Legally Speaking: Tubal ligation failure results in wrongful pregnancy claim

Dawn Collins an attorney specializing in medical malpractice in Long Beach, California. She welcomes feedback on this column via e-mail to dawncfree@gmail.com.

Tubal ligation failure results in wrongful pregnancy claim

A 39-year-old Illinois woman went to her gynecologist in 2008 for a tubal ligation. One of her 3 children had sickle cell disease and she did not want to have another child with the disease. She had experienced complications from other forms of birth control.

The patient’s history included 2 cesarean deliveries and, according to her statement, she had had a left salpingo-oophorectomy at a young age. An ultrasound done in 2004, however, indicated that the woman’s right ovary had been surgically removed and that a cystic interface had been identified on the left ovary at that time. 

The patient had been scheduled for a tubal ligation 3 years earlier, but it was not performed because she could not be intubated. Her gynecologist then recommended and performed a mini-laparotomy and tubal ligation under spinal anesthesia. During the operation the gynecologist identified a Fallopian tube and ovary on the right side, but because of a large amount of adhesions on the left side, he could not visualize a left Fallopian tube or ovary. A tubal ligation was performed on the right side, but the physician did not remove all the adhesions on the left side because of the patient’s representation that she had a left salpingo-oophorectomy.

Six months later, the woman had a positive pregnancy test and she later gave birth by cesarean to a child who was diagnosed with sickle cell disease. The physician who performed the cesarean did not find an ovary on the right side, but did find a tube that was shortened and wrapped around itself. He also took down the adhesions on the left side and found an intact left Fallopian tube and ovary. He ligated both tubes.

Also read: A young woman dies after routine tubal ligation

The patient had postoperative complications including a lung infection with surgical drainage, development of shingles, and post-herpetic neuralgia. She sued the gynecologist who performed the mini-laparotomy and alleged negligence in failing to properly evaluate her prior to the procedure, failing to actually perform a ligation on the right side, and failing to remove the left-side adhesions and discover the intact tube and ovary, resulting in the pregnancy.

The physician claimed that further evaluation would not have provided any new information and that the risks of taking down the adhesions outweighed the potential benefits.

The verdict

A defense verdict was returned.

Analysis

In a malpractice case claiming wrongful pregnancy, the suit is brought by the parent(s) and claims a physician’s negligence in performing a sterilization procedure resulted in pregnancy. The usual damages sought are the costs and any pain and suffering from the negligent procedure, and the costs, both economical and emotional, from the pregnancy and delivery. The parents can seek damages for the costs of rearing a child, but this issue is problematic for jurors as they weigh those “costs” against the joy or emotional benefit of having a child. In this case, the parents also claimed extraordinary expenses of raising a child with sickle cell disease-the exact condition they were trying to avoid with the tubal ligation-and although the physician sought dismissal of that claim, the trial court denied his motion. This decision was upheld on appeal, so those damages would have been allowed if the jury had found negligence by the physician.

NEXT: Loss of triplet pregnancy: What was the verdict?

Loss of triplet pregnancy

An Alabama woman who had difficulty becoming pregnant underwent in vitro fertilization in 2010 and became pregnant with triplets. She was followed by obstetricians at a university hospital. At 17 ½ weeks’ gestation she came to the hospital with vaginal bleeding. Her obstetrician examined her and concluded that she was in labor with the first fetus and that its amniotic sac was in the vagina. The patient was admitted to the hospital on complete bed rest in Trendelenburg position and started on antibiotics. On the day of admission, the obstetrician spoke to the patient and explained that it might be possible to save the other 2 fetuses even if the first fetus delivered. He also stated, however, that he believed that the likelihood of maintaining the pregnancy with fetuses 2 and 3 until viability was remote.

After a week the patient developed a high fever and exhibited signs of impending shock. An examination by a second-year obstetrical resident revealed a suspicion of chorioamnionitis, and the patient was transferred to labor and delivery, where an obstetrician delivered all 3 fetuses. The first was stillborn, and the other 2 died shortly after birth from severe prematurity.

Related: Should single embryo transfer be mandatory in women undergoing IVF?

The patient sued those involved with her delivery, claiming that the physicians failed to make proper efforts to save the second and third fetuses. She alleged that allowing the amniotic sac to remain in the vagina allowed the infection to progress.

The case went to trial against the second-year resident and the delivering obstetrician. Both denied any negligence in the patient’s management. They stated that the patient developed a life-threatening infection that necessitated emptying the uterus and that the infants were just previable.

