EMAIL TO A FRIEND COMMENT

 

Wrongful Death; Failure to Diagnose Incompetent Cervix


A 33-year-old woman became a patient at an obstetrics-gynecology practice when the woman was six weeks pregnant. The woman had two prior miscarriages and had previously undergone a loop electrosurgical excision procedure (LEEP) to remove abnormal tissue from the cervix. Undergoing a LEEP procedure can place a woman at risk for a medical condition known as an incompetent or insufficient cervix in which the cervix is too weak, without medical intervention, to support a pregnancy to term. Administering progesterone and/or performing a cerclage, a surgical procedure in which the cervix is sewn closed during pregnancy, were known treatments for cervical incompetence at the time.

 

At the woman’s initial visit, the woman provided a medical history to the OB/GYN. Because of the prior LEEP procedure, the OB/GYN ordered that ultrasounds be performed at an increased frequency throughout the woman’s pregnancy. The ultrasounds would show whether the woman’s cervix abnormally shortened in length and/or exhibited funneling, dilation at the internal orifice of the uterus with protrusion of the amniotic sac into the cervical canal, both of which are indicators of cervical incompetence and preterm delivery.

 

Over the course of the pregnancy, the woman’s ultrasounds showed a progressive shortening of the cervix. When the woman was 22 weeks and four days pregnant, the woman underwent an ultrasound that showed the cervix had shortened by 2.5 cm since the first ultrasound and the cervix exhibited funneling. The woman’s cervix was at a length that was considered critical and increased the risk of premature delivery (before 34 weeks) to greater than 50%. A baby born prematurely at 22 weeks has approximately a 10 percent chance of survival. Based on the ultrasound results, the OB/GYN told the woman to “take it easy,” not lift any heavy objects, and come back to the office in one week for an additional ultrasound.

 

Before the week was over, the woman began to have thick, dark vaginal discharge. The woman and the woman’s husband drove to the emergency room (ER). On the way to the hospital, the woman spoke by telephone with the OB/GYN on-call that night for the practice group. The on-call OB/GYN told the woman that the thick brown discharge was probably old blood from the ultrasound, that the hospital would likely send the woman home, and that the woman should just come for the woman’s scheduled office visit the following morning.

 

The woman and the woman’s husband decided to continue to the ER for evaluation. The woman was seen by a nurse from the labor and delivery department. The nurse took down the woman’s medical history, questioned the woman about symptoms, and conducted a vaginal examination. The nurse noted that the woman’s cervix was not dilated and that the woman was having no contractions.

 

The nurse called the on-call OB/GYN. The on-call OB/GYN did not come to the hospital and did not order any diagnostic tests. The on-call OB/GYN recommended that the woman continue bedrest and gave the nurse orders over the phone to discharge the woman from the hospital. The nurse told the woman that the on-call OB/GYN had diagnosed the woman with a urinary tract infection and checked the box on the discharge instructions for the woman to drink more fluids for such an infection.

 

After the woman’s discharge from the hospital, the woman experienced worsening symptoms throughout the night. Earlier the next morning, the woman called the on-call OB/GYN and reported the worsening symptoms. The on-call OB/GYN reiterated that he believed the woman had a urinary tract infection, that if the woman went to the ER again the woman would simply be sent back home, and that the woman should come to the office for the woman’s regular appointment at nine o’clock that morning.

 

The woman went to the obstetrics-gynecology practice for her 9:00 a.m. appointment. The woman was seen by a different obstetrician in the practice group, who examined the woman and ordered an ultrasound. The ultrasound showed increased cervical shortening. The obstetrician diagnosed the woman with possible incomplete cervix and recommended that the woman go directly to a maternal fetal medicine specialist. Before the woman could do so, the woman was sent to the hospital labor and delivery department due to increased complaints of pain.

 

At the hospital, the woman went into premature labor. The woman’s original OB/GYN delivered the baby by emergency cesarean section that night because of the fetus’s transverse (sideways) position. The infant was delivered at a gestational age of 23 weeks, four days. The infant weighed 1 pound, 4 ounces at the time of delivery. The infant died in the hospital neonatal intensive care unit due to extreme prematurity. The pathology report found no signs of infection. Postoperative hospital records listed the woman’s diagnosis as incomplete cervix. Urinalysis performed on the woman in the hospital tested negative for infection.

