NOTABLE JUDGMENTS AND SETTLEMENTS IN BRIEF
Defense denies dystocia, says baby was “hung up”
<court>Cook County (III) Circuit Court</court>
Shortly after vaginal delivery of a 9 lb 7 oz infant by a 31-year-old woman, the infant was found to have a fractured clavicle, a limp right arm, and bruising on the upper shoulder and back. The physician’s notes stated the delivery was normal, with no shoulder dystocia and no difficulties. The physician allegedly advised the parents that the infant had a “stretched nerve” that would resolve over time, and that nerve injuries took a long time to heal.
After 3 years, the child was diagnosed with brachial plexus injury, arm shortening and weakness, and dexterity problems. The child had had 2 corrective surgeries, and further surgeries and physical therapy were expected to be necessary throughout her life. The plaintiff claimed the shoulder dystocia was a result of excessive traction by the physician, and that the physician failed to recognize the shoulder dystocia and take appropriate action.
The physician insisted the natural propulsive forces of labor caused the injury. He denied encountering shoulder dystocia, although he stated on cross-examination that the baby got “hung up” during delivery.
- The jury awarded the plaintiff $3 million.
Resident lacerates infant’s forehead
<court>Queens County (NY) Supreme Court</court>
A 26-year-old woman was admitted with labor pains and was attached to a fetal heart monitor. Because the fetus had mild tachycardia (<170 bpm) with nonreassuring fetal heart tracings, the woman was advised the fetus would be in danger unless a cesarean section was performed. After an attempt at an epidural, she was given general anesthesia.
The obstetrician made a Pfannenstiel incision and a third-year resident made the uterine incision, lacerating the forehead of the fetus to the bone. The laceration was 5 cm long and required 30 stitches immediately after birth.
The woman asserted she was not advised until moments beforehand that a cesarean section was to be done, and that she was never told that a resident would make the uterine incision. She also claimed negligence on the part of the obstetrician for failing to perform an internal exam to assess the thinness of the uterine wall.
The physician argued the high fetal heart rate necessitated a cesarean section, which became an emergency when general anesthesia was given.
- The jury awarded the plaintiff $550,000.
Necrotizing fasciitis after c-section
<court>Suffolk County (Mass) Superior Court</court>
After a 34-year-old primigravida underwent a cesarean section, a surgical incision and deep infection developed. Ten days after delivery, and after several readmissions for the infection, she was transferred to a teaching facility in critical condition, where necrotizing fasciitis was diagnosed immediately. Major debridement of the abdominal wall was repeated several times over the next 5 weeks, and her infected uterus was removed. Reconstruction was necessary to repair the abdominal wall and loss of skin.
The woman claimed negligence in failure to diagnosis postpartum endometritis; she maintained the physician had said the infection was under control just before transfer to the teaching hospital. She faulted the physician for failure to use the standard antibiotic treatment for endometritis, failure to promptly open and drain the surgical wound because of cellulitis, failure to switch antibiotics in the face of progressing infection, prematurely discharging her on 2 occasions, and failure to recognize and treat necrotizing fasciitis despite skin hardening and other classic signs.
The physician contended that necrotizing fasciitis is rare and difficult to diagnose due to its similarity to other infections, and that it developed either just before or during transfer out of his care. The defense maintained the woman was always on antibiotics in consultation with infectious disease and wound care experts.
- The case settled for $500,000.
Finger-pointing after high-risk birth
<court>Orange County (Calif) Superior Court</court>
A woman with gestational diabetes, pregnancy-induced hypertension, preeclampsia, fetal prematurity, and intrauterine growth restriction was admitted at 36 weeks’ gestation to a hospital for induction of labor. She was seen by a physician at 5, 14, and 23 hours after admission.
During the induction, fetal monitoring strips became nonreassuring. The on-call OB was allegedly contacted 3 times by the labor-delivery nurse, but he was delivering a series of infants at another hospital. The nurse then contacted the back-up OB, who arrived 40 minutes later.
Delivered by vacuum extraction, the infant had Apgar scores of 6 at 1 minute and 7 at 5 minutes; cord blood pH was 7.15. The infant had seizures in the NICU and brain imaging evidence of subdural and subarachnoid bleeding and an enlarging clot in the transverse sinus and in the superior sagittal sinus. A month later at discharge, the infant was diagnosed with severe cerebral palsy.
In suing, the woman claimed that her complications should have warranted closer monitoring to ensure a safe trial of labor. She also contended the on-call OB should have arranged for the back-up OB to see her.
The nurse testified that she faxed fetal monitor strips twice to the on-call OB and twice asked him to come see the woman. The on-call OB asserted that only 1 fax was received and denied being asked to come to the woman’s bedside before 2:35 AM. The defense denied the standard of care required a physician be at the woman’s bedside prior to 3:00 AM.
- The case settled for $5.25 million ($1 million from the hospital and the rest from the physicians).
Drug abuse at fault, not lack of tocolytics
<court>Maricopa County (Ariz) Superior Court</court>
A woman presented at 27 weeks’ gestation with complaints of cramping and spotting. The nurse reported to the physician that the woman stated she was not having contractions and that an hour on a fetal monitor revealed no contractions. Therefore, the physician advised the nurse to discharge the patient.
