Legally Speaking: Weak link in chain of command leads to $23 million settlement

Dawn Collins, JD

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

Weak link in chain of command leads to $23 million settlement

A 34-year-old Illinois woman was admitted to a hospital in labor at term. She was diagnosed with hemolysis, elevated liver enzymes, and low platelet count (HELLP syndrome), with systolic blood pressures periodically in the 160–170 range. Following delivery, she still had periodic hypertension and decreased platelet levels. Although antihypertensive medication was administered, she suffered an intracranial hemorrhage. She was then transferred to another hospital for cranial decompression surgery. She suffered an anoxic encephalopathy and is now quadriplegic, aphasic, ventilator-dependent, and dependent on a G-tube for feeding.

In the woman’s lawsuit her attorneys faulted the individual obstetrician for failing to aggressively treat the high blood pressure and low platelet levels. They also claimed that the hospital’s nurses and supervisors were negligent for failing to follow the chain of command to obtain appropriate medical care.

The verdict

The case was settled for $23 million, with $22 million from the hospital and $1 million from the physician.

Analysis

Most hospitals have a chain-of-command policy that is used when emergency medical care is needed, either due to the absence of a physician or when a physician is not responding appropriately to the patient’s symptoms. A good policy should include not only who should be notified and in what order, but also the situations in which it will be employed.

In malpractice cases allegations of a failure to follow the chain-of-command policy often are made retrospectively, knowing the bad outcome and claiming that nurses had a responsibility to obtain additional medical care that would have prevented the patient’s injury. All caregivers should be aware of the requirements and situations in which their hospital’s chain-of-command policy should be employed.

Complications after bladder sling repair

A New York woman in her mid40s who suffered from stress urinary incontinence (SUI) underwent a bladder sling repair and hysterectomy performed by a urogynecologist. She subsequently sued the physician, claiming that the repair was negligently performed and the hysterectomy was unnecessary. She alleged that the tape used during the bladder repair was a mesh-type material and it migrated and protruded through the vaginal wall, causing permanent injury. She claimed this would cause her to suffer extensive permanent pain and require regular, embarrassing physical therapy.

The physician argued that the migration of the mesh is a known risk of this procedure and that the patient had given informed consent for the operation.

The verdict

The jury awarded the woman $500,000 for past pain and suffering, $350,000 for past lost income, and $3 million for future pain and suffering over 30 years, for a total of $3.85 million.

Alleged failure to diagnose pre-eclampsia

In 2003, an Illinois woman who was taking medication for chronic hypertension sought prenatal care for her pregnancy During her third trimester, she had a regular check up and was sent to the hospital for evaluation of her hypertension. Upon arrival she was scheduled to undergo a 24-hour urine test for protein and an ultrasound to check on the fetus. However neither of the tests was completed and the woman was discharged the following day after a physician told her that she was not showing signs of pre-eclampsia. Although the woman returned to the hospital the following week, no 24-hour urine testing or ultrasound was performed. Two days later, fetal heart rate (FHR) monitoring indicated that the fetus was in distress and a cesarean delivery was performed.

At age 6 months, the child did not respond well to stimuli, had difficulty moving, and was not turning himself over from stomach to back. Magnetic resonance imaging showed that the child had cerebral palsy. Now aged 12 years, the child can sit and stand upright but can walk only a short distance. He lacks fine motor skills and cannot feed himself or dress independently.

The woman sued the obstetrician and his practice group, claiming that had the tests been completed as ordered, the preeclampsia would have been identified and treated, preventing the in utero distress to the fetus that led to the child’s permanent brain injury.

The physician denied any liability.

The verdict

The case settled prior to trial for $5 million.

