Medicolegal Issues

Fetal pathology exam performed without consent: $500,000 verdict


Fetal pathology exam performed without consent: $500,000 verdict

At 12 to 15 weeks' gestation, a fetus was found to have died. An ObGyn stimulated uterine contractions with misoprostol and the fetus was delivered.

The parents requested chromosomal testing to determine the cause of death. The ObGyn took samples of the baby's skin near the umbilical cord and from the placenta. He told the parents that the tests might come back as inconclusive, and that it may be necessary to take further samples. The couple was also told that, under hospital policy, the fetus must go to the pathology department before being taken to a funeral home. The parents told the ObGyn that they did not want further samples taken for any reason, and that nothing else should be done to their child before funeral preparations. The placenta, umbilical cord, and fetus were placed in 2 separate containers. The container with the placenta and umbilical cord had an anatomic pathology requisition form, indicating that a surgical pathology exam was to be performed. The container with the fetus did not have a requisition form. When the father accompanied the nurse who carried the containers to the pathology department, he told a general technologist that no additional tissue samples were to be taken from the fetus.

The next day, the pathologist made an incision on the fetus' left side and took a sample to create a slide for microscopic analysis. The parents discovered the incision at the funeral home.

PARENTS' CLAIM: The parents sued the hospital and pathologist. The pathologist was negligent in performing a surgical pathology examination without consent. The hospital had a duty to communicate the parents' desires to the pathologist.

According to hospital protocol, the nurse who attended the delivery was to fill out the proper forms and ensure that they were available to the pathologist. The container with the fetus should have had its own requisition form that instructed the pathologist to not perform any further testing. Every specimen that goes to pathology should have a requisition form, per guidelines from the College of American Pathologists (CAP). Without a form, the pathologist should not do anything with the sample.

The parents' verbal instructions not to take additional samples from the fetus were never relayed to the pathologist.

DEFENDANTS' DEFENSE: The hospital and pathologist denied negligence. A single requisition form was appropriate; the containers' labeling and the form made it clear that the placenta, umbilical cord, and fetus were from the same patient. CAP guidelines do not require separate forms. The remains were in the gross room at pathology, which is where specimens are taken for review and analysis. Therefore, the pathologist assumed he was to perform a standard pathology exam on both containers. The technologist with whom the father had spoken met the accepted standard of care.

VERDICT: A $500,000 Maine verdict was returned. The pathologist (through insurance) and the hospital equally shared payment of the award.

When should delivery have occurred? $4M verdict

Concerned that her fetus had stopped moving, a mother presented to the ED. Results of fetal heart-rate (FHR) monitoring ordered by the attending ObGyn (Dr. A) were nonreassuring. A second ObGyn (Dr. B) ordered a fetal biophysical profile (BPP); the score was 2 points. Although a low score usually results in immediate delivery, Dr. B consulted a maternal-fetal medicine (MFM) specialist. After another fetal BPP scored 8 points, the mother was discharged.

The next day, the mother called her ObGyn (Dr. C), who told her to immediately come to his office. A fetal BPP scored 4 points, with nonreassuring fetal heart sounds.

The mother was transported to the hospital for emergency cesarean delivery. At birth, the baby was blue, not breathing, and had meconium in his lungs. After 6 minutes' resuscitation, he began breathing. The child has an hypoxic brain injury.

PARENTS' CLAIM: Based on the nonreassuring FHR readings when the mother first reported lack of fetal movement, and a BPP of 2 points, an immediate cesarean delivery should have been performed. If the child had been delivered in a timely manner, he would have escaped a brain injury. At the very least, the mother should have been kept in the hospital for monitoring.

DEFENDANTS' DEFENSE: Drs. A and B and the hospital claimed that the child did not have a hypoxic injury; he had gastroschisis.

VERDICT: A $4,098,266 New York verdict was returned.

Second twin's birth delayed; brain damage: $1.5M settlement

A 35-year-old woman was 30 weeks' pregnant with twins when she was admitted to a hospital at high risk. At 36 weeks' gestation, she went into labor. A resident called the ObGyn to report that the patient was ready to deliver and waiting to push. The ObGyn advised that he was tied up in another procedure and for the mother to wait until he could get there.

Forty minutes later, the ObGyn arrived and the mother was allowed to push. A first-year resident delivered the first twin without incident. The second twin shifted from a cephalic presentation to a double foot- ling breech presentation and his FHR reflected severe bradycardia. Under the supervision of the ObGyn, a fourth-year resident managed the delivery, which took 28 minutes. The second twin's Apgar scores were low. He was intubated and transferred to a children's hospital for brain cooling.