 

The following day, as the woman was recovering in the hospital from the cesarean section, the on-call OB/GYN wrote a physician progress note reflecting that the on-call OB/GYN had physically examined the woman. The woman and the woman’s husband had no recollection of the on-call OB/GYN ever coming into the woman’s hospital room that day. The on-call OB/GYN at some point after that note was originally made, struck through the entry and wrote, “error pt [patient] not seen[,] out of room,” followed by his signature. Other medical records prepared by a nurse on that date reflect that the woman and the woman’s husband had not left the hospital room.

 

Three days after the woman underwent a cesarean section, the on-call OB/GYN documented in physician progress notes that the on-call OB/GYN performed a physical exam of the woman that included listening to the woman’s lungs and bowel sounds with a stethoscope and checking the woman’s extremities for swelling. The woman and the woman’s husband testified that the on-call OB/GYN had seen the woman that day but had only lifted the woman’s surgical gown and looked at the surgical incision. The on-call OB/GYN discharged the woman from the hospital. The on-call OB/GYN’s discharge summary listed incompetent cervix as the clinical reason for the woman’s hospitalization.

 

The woman and the woman’s husband, individually and as administrators of the estate of their deceased infant, sued the on-call OB/GYN and the on-call OB/GYN’s practice group for medical malpractice and wrongful death. The complaint asserted that, in light of the woman’s medical history, symptoms, and ultrasounds, the on-call OB/GYN violated the standard of care by failing to go to the hospital to examine the woman on the day before the woman went into premature labor and diagnose her condition of cervical incompetence. The complaint argued that if the on-call OB/GYN and had gone to the hospital and properly diagnosed the woman with cervical incompetence, then the on-call OB/GYN would have been required under the standard of care to have a cerclage performed or administer progesterone to prevent preterm delivery. The complaint further contended that if the on-call OB/GYN had taken these steps, the woman’s pregnancy would have been prolonged and the premature delivery and death of the woman’s child would have been avoided.

 

The on-call OB/GYN and the practice group filed a motion in limine seeking to prevent the couple from presenting any evidence regarding the physician note written the day after the cesarean delivery. The couple responded that that physician note reflected false entries in the medical record by the on-call OB/GYN that were probative of the on-call OB/GYN’s character for untruthfulness and could be inquired into during cross-examination. The trial court denied the on-call OB/GYN and the practice group’s motion.

 

At trial, the couple presented the expert testimony of a board-certified OB/GYN who had delivered approximately 6,000 babies and performed more than 75 cerclages during the course of the expert OB/GYN’s career. This expert testified that, in light of the information available to the on-call OB/GYN about the woman’s medical history and condition, the on-call OB/GYN violated the standard of care by failing to go to the hospital and personally examine the woman the day before premature delivery, and by failing to properly diagnose the woman with cervical incompetence on that date. The expert further testified that had the on-call OB/GYN properly diagnosed the woman with cervical incompetence on that date, the standard of care would have required the on-call OB/GYN to have a cerclage performed on the woman or administer progesterone to prevent preterm delivery. The couple also presented evidence that all obstetricians are routinely trained to perform cerclages during medical school and that the on-call OB/GYN had been shown how to perform the procedure, although the on-call OB/GYN had not previously performed one on a patient. The couple’s expert testified with respect to the harm caused by the on-call OB/GYN’s failure to go to the hospital, diagnose the woman with cervical incompetence, and develop a plan to have cerclage performed. Specifically, the expert testified that, to a reasonable degree of medical probability and certainty, cerclage or progesterone would have saved the pregnancy.

 

The couple also presented expert testimony of a board certified pediatrician specializing in neonatal/perinatal medicine. This expert testified that cerclages can be performed on women from 16 weeks to 25 weeks of pregnancy and that a cerclage can increase gestation between two weeks and two months. Regarding infant survival rates when premature delivery is postponed, the expert pediatrician testified that from 28 weeks and about 2 pounds forward there was a 90% chance of survival.