The verdict

A trial resulted in a defense verdict for the resident and a mistrial for the delivering obstetrician. During a second trial, however, a defense verdict was returned.

Bowel injury following elective cesarean delivery

An obstetrician performed an elective cesarean delivery on a Texas woman in her mid-thirties in 2010. The patient was seen by that doctor the day after surgery, and by a partner on the second and third postoperative days. She was discharged on day 3 and, within 36 hours, developed a fever and became ill while at the pediatrician’s office with her daughter. The pediatrician’s staff placed the patient in a wheelchair and took her to the adjacent hospital’s emergency room. She was worked up for a pulmonary embolism, but tests were negative. A CT scan showed free air in the abdomen and emergency laparotomy was performed by a general surgeon with the obstetrician observing. An area of the cecum was inflamed and a small amount of bowel contents was found to be leaking. A primary anastomosis was performed to repair the bowel with no colostomy required.

The woman sued the original obstetrician, alleging negligence in injuring the cecum during the cesarean. She claimed that pressure from a retractor pinched and injured the bowel during the cesarean and the perforation developed over the next several days. She also alleged that the hospital staff was negligent in failing to properly document her condition and complications prior to discharge, claiming she had fever, tachycardia, and irregular bowel movements that indicated a cecum injury.

Injuries from known risks may lead to monetary awards

The hospital settled for a confidential amount early in the litigation. The obstetrician denied that the cecum was injured in the cesarean and claimed that the perforation was caused by Ogilvie’s syndrome. The physician also pointed to lack of contamination of the abdominal viscera at the time of laparotomy to support the claim that the perforation was acute and did not occur during the cesarean. In addition, the obstetrician noted that the retractor was not located anywhere near the cecum.

The verdict

A defense verdict was returned.

Failure to follow up fundal height discrepancy

A 37-year-old Massachusetts woman was pregnant with her second child and received prenatal care from her obstetrician. At 37 weeks’ gestation, it was noted that the fundal height was lagging gestational age of the fetus greater than 2 cm. At 39 ½ weeks she called the office to report decreased fetal movement. Because her treating physician was on vacation, the woman was evaluated by another physician in the group. A fetal heart rate (FHR) monitor showed a non-reactive tracing and the doctor advised her to drive herself to the hospital for evaluation. At the hospital the lack of variability in the FHR was confirmed and an emergency cesarean delivery was performed. The infant had no respirations initially and was treated by the pediatric team before transfer to the transitional care unit, subsequent intubation, and transfer to the neonatal intensive care unit (NICU). Cord blood gases confirmed metabolic acidosis. The child was ultimately diagnosed with dystonic cerebral palsy. He is unable to speak, walk, eat, or care for himself in any way.

In the lawsuit that followed, the patient alleged negligence in the failure to order any fetal testing after the fundal height discrepancy was found, claiming that testing at that time would have led to an earlier delivery and avoided the profound brain damage. She also alleged negligence by the pediatrician in failing to ensure adequate oxygenation after delivery by promptly transferring him to the NICU and immediately intubating him.

The physicians claimed that the fundal height discrepancy was explained by the position of the fetus in utero and that the pediatrician had acted heroically in saving the baby’s life after delivery.

The verdict

A $3.5 million settlement was reached.

Compartment syndrome in lower leg following delivery

A 45-year-old Washington woman was 42 weeks pregnant in 2010 when she was admitted to the hospital in labor after a failed attempt at a home birth. The baby was delivered about 4 1/2 hours after her arrival. The next day the patient complained of shin and leg pain, but was able to ambulate and dorsiflex her foot. On the morning of discharge, the patient was offered the choice to stay in the hospital for evaluation by a neurologist or discharge with outpatient follow up if her symptoms continued. The patient left the hospital. After she got home, her symptoms worsened, with increased swelling in her leg and foot, followed by inability to ambulate or dorsiflex her foot with color changes in the leg. She returned to the hospital and was evaluated in the emergency room and diagnosed with compartment syndrome of the right leg. That day, she underwent a fasciotomy. She continues to suffer foot drop, irregular gait, and right hip pain.

The verdict

A $3,500 settlement was reached.

Hemorrhage after cesarean results in maternal death

A Virginia woman went to a hospital in 2007 for delivery at 42 weeks’ gestation with ruptured membranes. Her obstetrician ordered oxytocin and labor continued through the day. A decision was made that night to deliver her by emergency cesarean; the patient was noted to have increased bleeding at that time. The bleeding continued and worsened after the cesarean. The patient went into hemorrhagic shock and died the next day.

