The author reports no financial relationships relevant to this article.
The heightened risk of being sued for a poor outcome—even when you and the obstetric team have delivered excellent care—is a sad reality of ObGyn practice, especially when shoulder dystocia is involved. Not so long ago, some physicians viewed a lawsuit as one of the costs of doing business and considered settlement of claims to avoid disruption to their practice. Today, with insurance rates skyrocketing, settlement is not as palatable, unless a clear breach of the standard of care has occurred. And although only a small percentage of cases ever reach trial, and fewer still go to a jury verdict, don’t be lulled into a false sense of security. A single case can take 5 or more years to make its way through the system.
What can you do to avoid the appearance of negligence and prevent litigation? And what tangential actions on the part of the physician or staff can cast defensible cases into the abyss of negligence? This article addresses these questions, focusing on 10 keys to avert or win a lawsuit involving shoulder dystocia.
Before you begin. Here is one preliminary piece of advice: Be vigilant. Air crash investigators frequently note that a crash occurs when a number of small errors link together. To prevent a poor outcome, it is critical to be alert to even minor inconsistencies in the care you and the obstetric team provide so you can rectify the situation before the small errors link into a disastrous chain.
1. Don’t downplay the “D” word
There are three important rules in medicine: Document, document, document. Yes, you’ve heard many people stress the importance of good notation, and I can back them up: A well-documented chart is a defendant’s best friend. Time and again, I’ve heard defense counsel lamenting—and plaintiff’s counsel exhorting—“if it isn’t documented, it didn’t happen.”
Careful documentation begins early. If a child is expected to be large for gestational age (LGA) or macrosomic, clear documentation of that fact and a plan in the prenatal record to address it during labor and delivery is critical. It also is important to communicate the potential for a large infant to the labor and delivery staff. Consider using a stamp or other indicator to mark the prenatal chart for this potentiality.
Make it legible
Clear handwriting or typed notes add substantial benefit to the defense of a dystocia case. They also help prevent the uncomfortable silence that can overwhelm a courtroom as 12 jurors stare at a witness who is unable to decipher her own notes or those of a colleague. The inability to interpret a note is almost as damaging to a case as the complete lack of a note. If a detail is important enough to warrant documentation, it’s important enough to document legibly.
Sooner is always better
Any shoulder dystocia case that involves injury to the child—whether temporary or permanent—holds significant potential to blossom into litigation. It is important to document the diagnosis of dystocia, steps taken to resolve it, and the outcome—and to do so during the delivery or as soon thereafter as possible.
The importance of this recommendation cannot be overstated. A quick 8 pm summary of a delivery that took place at 1:30 pm is bound to be vague and, in some respects, inherently inaccurate. In contrast, a 1:45 pm note that consumes an entire page, noting the time of diagnosis, sequence of efforts to resolve the dystocia, use of vacuum or forceps, number of pop-offs, and who was present in the room is unquestionably superior.
Once mother and infant are stable and under the care of qualified personnel, take sufficient time—even as long as 1 hour—to draft your delivery note. Sit down. Calm down. Strive for clarity. The sequence and timing of events will be important.
The parents’ ability to recall the delivery will be blurred by emotion. If the case goes to trial, your well-documented note, combined with your accurate testimony, will have a significant advantage over what might be the understandably muddled recollections of the parents.