 

At trial, the on-call OB/GYN and the practice group denied that the on-call OB/GYN violated the standard of care or that any treatments or interventions on the day before the premature delivery or on the day of the premature delivery could have avoided the outcome in this case. At the close of all the evidence, the on-call OB/GYN and the practice group sought a directed verdict on the ground that the couple had failed to prove that the on-call OB/GYN’s acts or omissions caused the premature delivery and death of the infant. The trial court declined to enter a directed verdict on the issue of causation.

 

The jury found in favor of the couple and awarded over $4 million in damages. Following the entry of final judgment on the jury verdict, the on-call OB/GYN and his practice group filed a motion for judgment notwithstanding the verdict and for a new trial, contending that the couple had failed to prove causation and that the trial court had erred in denying their motion relating to the physician note. The trial court denied the motion.

 

The Court of Appeals of Georgia affirmed. The court held that the trial court did not err in denying the on-call OB/GYN and the practice group’s motion for directed verdict and judgment notwithstanding the verdict and the trial court did not abuse its discretion by denying the on-call OB/GYN and the practice group’s motion in limine seeking to exclude any evidence of the physician note the on-call OB/GYN wrote the day after the premature delivery.

 

The trial court did not err in denying the on-call OB/GYN and the practice group’s motion for directed verdict and judgment notwithstanding the verdict. The court concluded that the couple presented evidence of causation and thus were entitled to have the jury decide that issue. The court recited the testimony of the couple’s expert obstetrician-gynecologist and expert pediatrician. The court found that the couple presented evidence from which a jury could find that if the on-call OB/GYN had followed the standard of care on the day before the premature delivery by having a cerclage performed on the woman or administering progesterone there was a reasonable medical probability that it would have postponed the birth of the woman’s baby to a point in time when the baby would have survived. The court concluded that the evidence did not demand a finding in favor of the on-call OB/GYN and the practice group on the issue of causation and the matter was properly submitted to the jury for resolution.

 

The trial court did not abuse its discretion by denying the on-call OB/GYN and the practice group’s motion in limine seeking to exclude any evidence of the physician note the on-call OB/GYN wrote the day after the premature delivery. A trial court may allow questioning about specific instances of conduct by a witness on cross-examination, if the conduct is probative of the witness’s character for truthfulness or untruthfulness. The court noted that the physician note was contradicted by contemporaneously prepared hospital records and the testimony of the woman and the woman’s husband. The court also noted that the on-call OB/GYN’s original charting and subsequent revision of the physician note occurred against the backdrop of the on-call OB/GYN’s having previously failed to examine and treat the woman the previous two days. The court found that, under those circumstances, the trial court was authorized to find that the jury could reasonably decide that the on-call OB/GYN’s physician note involved deliberate deception rather than a simple mistake. The court concluded that the trial court did not abuse its discretion by allowing the couple to cross-examine the on-call OB/GYN regarding the note for purposes of probing the on-call OB/GYN’s character for untruthfulness. The court also concluded that the trial court did not abuse its discretion in finding to the probative value of evidence regarding the physician note was not substantially outweighed by the danger of unfair prejudice. The accuracy of the on-call OB/GYN’s notes regarding the on-call OB/GYN’s interactions with the woman and the on-call OB/GYN’s character for truthfulness or untruthfulness were relevant and the trial court was authorized to strike the balance in favor of admissibility.

 

The Court of Appeals of Georgia affirmed the trial court’s denial of the on-call OB/GYN and his practice group’s motion for judgment notwithstanding the verdict.

 

See: Cent. Georgia Women’s Health Ctr., LLC v. Dean, 2017 WL 1929725 (Ga. Ct. App., May 10, 2017) (not designated for publication).

 

See also Medical Law Perspectives, April 2017 Report: Gestational Diabetes: The Effects on Mothers, Babies, and Providers May Not Be Sweet

 

See also Medical Law Perspectives, February 2016 Report: Problematic Procreation: Liability Risks in Diagnosing and Treating Infertility

 

See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability

 

 

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