The woman returned an hour later, however, and vaginal examination revealed that delivery was imminent; she underwent a cesarean section delivery. The infant was noted to have respiratory problems, a bowel perforation, and retinopathy of prematurity. After discharge the infant failed to thrive and was diagnosed with bronchopulmonary dysplasia, cerebral palsy, cortical blindness, and severe mental retardation. The child has required nutrition via a gastrostomy tube since age 3.
In suing, the plaintiff claimed the physicians failed to examine the mother at her first presentation and administer tocolytic agents.
The defense denied the woman was having contractions and asserted that she had an incompetent cervix, and that the infant’s problems were the results of parental neglect and drug abuse.
- The jury returned a defense verdict.
Phone call from nurse disputed in fetal injury
<court>Orange County (Calif) Superior Court</court>
A woman admitted in labor had an initial reassuring fetal heart monitor tracing, but as labor progressed, the tracings became nonreassuring. The labor and delivery nurse called the OB at home in the early morning hours. The fetal heart tracings deteriorated further and the OB was called again. He came quickly to the hospital, and by his arrival the fetus was in severe distress. There was an additional delay before the woman was transferred to an operating room for an emergency cesarean section.
The infant was born with hypoxic-ischemic encephalopathy, and cerebral palsy and global developmental delay ensued. The woman claimed the nurse (who worked for a nursing registry apart from the hospital) should have clarified the seriousness of the situation in the first phone call and that the OB should have gone to the hospital sooner. The nurse maintained that she had described the fetal heart tracing accurately in the first phone call. The OB denied hearing such a description.
- The case settled for $3.3 million ($930,000 from the OB, $950,00 from the nursing registry, and $1.45 million from the hospital).
Jury agreed ovarian cancer looked like perimenopause
<court>Cook County (III) Circuit Court</court>
A 47-year-old woman with a history of breast cancer at an early age presented to the emergency department complaining of heavy vaginal bleeding for 4 to 5 days, after no menstrual periods for 2 months.
The hospital emergency department physician ruled out neoplasm and diagnosed and treated her for dysfunctional uterine bleeding. She was referred to a gynecologist.
She saw her usual gynecologist the next day, who also diagnosed heavy periods and perimenopause. She also saw her internist several times over the next few months.
She returned to her gynecologist 4 months later with complaints of abdominal pain and urinary symptoms. A pelvic ultrasound, ordered to follow up a tender right ovary, revealed an ovarian cyst. Laparoscopy was recommended, which the woman refused, and she was told to return in 2 weeks. She did not return for 2 months; however, she did visit her internist twice during the interim, with complaints of bilateral lower abdominal pain and bloating. When she returned to her gynecologist, another ultrasound revealed bilateral ovarian cysts that had grown, and the woman was in substantial pain. Prompt surgery was recommended.
Surgery revealed stage IIIC grade III ovarian cancer. After a long course of chemotherapy, the woman died 2 years later.
The suit against the gynecologist and the internist alleged negligence in delayed diagnosis of the ovarian cancer, failure to take a proper history, and failure to have a high index of suspicion due to the woman’s known history of breast cancer. Had earlier ultrasound and a CA 125 blood test been performed, the cancer would have been diagnosed sooner and cure would have been more likely, the plaintiff claimed.
The defense contended the woman’s symptoms were consistent with perimenopause and not cancer, thus no ultrasound or CA 125 tests were necessary. It also argued that the woman did not follow the gynecologist’s recommendation for laparoscopy to examine the cyst when it was first found.
- The internist settled during the trial for $900,000. The jury returned a defense verdict for the gynecologist.
OB wins, hospital settles in sepsis, stillbirth case
<court>Bronx County (NY) Supreme Court</court>
When her amniotic membranes began bulging at 17 weeks’ gestation, a 30-year-old woman presented to a hospital, where her physician and a perinatal consultant recommended termination of the pregnancy.
She allegedly declined to terminate the pregnancy. Five days later she had a temperature of 104.4°F, a nosebleed, and bleeding at blood-draw sites. The physician prescribed ampicillin, clindamycin, gentamicin, and fresh frozen plasma. Blood tests revealed disseminated intravascular coagulation.
The fetus was delivered stillborn an hour later, and the mother suffered cardiac arrest 4 hours later and died of septic shock.
The petitioner for the deceased woman claimed the physician delayed delivery of the fetus, failed to administer effective antibiotics, and failed to consult an infectious disease specialist or a hematologist.
The physician contended antibiotics were ordered while culture results were pending.
- The hospital settled before trial for $1.25 million. The jury returned a defense verdict for the physician.
Uterine rupture in VBAC with oxytocin
<court>Unknown County (Mich) Circuit Court</court>
After a prior cesarean delivery, a woman and her physician agreed to deliver her second child by cesarean if she did not deliver by a certain date. In the event of earlier labor, she would have a 4-hour trial of labor.
She went into labor before the due date and was given oxytocin. During labor, which extended more than 4 hours, the uterus ruptured, resulting in hypoxic ischemia for the infant, who was born with mild learning disabilities.
In suing, the woman contended the physician should not have given oxytocin, should not have allowed labor to progress beyond 4 hours, and failed to recognize recurrent variable decelerations on the fetal monitor tracings. In addition, she claimed the physician did not examine her during the 5 hours of labor.
The physician countered that the woman was properly examined, monitored, and treated, and denied the child had evidence of cognitive impairment.
- The case settled for $2.25 million.
The cases in this column are selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.