From Labor to Lawsuit: Case Studies in OB/GYN Malpractice

Peter I. Bergé, PA, JDBendit Weinstock, PAWest Orange, NJ

The Program

Tort ReformCase studiesTake-home lessons

Advisory

Not a content expertNot an OBG practitioner Intent of the program

Healthy 6 y/o girl, abrupt onset of abdominal pain; vomits x 1

To local community hospital EDHypotensive, tachycardic,

tachypneicPeripheral and circumoral cyanosisDecreased level of consciousness

IV, two saline boluses 20 ml/kgNG tubeChest/abdominal filmsCBCD, chemBlood cx.

Abdominal films: large, dilated loops of bowel with air-fluid levels

ED doctor: boarded in EM/PedsArranges transport to tertiary care

center for pediatric surgical consultation

Peds intensive care team/transport at ED within 1 hour of arrival

PICU resident on transport team: Third saline bolus Calls ahead to order abdominal CT

Child admitted to PICU; notations by nurses/resident of cyanosis and decreased LOC

Pediatric surgeon arrives (~10 PM Sunday) and assesses child

After fluid resuscitation, BP low normal, tachycardic, LOC WNL

Diagnosis: urosepsis vs. gastroenteritis

No further evaluation

Mother: why no CT?Surgeon goes home6 hours later: PICU calls surgeon to

inform that they are doing CPRChild dies in front of parentsAutopsy: necrotic bowel; malrotationParents under psychiatric care years

laterMother medicated and under

intensive treatment

Economic value of case?

Should he be sued?

Do the parents deserve redress?

You are the jury. . .

Common OB Causes of Action

Shoulder dystocia/brachial plexus injury

Ultrasound issuesPrenatal testingPerinatal Group B strepPreterm labor Improper fetal monitoringPregnancy-induced

hypertension/preeclampsia

Common OB Causes of Action

Vaginal birth after cesarean section (VBAC)

Negligent neonatal resuscitationPostdatism and prematurityGenetic counseling and testing

Potentially: ectopic pregnancy

Potential GYN Causes of Action

Delayed diagnosis of cancer Cervical Uterine Breast Ovarian

Failure to diagnose PID Injuries during fertility proceduresPrescription of OCPsPrescription of HRT

Case 1

59-year-old woman with hx. of triple vessel coronary disease in 2003, hysterectomy in 1991. Had been on hRT.

Despite recent developments, GYN continued hRT due to cardiac risk

Stopped for about a year, then re-started. Wanted to stop: cysts on every mammogram

Radiologist referred to “estrogen cysts”

Case 1

Believed that cysts “went away” during hiatus in therapy

In 2004 required excisional biopsy of lesion because radiography was equivocal

Benign cyst

Case 1

Claimed negligence: Improper prescription of HRT Product liability

Claimed injury Surgery (excisional biopsy) Increased medical monitoring

Case 1 - Analysis

Deviation from SOC (breach)?

Injury?

Causation?

Damages?

Outcome:

Case 2

December 2001: 24 –year-old gravida 5, para 3, TAB 1 presented to family practice for prenatal care

19-20 weeks gestation by datesHx. of minor congenital defects in

previous childrenPresented relatively late because

was not sure before that she wished to continue the pregnancy

Case 2

The baby was born with no arms.Not discovered because no U/S was

done.

Case 2 - Analysis

Deviation from SOC (breach)?

Case 2 - Analysis

Breach?

Injury?

Case 2 - Analysis

Causation?

Damages?

Decision:

Case 2 - Evolution

Case 2 - Resolution

Case 2 - Lessons

Stick to the schedule Immediately, clearly document

reasons for any variations from schedule

When something is missed, mitigate where possible

Case 3

January 2003: 27-year-old female with h/o incompetent cervix and two prior C-sections

On bed rest with cerclageTaken to surgery for C-sectionDevelops heavy bleeding during

surgeryTold afterward that a hysterectomy

was done Infant is fine

Case 3 - Analysis

Deviation from SOC (breach)?

Injury?

Causation?

Damages?

Outcome:

Case 3 - Analysis

Deviation from SOC (breach)?

Patient communication?

Case 3 - Analysis

Injury?

Causation?

Damages

Outcome

Case 3 - Lessons

Talk to your patients!Tell them, tell them againWrite down what you told them and

give it to themWrite in the chart that you wrote

what you told them and gave it to them

Case 4

2002. 20-year-old female comes under care of OBG (Dr. O).

While performing obstetric U/S Dr. O notes apparent cleft palate and cannot visualize eye sockets well

Dr. O. refers patient to MFM, Dr. U, for level II U/S

Writes on Rx. to look for cleft palate and eyes

Dr. U performs multiple views of cleft palate

Case 4

Dr. U does not examine or report on eyes

Infant is born with anophthalmia

Case 4 - Analysis

Deviation from SOC (breach)?

Injury?

Causation?

Damages?

Outcome:

Case 4 - Analysis

Deviation? Dr. O.:

Dr. U.:

Case 4 - Analysis

Injury? Wrongful birth case Child born without eyes Trauma to parents Expenses and special needs

Case 4 - Analysis

Causation? “But for. . .” Dr. O? Dr. U?

Case 4 - Analysis

Damages?

Case 4 - Resolution

Case 4 - Lessons

Have concrete, consistent, reproducible system for Tracking tests ordered Following up on results Contacting patients with results Documenting all of the above Attempts to reach patients should be

proportionate to the potential harm to the patient

Documentation should be extensive

OTHER COMMUNICATION POINTSTell patient what your concern is

Cancer, losing pregnancy, bleeding, etc. Use the words and document that you

did (do not leave room for patient to say that you didn’t tell her how serious it was)

Follow-up instructions need to be clear, detailed and individualized

OTHER COMMUNICATION POINTSCover contingencies: Call if. . . Come

back if. . . To ED if. . . Call 911 if. . .Call if problems with medication;

unexpected spotting or cramping. . .Come back if unexpected bleeding or

moderate painTo ED if severe pain, heavy bleeding,

shoulder pain911 if lightheadedness or passing

out

OTHER COMMUNICATION POINTSDocument all of the above If possible, keep a copy of what you

gave the patient

Thanks

Abbott Brown, Esq.You

For completing evals For your attention

Peter I. Bergé, Esq.Bendit Weinstock80 Main St. Ste. 260West Orange, NJ 07052PBerge.atty@yahoo.com