Lessons from a daunting malpractice event
The child was born severely handicapped. What really happened in this case, and why?
Legal considerations
Although ObGyns are among the specialties most likely to experience malpractice claims,17 a verdict of more than $33 million is unusual.18 Despite the failure of adequate care, and the enormous damages, the ObGyn involved probably will not be responsible for paying the verdict (see “Notes about this case”). The case presents a number of important lessons and reminders for anyone practicing obstetrics.
A procedural comment
The case in this article arose under the Federal Tort Claims Act (FTCA).1 Most government entities have sovereign immunity, meaning that they can be sued only with their consent. In the FTCA, the federal government consented to being sued for the acts of its employees. This right has a number of limitations and some technical procedures, but at its core, it permits the United States to be sued as though it was a private individual.2 Private individuals can be sued for the acts of the agents (including employees).
,Although the FTCA is a federal law, and these cases are tried in federal court, the substantive law of the state applies. This case occurred in Florida, so Florida tort law, defenses, and limitation on claims applied here also. Had the events occurred in Iowa, Iowa law would have applied.
In FTCA cases, the United States is the defendant (generally it is the government, not the employee who is the defendant).3 In this case, the ObGyn was employed by a federal government entity to provide delivery services. As a result, the United States was the primary defendant, had the obligation to defend the suit, and will almost certainly be obligated to pay the verdict.
The case facts
Although this description is based on an actual case, the facts were taken from the opinion of the trial court, legal summaries and press reports and not from the full case documents.4-7 We could not independently assess the accuracy of the facts, but for the purpose of this discussion, we have assumed the facts to be correct. The government has apparently filed an appeal in the Eleventh Circuit.
References
- Federal Tort Claims Act. Vol 28 U.S.C. Pt.VI Ch.171 and 28 U.S.C. § 1346(b).
- About the Federal Tort Claims Act (FTCA). Health Resources & Services Administration: Health Center Program. https://bphc.hrsa.gov/ftca/about/index.html. Accessed May 16, 2018.
- Dowell MA, Scott CD. Federally Qualified Health Center Federal Tort Claims Act Insurance Coverage. Health Law. 2015;5:31-43.
- Chang D. Miami doctor's call to broker during baby's delivery leads to $33.8 million judgment. Miami Herald. https://www.miamiherald.com/news/health-care/article147506019.html. Published April 28, 2017. Accessed January 11, 2018.
- Teller SE. $33.8 Million judgment reached in malpractice lawsuit. Legal Reader. https://www.legalreader.com/33-8-million-judgment-reached/. Published May 2017. Accessed May 16, 2018.
- Laska L. Medical Malpractice: Verdicts, Settlements, & Experts. 2017;33(11):17-18.
- Dixon v. U.S. Civil Action No. 15-23502-Civ-Scola. LEAGLE.com. https://www.leagle.com/decision/infdco20170501s18. Published April 28, 2017. Accessed May 8, 2018.
Very large verdict
The extraordinary size of this verdict ($33 million without any punitive damages) is a reminder that in obstetrics, mistakes can have catastrophic consequences and very high costs.19 This fact is reflected in malpractice insurance rates.
A substantial amount of this case’s award will provide around-the-clock care for the child. This verdict was not the result of a runaway jury—it was a judge’s decision. It is also noteworthy to report that a small percentage of physicians (1%) appear responsible for a significant number (about one-third) of paid claims.20
Although the size of the verdict is unusual, the case is a fairly straightforward negligence tort. The judge found that the ObGyn had breached the duty of care for his patient. The actions that fell below the standard of care included restarting the oxytocin, using the Kiwi vacuum device 3 times, and failing to perform a cesarean delivery in light of obvious fetal distress. That negligence caused injury to the infant (and his parents).21 The judge determined that the 4 elements of negligence were present: 1) duty of care, 2) breach of that duty, 3) injury, and 4) a causal link between the breach of duty and the injury. The failure to adhere to good practice standards practically defines breach of duty.22
Multitasking
One important lesson is that multitasking, absence, and inattention can look terrible when things go wrong. Known as “hindsight bias,” the awareness that there was a disastrous result makes it easier to attribute the outcome to small mistakes that otherwise might seem trivial. This ObGyn was in and out of the room during a difficult labor. Perhaps that was understandable if it were unavoidable because of another delivery, but being absent frequently and not present for the delivery now looks very significant.23 And, of course, the 8-minute phone call to the stockbroker shines as a heartless, self-centered act of inattention.
Manipulating the record
Another lesson of this case: Do not manipulate the record. The ObGyn recorded that the patient had refused the cesarean delivery he recommended. Had that been the truth, it would have substantially improved his case. But apparently it was not the truth. Although there was circumstantial evidence (the charting of the patient’s refusal only after the newborn’s condition was obvious, failure to complete appropriate hospital forms), the most damning evidence was the direct testimony of the L&D nurse. She reported that, contrary to what the ObGyn put in the chart, the patient requested a cesarean delivery. In truth, it was the ObGyn who had refused.
A physician who is dishonest with charting—making false statements or going back or “correcting” a chart later—loses credibility and the presumption of acting in good faith. That is disastrous for the physician.24
A hidden lesson
Another lesson, more human than legal, is that it matters how patients are treated when things go wrong. According to press reports, the parents felt that the ObGyn had not recognized that he had made any errors, did not apologize, and had even blamed the mother for the outcome. It does not require graduate work in psychology to expect that this approach would make the parents angry enough to pursue legal action. True regret, respect, and apologies are not panaceas, but they are important.25 Who gets sued and why is a key question that is part of a larger risk management plan. In this case, the magnitude of the injuries made a suit very likely, which is not the case with all bad outcomes.26 Honest communication with patients in the face of bad results remains the goal.27
Pulling it all together
Clinicians must always remain cognizant that the patient comes first and of the importance of working as a team with nursing staff and other allied health professionals. Excellent communication and support staff interaction in good times and bad can make a difference in patient outcomes and, indeed, in medical malpractice verdicts.
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