Delay in performing cesarean results in injury

A 16-year-old primigravida presented to a District of Columbia hospital in labor at 40 weeks, 2 days’ gestation. She was examined and found to be 5 cm dilated, -2 station, with a FHR of 140 bpm. Two hours later she was 7 cm dilated, -2 station with bulging membranes. An epidural was placed. Six hours later, the woman had only progressed to 8 cm and was still at -2 station. Her membranes were artificially ruptured and oxytocin was started. An hour later she was still 8 cm, but at 0 station. Three hours after that, the woman was examined and was instructed to begin pushing. After an hour the physician determined that she was not pushing effectively due to exhaustion and delivery was accomplished with the assistance of a vacuum extractor. The infant’s Apgar scores were 3 at 1 minute and 8 at 5 minutes with an initial blood gas pH of 7.25. At 6 hours of life the infant began desaturating and showing evidence of seizures. Intubation was required and a computed tomography scan without contrast later that day showed evidence of a subdural hemorrhage overlying the left posterior falx and a cephalohematoma over the right parietal bone with superimposed soft tissue swelling over the scalp. An MRI a week later showed diffusion involving the right cerebral hemisphere. A month later, an MRI revealed extensive cystic changes of the cerebral hemisphere. Physicians concluded that the infant suffered neonatal encephalopathy and developmental delays. He is unable to control his movements or bodily functions, cannot sit or stand unsupported and has ongoing seizures despite medication and profound cognitive delays.

The lawsuit that followed claimed that the defendants failed to diagnose an arrest of labor and a failure to progress due to cephalopelvic disproportion and failed to perform a cesarean delivery after a 6-hour arrest of dilation. The woman also claimed that the use of the vacuum extractor was premature and contraindicated because she had pushed for only 30 minutes. She claimed that the infant suffered trauma to his head from a combination of prolonged labor in the face of cephalopelvic disproportion and use of the vacuum, leading to traumatic brain damage.

The physicians denied liability, claiming that there was no cephalopelvic disproportion because the mother was fully dilated and 0 to +1 station. They also claimed that use of the vacuum was proper due to maternal exhaustion. They further suggested that the infant's injuries predated the onset of labor.

The verdict

The case settled for $4 million.

Ureter injury after bladder repair during hysterectomy

A New York gynecologist performed a hysterectomy on a woman in her mid 50s. During the procedure a surgical sponge was unaccounted for. The physician performed a cystoscopy to examine the bladder and repair a tear that occurred during the hysterectomy. The gynecologist failed to notice that the ureters had been sutured closed during the bladder repair. The patient sustained damage to both kidneys and now suffers from both frequent urinary tract infections and SUI. Additional hospitalizations and extensive pelvic floor therapy for the incontinence were necessary.

The woman sued the physician, the hospital, and the gynecologist.

The verdict

The case settled for $1 million, with $900,000 from the physician and $100,000 from the hospital.

Failure to perform cesarean for breech presentation

A New Jersey woman was admitted to the hospital with ruptured membranes at term. The obstetrician ordered induction of labor when the woman did not go into labor on her own. He also deferred vaginal exams in order to avoid infection. Induction was begun and meconium-stained amniotic fluid was noted. Several hours later, it was determined that the infant was breech and, when delivered, she was limp, had no respirations, and a heart rate of 50 bpm. The infant was resuscitated by the pediatrician but sustained severe brain damage.

The patient sued those involved with the delivery and alleged that the nurse failed to detect that the infant was in a breech position, which allowed the labor to progress rather than a cesarean delivery to be performed, which would have prevented the brain injury. She also claimed that although the obstetrician did note a breech position prior to the delivery, he should have performed a cesarean delivery rather than allowing a vaginal birth. She further alleged that everything that was done during the entire ordeal was done either too late or too early, and that none of the defendants communicated to each other at all, much less in a timely manner.

The defendants denied any wrongdoing and argued that everything was done in a timely manner and according to the standard of care.

The verdict

A defense verdict was returned.

Bladder perforation during hysterectomy

A woman in her 40s was admitted to a New Jersey hospital for an elective hysterectomy performed by her gynecologist. The patient began to bleed postoperatively and it was determined that her bladder was perforated during the procedure. A second operation was performed in order to repair the bladder injury.

The woman sued the gynecologist, alleging that the physician was negligent in causing the bladder perforation and in failing to recognize the injury in a timely manner.

The gynecologist argued that the bladder perforation was a recognized complication of the hysterectomy procedure. He further contended that the patient’s bladder issues were a symptom of a preexisting condition.

The verdict

A defense verdict was returned.