50 Shades of Malpractice

Mark Crane

Disclosures

February 27, 2017

In This Article

Dangers of Medical Equipment; Phone Advice Is Risky

Oregon

New cutting-edge medical equipment can be exciting and very useful, but it may also carry big risks.

A jury found that a gynecologist committed malpractice when he used a da Vinci surgical robot (Intuitive Surgical, Inc.; Sunnyvale, California) in a 2007 procedure that removed a patient's healthy ovary and left a piece of plastic in her body.

Suffering pelvic pain, the woman consented to the removal of her right ovary, fallopian tube, and appendix, according to a report in the Medford Mail Tribune. A pathology report found that the organs were normal.

The robotic device malfunctioned during the procedure, according to hospital records. More than 3 years after the operation, foreign objects were revealed in the patient's body during CT. A laparoscopy sheath, plus extraneous coils used as birth-control devices, were removed from her pelvis. Until that time, she had been unaware of the foreign objects. Gynecologist Dr Daniel H. Laury hadn't been informed of any damage to the robotic equipment, according to trial testimony.

A jury in 2013 awarded the woman $10,500 in medical expenses and $100,000 as compensation for physical pain and mental anguish. Jurors denied her husband any payment for loss of consortium due to his wife's diminished health.

Pennsylvania

Giving advice over the phone can be dangerous to doctors. A first-time pregnant woman complained to her obstetrician about swelling, headaches, and abdominal pain. The doctor told her over the phone to take acetaminophen.

It was unknown whether the woman ever took the painkiller, said her attorney Dion Rassias of the Beasley Firm in Philadelphia. The open bottle was beside her body when she was found unconscious on her kitchen floor after having a seizure and stroke owing to undiagnosed and untreated eclampsia.

The woman was rushed to the hospital for an emergency cesarean section, but at that point, the baby she was carrying had already suffered from a lack of oxygen. The hypoxia caused damage to the child's brain, and she now has cerebral palsy.

During a 2-week trial in 2012, the mother's attorney argued that her complaints warranted further evaluation by the obstetrician to make sure her blood pressure was acceptable. The jury awarded the family $3.75 million.

Rhode Island

Proper training makes the difference, and it's important to be sure that you're trained for any procedures that are within your purview and might be required. A pediatrician's lack of training and his delay in contacting a tertiary hospital for assistance led to an infant's severe brain injury.

A baby was delivered by a planned cesarean section at a community hospital. The girl was active but extremely pale. A hematocrit showed a very low volume of red blood cells, said plaintiff's attorney Miriam Weizenbaum in a telephone interview. "The baby needed a transfusion. Although a board-certified pediatrician was present, he was never trained in how to insert an umbilical venous catheter to administer the blood. No one at the hospital had ever performed one."

"They waited more than 2 hours before contacting a tertiary hospital for advice," she said. "Doctors there unsuccessfully tried to talk the pediatrician through the procedure while an emergency response team with a doctor and neonatal nurse drove in an ambulance 45 minutes to the hospital. The response team administered the blood and brought the baby to its facility. An MRI showed massive brain damage. That little girl is now 10 and in need of constant care."

"It's inevitable that newborns will need transfusions and resuscitation, but no one at this community hospital knew what to do," she said. "And they waited 2 hours before trying to get help. We sued the hospital and pediatrician. The case was settled just before trial for $4.5 million."

South Carolina

Typically, lack of knowledge of the law doesn't count as an excuse—and if either side doesn't conform to the legal or technical requirements, the case may be over. This lawsuit was an exception, however. Many malpractice cases are dismissed on esoteric legal technicalities, but the South Carolina Court of Appeals recently allowed a case to go forward because the plaintiff's legal mistakes weren't intentional.

The patient alleged that his physician prescribed an antibiotic that negatively interacted with medication he was previously prescribed. The results were complications that included bleeding, renal failure, and a lengthy hospital stay.

In South Carolina, plaintiffs must file a notion of intent (NOI) to sue that requires a mediation conference within 120 days. The patient didn't state in the NOI that the case was subject to mandatory mediation and didn't fill in the name of the proposed mediator. The plaintiff and doctor discussed collection of medical records but made no attempt to schedule the mediation conference.

On the doctor's motion, a trial judge dismissed the case with prejudice, meaning that it could not be filed again, because the plaintiff hadn't complied with the statue. The Court of Appeals reversed that decision, finding that dismissal wasn't warranted because the plaintiff's failure to include information about mediation wasn't made in bad faith, and that such a sanction was "too severe" for technical violations. That means the plaintiff will be allowed to proceed with the case.

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