerate the physician and find fault with the hospital only, which they did.

Incorrect diagnosis of molar pregnancy alleged

An Alabama woman went to an emergency room with abnormal cramping and pain in the abdominal/pelvic region and vaginal discharge. A human chorionic gonadotropin (HCG) test and ultrasound were ordered. The patient had a positive pregnancy test and the ultrasound led to a diagnosis of a large endometrial mass highly suggestive of a molar pregnancy. An obstetrician was consulted and the patient’s HCG level was found to be 5,298 mIU/mL. The obstetrician felt that the patient had an early intrauterine pregnancy with threatened miscarriage. Four days later the patient returned to the doctor for blood work and a vaginal ultrasound. At that time her HCG level was 8,287 mIU/ml; a repeat test 4 days later showed a level of 22,911 mIU/mL. The obstetrician diagnosed a molar pregnancy and performed a D&C.

At the time of the D&C the patient’s HCG level was 29,157 mIU/ml. Three days after the D&C it was 44,958 mIU/mL. The woman then went to a second obstetrician for another opinion. He diagnosed an 8-week pregnancy and a fibroid tumor greater than 10 cm in her uterus. AT that time, the woman’sHer HCG level was 43,094 mIU/ml. Two weeks later the second obstetrician noted normal growth of the fetus. When the patient returned 2 months later, cardiac motion was detected but a decreased amount of amniotic fluid was noted. A 19-week fetus was stillborn when delivered that day.

The woman sued the first obstetrician and alleged negligence in performing a D&C. She argued that the D&C ultimately caused an incompetent cervix, which led to premature cervical dilation or rupture of membranes, which led to the stillbirth. The obstetrician denied any negligence in performing the D&C.

NEXT: The verdict >>

The verdict

A defense verdict was returned.

Claim alleges physicians failed to prevent preterm delivery

A Texas woman went to a hospital for preterm labor in 2009 at 24 weeks’ gestation. Attempts to stop labor were unsuccessful. The infant was delivered, transferred to another hospital's neonatal intensive care unit, and died less than a month later.

A lawsuit was filed against those involved with the delivery, alleging that they should have been able to stop the preterm labor. Several defendants were dismissed or settled the case with the patient. The case went to trial against the delivering physician.

The verdict

A defense verdict was returned.

Bladder perforation during hysterectomy

A 37-year-old New York woman underwent a hysterectomy. During the operation her bladder was nicked, causing a golf ball-sized hole. The gynecologist attempted to repair the bladder and applied a sling. The patient sued the physician and claimed the injury to her bladder caused life changes including pain, incontinence, diminished sexual function, and depression.

The doctor argued that the injury to the bladder was actually smaller than described and that the patient was made aware of the risks before the surgical procedure and, in fact, chose a hysterectomy rather than other options. The defense expert opined that the patient’s bladder issues were caused by interstitial cystitis.

The verdict

The jury found in favor of the defense.

FHR decelerations results in infant’s stroke

A 26-year-old Connecticut woman was referred to a maternal-fetal medicine specialist due to her diabetes, which had caused her to be hospitalized for nausea and dehydration several times during the course of her pregnancy. Fetal growth was normal for gestational age. At term the patient went into labor and fetal monitoring was started. After several hours it was noted that the FHR showed variable decelerations during contractions. When the doctor was notified she ordered an immediate cesarean delivery. A few days after delivery it was discovered that the infant had had a stroke.

In the lawsuit that followed, the patient’s expert witnesses said the cesarean delivery should have been performed some 5 to 7 hours earlier.

The verdict

A $3 million settlement was reached.

Lack of consent alleged for treatment of endometriosis

A California woman underwent surgery to remove an ovarian cyst. While performing the surgery the gynecologist noticed that the patient had endometriosis and elected to burn off the excess tissue. During the extensive burning, a major bleed necessitated placement of 5 large Ligaclips. The patient was sent home but returned to the hospital in pain. She was again sent home and then went to a different emergency room, where she was diagnosed with a blocked ureter due to the placement of 1 or more of the clips. The woman underwent a ureteroneocystostomy to repair the damage. She claims she now suffers from incontinence, ligated ureter, scar tissue, and the possibility that she will not be able to become pregnant in the future.

The woman sued those involved with the operation and contended that she gave the physician permission only to remove the ovarian cyst, not to perform any other procedures. She also alleged that the physician did not take the utmost care when performing the procedure near the ureter and that she should have consulted a urologist before or after the operation to check for injury.

The defense argued that when a patient agrees to laparoscopic surgery, she also agrees to exploratory abdominal surgery. The gynecologist claimed that when she normally does this type of operation, 30% to 60% of the time she burns off endometriosis, and that the practice was essential to stop the patient's abdominal pain.

The verdict

The jury found that the physician was negligent and that her negligence was a substantial factor in causing the patient’s harm. The woman was awarded future economic damages at present value, future medical costs at $32,500, other future economic damages at $14,500, and costs of $28,586.51, for a total award of $206,886.51.

Claim that delay in cesarean resulted in brain damage

A Missouri woman had an essentially normal pregnancy when, at near term, she complained of decreased fetal movement and was referred to the hospital for evaluation. FHR monitoring and a biophysical profile were performed, after which the decision was made to induce delivery. During labor the fetus began to show FHR decelerations and a cesarean delivery was performed. Despite good Apgar scores the infant had seizures and there was evidence of edema in the brain tissue.

The woman sued those involved with the delivery, claiming that because of the lack of fetal movement and the abnormal test results, a cesarean delivery should have been performed sooner, and that because of the delay, her child suffered brain injury.

The defense asserted that the physicians followed the standard of care, and that an attempt at vaginal delivery was reasonable. They contended that whatever caused the injuries happened before the patient came to the hospital.

The verdict

A defense verdict was returned.

Bowel perforation during hysterectomy

A 47-year-old Virginia woman underwent a complete hysterectomy to eradicate pelvic pain. Once the procedure began the physician noticed severe adhesions and concluded that the hysterectomy could not be done laparoscopically as had been intended. He then called on a trauma surgeon to remove the adhesions. After they were removed, he was then able to perform the hysterectomy by open surgery. The patient did well for 3 days, then developed symptoms consistent with bowel perforation, which was repaired.

The woman sued the gynecologist and claimed that he was negligent in placing an abdominal wall suture through her small bowel, which resulted in her suffering from an artificially induced coma and sepsis.

During the trial, a trauma surgery expert testified that the bowel perforation suffered by the patient was not from the hysterectomy, but rather, from the electrocauterization of adhesions, which was not performed by the gynecologist.

The verdict

A defense verdict was returned.