A lawsuit was filed, claiming that the patient had uterine atony caused by the use of oxytocin, and that the obstetrician failed to appreciate the severity of the bleeding until too late. The suit also alleged that a hysterectomy should have been performed or blood products used in a more timely manner.

The case went to the jury against the obstetrician only, who maintained there had been a prompt response to the patient’s bleeding. He claimed that the death was due to an unpredictable, unpreventable, and irreversible amniotic fluid embolism, which triggered a global vascular coagulation problem.

The verdict

A defense verdict was returned. An appeal is pending.

Retained foreign bodies after alleged robot malfunction

An Oregon woman had worsening chronic pelvic pain when she went to a gynecologist in 2007 for a sterilization procedure. Five months later she consented to the surgical removal of her right ovary and Fallopian tube, as well as her appendix. The gynecologist performed the surgery using a robotic device. After the procedure, the pathology report stated that the ovary and tube were intact, functioning, and normal. The patient moved to Montana and continued to have pain and sought care there.

Read: Tracers, counts help in retained foreign body cases

A CT scan more than 3 years after the robotic procedure revealed that something plastic had been left in the patient’s body. An operation was performed and one full Essure coil, a non-fired coil, a second partial Essure coil, and a laparoscopy sheath were removed. According to the old records, the robotic device had malfunctioned during the original robotic surgery.

The patient sued the gynecologist who performed the robotic procedure.

Do we really need the robot?

The verdict

A $110,513 verdict was returned.

Claim that abdominal hysterectomy resulted in disfigurement

A 51-year-old Kentucky woman began treatment with a gynecologist in 2006 due to a prolapsed bladder. Conservative treatment was undertaken for a few months with no improvement, and a surgical approach was discussed. The patient later claimed she had wanted a vaginal procedure so she could return to work quickly, but the doctor persuaded her to undergo abdominal surgery by offering her an abdominoplasty. The physician denied that she offered a tummy tuck or that she even performed one. The operation was a hysterectomy, but the patient claimed it did not repair the bladder and rectal prolapse. The patient underwent 4 repair operations, including a repeat tummy tuck.

The patient sued the gynecologist and claimed that she had a disfigured abdomen and that the doctor was not licensed or credentialed to perform a tummy tuck.

The physician maintained that the operations were properly performed, that she did repair the bladder prolapse, and that the rectal prolapse was not repaired because it was asymptomatic at the time.

The patient countered the doctor’s argument that she had never performed a tummy tuck with testimony from a former patient who claimed that she had undergone the procedure by the doctor with resulting disfigurement.

The verdict

A verdict was returned in favor of the gynecologist.

Urosepsis in early pregnancy results in death

A 27-year-old Kentucky woman was pregnant with her second child in 2010. She received prenatal care from the obstetrician who had delivered her son a year earlier. She had pyelonephritis earlier in the pregnancy but it was otherwise uncomplicated until 19 weeks’ gestation, when she felt ill and complained of abdominal pain. She was taken to a hospital emergency room (ER). The nurses believed she was suffering a urinary tract infection and consulted with her obstetrician, who concurred with the diagnosis without seeing the patient. She was given antibiotic and pain medication before being discharged.

The patient was worse the next day and was taken back to the hospital. Urosepsis was diagnosed and a surgeon took over her care and performed emergency surgery. The fetus died during the operation and the patient coded at the end of the procedure. She was resuscitated, but suffered significant brain damage and died 4 days later when life support was removed.

In the lawsuit that followed, negligence was alleged against the obstetrician in failing to see the patient during the initial ER visit, given the woman’s history of pyelonephritis. The contention was that the patient should not have been discharged and that intravenous antibiotics would have allowed both mother and fetus to survive.

The obstetrician claimed that there was no negligence and that admission at the time of the first ER visit was not warranted, based on the reports from the hospital nurses. He also claimed that the 19-week fetus was nonviable and made a motion for summary judgment to drop claims related to the fetus, which was denied.

Related: Undiagnosed maternal infection or prematurity?

The verdict

Claims against the hospital resulted in a confidential settlement prior to trial. At trial the claims included those for the death of the mother and the fetus. The jury found the hospital 60% at fault and the obstetrician 40% at fault. A verdict awarding $7,440,000 was returned, although no damages for the fetus’ death were awarded. The net amount against the physician was $2,976,000.