LEGALLY SPEAKING

BY DAWN COLLINS, JD

RISK MANAGEMENT IN OBSTETRICS AND GYNECOLOGY

Patient alleges she was not advised

of likelihood of Down Syndrome
A MARYLAND WOMAN was seen by her obstetrician
during her pregnancy in 2006. She underwent a blood
test that indicated that the fetus had an increased risk
of Down Syndrome. The infant was born with Down
Syndrome and the woman sued the obstetrician, claiming
she was not informed of the risk during her pregnancy.
She claimed that if she had been told of the test results
and the increased risk, she would have terminated the
pregnancy. A defense verdict was returned.
LEGAL PERSPECTIVE In malpractice cases brought
on behalf of the child, where he or she is born with an
abnormality that could have been detected in utero, the
parent most often claims and must show that had she
known of the abnormality, she would have terminated the
pregnancy. The usual damages are then the "cost" of the
child living with the abnormality calculated over the course
of his or her lifetime. This lawsuit was filed and went all
the way through the litigation process to trial, although
the patient's chart contained documentation that she had
been informed multiple times of the increased risk of Down
Syndrome. The chart also reflected that an amniocentesis
had been recommended to her, but she did not obtain one.
The obstetrician relied on the patient's prenatal records,
and the suit was successfully defended.
I I II I I M i l l j

Failure to timely deliver infant

results in neonatal death
AN ILLINOIS WOMAN was admitted to a hospital for
delivery of her fourth child in 2002. Labor progressed
normally until the fetal heart rate showed signs of distress
late that night. The obstetrician performed an emergency
cesarean delivery. The infant was born severely
compromised and died about an hour later. In the lawsuit
that followed, the patient claimed that the doctor had
MS COLLINS is an attorney speciaiizing in medicai malpractice in Long
Beach, Caiifornia. She welcomes feedback on this column via e-mail to
dawncfree@gmail.com.

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JANUARY 2011

failed to properly assess fetal distress and failed to

perform the cesarean delivery in a timely manner.
The physician argued that the timing of the cesarean
delivery was appropriate and within the standard of care.
He maintained that the fetal heart monitor strips did not
indicate fetal distress for more than 5 minutes before the
procedure was ordered.
LEGAL PERSPECTIVE This suit was brought on behalf of
the deceased child's estate. It alleged negligence by both
the obstetrician and the hospital. The case eventually
proceeded to trial against the physician only and was
successfully defended: The jury returned a verdict in favor
of the doctor. However, the hospital had settled before trial
with the representative of the child's estate for $1,625,000.

Colon perforation during

hysteroscopic surgery
A 44-YEAR-OLD NEW YORK WOMAN underwent

hysteroscopic surgery in 2006. The procedure, involving

removal of polyps and a fibroid tumor, was performed
by her gynecologist.
During the procedure a
Modern Medicine
loop ligature device was
inserted into the uterus.
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Two days later it was
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determined that her colon
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had been perforated and
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she developed peritonitis.
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She required a resection of
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a temporary colostomy
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The woman sued her
gynecologist, claiming that the injury was due to the
physician pushing the loop ligature device through the
uterus, burning a hole in the uterus and the colon. She
claimed that the doctor should have performed a more
extensive check to ensure that no perforations had been
created.

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LEGALLY SPEAKING

The physician claimed that the perforation was a

delayed thermal effect that did not occur until 2 days after
the procedure and denied any negligence. A $1.55 million
verdict was returned.
1 1 1 11 I I I I I I I

Alleged misdiagnosis
of missed abortion
A GEORGIA WOMAN was seen by a physician in 2006 after
a positive home pregnancy test. A blood test confirmed
her pregnancy, but an ultrasound found no intrauterine
gestational sac, although a small amount of fluid was seen
in the uterus and was deemed to be an early intrauterine
pregnancy. Eleven days later she went to the emergency
department with painless vaginal bleeding and a
transvaginal ultrasound was performed. A gestational
sac and yolk sac were found in the uterus. The woman
reported no further bleeding or pain, but 3 days later
her obstetrician noted falling quantitative beta human
chorionic gonadotrophin levels and made a diagnosis of
missed abortion. The gynecologist prescribed misoprostol
and the patient was instructed to return in 2 weeks for a
D&C; however, she moved to Washington state and did
not return to her original obstetrician.
A few months later, she was seen by a Washington
obstetrician and was found to be 19 weeks pregnant and
leaking amniotic fluid. She was placed on bed rest for
almost 3 months and then delivered an infant by cesarean
section. The fetus had continued oligohydramnios, which
resulted in limb injuries and underdeveloped lungs. She
required intubation shortly after delivery, was diagnosed
with pulmonary hypoplasia, and required extensive
treatment in the neonatal intensive care unit. She also was
diagnosed with deficits in cognitive ability, fine motor
skills, and speech. The child had 2 hip surgeries as an
infant and was expected to require hip replacements over
her lifetime. A lawsuit was filed alleging negligence by the
original physician in the failure to perform further testing
and examination and confirm a viable pregnancy. The
defense maintained that the diagnosis of missed abortion
was not negligence; however, a
$4.5 million settlement was reached.
!I I ! ! M I tI

Was hysterectomy necessary?

A 44-YEAR-OLD INDIANA WOMAN sought a second

opinion regarding her Pap smear results in early 1997.

She consulted with a gynecologist and underwent a
colposcopy on her first visit, with normal results. About

6 months later she returned for a follow-up examination.

This time her Pap smear was abnormal and suggested a
low-grade lesion, which was confirmed by further tests.
She then underwent cryocautery and loop electrosurgical
excision procedures, but she continued to have abnormal
Pap smears. Ten months later the gynecologist offered the
patient the option of continuing conservative treatment
or undergoing a total hysterectomy and removal of her
ovaries. She chose surgery, which was performed, but
follow-up
Pap smears were abnormal over the next several months.
The patient then went to another healthcare provider and
was eventually diagnosed with human papillomavirus.
The woman sued the gynecologist and claimed that he
had never considered human papillomavirus as a possible
diagnosis and that if he had, the hysterectomy would not
have been needed.
The physician claimed that the actions taken were
proper based on the results of the Pap smear and that the
patient had chosen to undergo surgery. A defense verdict
was returned.

Neonatal liver laceration blamed

on difficult cesarean delivery
A MARYLAND WOMAN was under the care of her
obstetrician when she presented in premature labor. A
cesarean delivery was performed. During the operation
the obstetrician had difficulty extracting the fetus; when
she reached in to deliver the fetus, it floated away. A
second physician then attempted to deliver the fetus while
fundal pressure was applied. Multiple sonograms shortly
after birth discovered a liver laceration. Surgery to repair
the liver was unsuccessful and the infant subsequently
died. A photograph taken by the father
2 minutes after birth showed large bruises over the liver
area. The patient sued, alleging that a vertical rather than
a transverse incision should have been performed initially
because of the small size of the fetus and the uterus. In
addition, the suit claimed that when the fetus could not
be extracted, a "T" incision should have been made so
the fetus could have been extracted without trauma. The
patient alleged that the infant's liver ruptured from the
pressure used to effect delivery.
The defense claimed that the mother had a preexisting
disorder that caused her to bleed before delivery and that
the infant's liver laceration occurred hours after delivery.
A $1,461,507 verdict was returned, which included
$461,507 for the infant's estate and $500,000 each for the
parents.
JANUARY 2011

CONTEMPORARY OB/GYN

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