PARENTS' CLAIM: Although excellent care following the birth reduced the degree of brain damage, the delay caused by the ObGyn's late arrival was responsible for the child's injuries.

PHYSICIAN'S DEFENSE: In pretrial findings, a panel of physicians reported that the child did not have a qualifying injury. However, the case settled before the trial began.

VERDICT: A $1.5 million Virginia settlement was reached.

Pregnant mother prepares for child's congenital heart disorder

A mother was told that her fetus had tricuspid atresia, a congenital defect. The mother and pediatric cardiologist developed a treatment plan to perform a balloon heart procedure at birth then transfer the baby to a specialized hospital.

After birth at a local hospital, the child was also found to have a lung disorder. He was promptly placed on a respirator. The hospital's pediatric cardiologist decided that the baby was too fragile to undergo the balloon procedure, and that the procedure could wait until the child was more stable. The baby died on his third day of life.

The neonatologists involved in treating the baby determined that the cause of death was tricuspid atresia. A pathologist reported that the death was due to a combination of congenital heart and lung disorders.

ESTATE'S CLAIM: The hospital team was sued for not following the prenatal plan. The baby's condition was serious but survivable if treated properly.

DEFENDANTS' DEFENSE: The hospital team made the correct decision to stabilize the baby's lung conditions before performing the balloon repair. The baby died because both his heart and lungs were compromised. The child's chance of survival was very small.

VERDICT: A Mississippi defense verdict was returned.

Severe uterine atony and PPH: hysterectomy

A 35-year-old woman at 41 weeks' gestation was admitted to the hospital in active labor at 5:45 am on July 26. At 2:45 pm, an ObGyn noted that she was 8+ cm dilated, 90% effaced, and that the baby's head was at -1 station. At 6:00 pm, the membranes were artificially ruptured. At 7:45 pm, examination revealed no change in her cervix. The ObGyn reviewed the options with the mother, including offering an epidural and cesarean delivery. At 8:30 pm, an intrauterine pressure catheter was placed. The ObGyn noted an inadequate labor pattern and ordered augmentation with oxytocin. On July 27 at 12:50 am, examination revealed that the cervix was completely dilated and the baby's head was at +1 station. At 2:30 am, oxytocin was infusing at 12 mU/m. At 2:30 am, the patient began to push. By 4:30 am, oxytocin was running at 14 mU/m and the patient continued to push. At 5:00 am, the ObGyn noted no further progression of labor and recommended a cesarean delivery, but the mother wanted to push a little longer. At 6:00 am, with no further progress, the decision was made to perform cesarean delivery. At 6:40 am, the patient was transferred to the operating room and delivery occurred at 7:08 am. The baby weighed 9.5 lb.

The mother's uterus was closed and hemostasis was reached. However, uterine atony was persistent and did not respond to multiple doses of medication or uterine massage. Persistent atony led to postpartum hemorrhaging (PPH). The ObGyn used conservative methods to control the hemorrhage, including medications and sutures. He then called for assistance from another ObGyn, and performed ligation of the utero-ovarian ligaments and additional suturing, which had no effect on the bleeding. They attempted an ovarian artery ligation and placed additional sutures, but the PPH continued. The ObGyn recommended a hysterectomy to the patient and her husband, who agreed. A supracervical hysterectomy was performed. During the procedure, the left ovary tore and was removed.

PARENTS' CLAIM: The patient and her husband spoke at trial of their intention to have more than one child. They sued the ObGyn, her practice, and the hospital. The ObGyn was negligent in allowing labor to continue for too long, for using oxytocin to stimulate contractions, and for allowing the patient to push for several hours, given that the baby was large. Oxytocin stimulation for so many hours without labor progression created an unacceptably high risk of uterine atony. This led to a nonreversible atonic state after delivery, which caused the patient to lose her uterus, left ovary, and her ability to reproduce.

DEFENDANTS' DEFENSE: The ObGyn was not negligent. The ObGyn met the standard of care in the management of labor and delivery. She was attentive, present at appropriate intervals, and there was no point at which a different decision should have been made. The ObGyn allowed the patient to have input in the decision-making process, as long as the ObGyn was comfortable that the decision was not compromising the safety of mother and baby. The length of labor and size of the fetus increased the risk of atony. However, in most cases, this does not occur; it can occur without those risk factors. PPH is a serious but frequently unavoidable complication of childbirth. The ObGyn's management was appropriate and prevented the patient's death.

VERDICT: A Pennsylvania defense verdict was returned.

These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska ( The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.

Share your thoughts! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Next Article: