Peter I. Bergé, PA, JD Bendit Weinstock, PA West Orange, NJ From Labor to Lawsuit: Case Studies in OB/GYN Malpractice
The Program • Tort Reform • Case studies • Take-home lessons
Advisory • Not a content expert • Not an OBG practitioner • Intent of the program
Healthy 6 y/o girl, abrupt onset of abdominal pain; vomits x 1 • To local community hospital ED • Hypotensive, tachycardic, tachypneic • Peripheral and circumoral cyanosis • Decreased level of consciousness
IV, two saline boluses 20 ml/kg • NG tube • Chest/abdominal films • CBCD, chem • Blood cx.
Abdominal films: large, dilated loops of bowel with air-fluid levels
ED doctor: boarded in EM/Peds • Arranges 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 home • 6 hours later: PICU calls surgeon to inform that they are doing CPR • Child dies in front of parents • Autopsy: necrotic bowel; malrotation • Parents under psychiatric care years later • Mother 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 issues • Prenatal testing • Perinatal Group B strep • Preterm labor • Improper fetal monitoring • Pregnancy-induced hypertension/preeclampsia
Common OB Causes of Action • Vaginal birth after cesarean section (VBAC) • Negligent neonatal resuscitation • Postdatism and prematurity • Genetic 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 procedures • Prescription of OCPs • Prescription 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 dates • Hx. of minor congenital defects in previous children • Presented 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 - 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 cerclage • Taken to surgery for C-section • Develops heavy bleeding during surgery • Told 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 again • Write down what you told them and give it to them • Write 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 - 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 POINTS • Tell 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 POINTS • Cover 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 pain • To ED if severe pain, heavy bleeding, shoulder pain • 911 if lightheadedness or passing out
OTHER COMMUNICATION POINTS • Document 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 Weinstock 80 Main St. Ste. 260 West Orange, NJ 07052 PBerge.email@example.com