Legal Review and Commentary: OB/GYN patient dies after egg harvest: $30 million verdict and settlements
By Jan J. Gorrie, Esq.
Buchanan Ingersoll Professional Corp.
Tampa, FL
News: After a year of being unable to conceive a child, an obstetrician and her obstetrician husband sought fertility treatment, which led to her undergoing an egg-harvesting procedure. The procedure led to uncontrolled internal bleeding in part because she was taking aspirin and heparin to treat her antiphospholipid antibody syndrome (APD). Once the bleeding became apparent, the husband had her transported to the hospital where he worked and he performed emergency surgery. Despite the successful emergency surgery, the patient fell into a coma two days later and died nine days afterward. The husband brought suit against the treating obstetricians and hospital where he performed surgery, claiming that each in turn had failed to meet the prevailing standard of care. The hospital settled prior to trial for $5 million and the jury returned a verdict against the treating OB/GYNs for a combined $25 million.
Background: After trying to conceive a child for more than a year, an obstetrician and her husband, who also was an obstetrician, presented to an OB/GYN fertility specialist for treatment. Her primary OB/GYN recommended in vitro fertilization. The decedent’s ovaries were hyperstimulated, which allowed an increased number of eggs to mature at the same time. Before the oocytes were retrieved, the primary OB/GYN diagnosed the patient with APD, a condition that makes the implantation of embryos in the uterine lining difficult because the uterus is more susceptible to blood clots. The primary OB/GYN prescribed heparin and aspirin therapy. While the effects of heparin disappear within hours of taking it, aspirin’s ability to thin blood can stay in the body for weeks.
On Dec. 29, the patient underwent the egg-retrieval procedure at the referral defendant OB/GYN’s office and 18 eggs were harvested. The plaintiff claimed that the referral OB/GYN’s nurses were told of the primary OB/GYN’s administration of heparin and aspirin. A routine ultrasound was performed after the procedure but, according to testimony provided at trial, the referral physician never saw the results of the test after he was verbally told that everything appeared normal. Evidence of the ultrasound presented at trial indicated that the results actually showed a large mass, later determined to be blood, forming in her abdomen.
Following the egg-harvesting procedure, the patient drove from the referral physician’s office to the primary OB/GYN office for a previously scheduled treatment for her ADP. The treating physician’s nurse initiated the ADP therapy —heparin and aspirin — about 3½ hours after the egg-retrieval procedure had been completed. The patient then complained of unusual light-headedness and became pale. Her blood pressure dropped. The nurse immediately terminated the procedure and attempted to contact the primary OB/GYN. According to the testimony of the primary obstetrician’s nurse, it took 1½ hours for the physician to respond. By the time the primary OB/GYN examined the patient, she was lethargic and hallucinating. Her husband was contacted, and he immediately went to the primary physician’s office to see his wife. The husband determined that her condition was critical and had her transported to the hospital where he worked.
The husband performed emergency surgery and discovered that 75% of her blood had pooled into her abdomen. At trial, the husband testified that he removed several handfuls of blood clots.
The patient was in stable condition following the operation and appeared to be recovering for the next two days. However, on Dec. 31, her heart stopped beating. She lost consciousness and remained in a coma until her death nine days later.
The plaintiff claimed that, just prior to her death, the decedent’s nurse made no attempt to summon a physician even though the patient’s lungs were failing. As for the treating and referral physicians, the plaintiff averred that their treatment of his wife fell below the prevailing standard of care and that they should have communicated about her underlying complications. Specifically, as to the referral physician, the plaintiff contended that the physician prior to the patient leaving his office should have personally reviewed the ultrasound. The plaintiff also claimed that the primary OB/GYN should have responded more quickly to his office’s emergency call.
The defendant argued that the plaintiff’s actions were the sole cause of his wife’s death. The suit claimed that if the husband had taken his wife promptly to the nearest emergency room instead of the hospital where he practiced, she would have received treatment faster, possibly saving her life. It also claimed that the fact he operated on his wife showed that he reacted with distracting emotion and not skill in performing the emergency surgery. The plaintiff countered that the decedent was in the defendants’ care for five hours while she was bleeding, whereas she was only under her husband’s direct medical care for 15 minutes before he was able to successfully stop her bleeding. The defendant physicians also contended that the decedent and her husband were both well-trained physicians and should have been aware that aspirin would increase the probability of internal bleeding during the egg-retrieval procedures. They claimed that they were not liable because the decedent was informed of the inherent risks and chose to undergo the procedure anyway.
Prior to trial, the hospital settled with the plaintiff for $5 million. The jury in the trial against the treating and referral physicians returned a verdict awarding the plaintiff $25 million — half for wrongful death and half for pain and survival damages. The jury apportioned risk 50/50 between the defendant physicians.
What this means to you: Doctors certainly can be patients, and just because the patient happens to be one does not mean that medical professional liability will not occur. And, as always, physicians and health care facilities simply have to take patients as they find them regardless of their education and training.
"With that in mind, this case poses an interesting dilemma: Does the standard of care change when the patient is herself a physician of the same specialty as the treating and referring physicians?" says Ellen Barton, JD, CPCU, a risk management consultant in Phoenix, MD. "In addition, does the fact that the patient’s husband is a physician of the same specialty change the standard of care, especially as it relates to the need to communicate fully regarding the risks and benefits of procedures? I think the best way to answer the question is to say that the standard of care does not change; however, it is incumbent on the primary and referring physicians to understand that while the patient and her family may be more sophisticated consumers of health care, the basic responsibility to communicate fully and ensure the greatest possible understanding remains theirs since in this situation they are the professionals. Thus, while the conversations may be more technical and go into greater detail, it remains clear that the legal responsibility for the physician patient’s care remains with the treating and referring physicians."
Not only do physicians need to communicate effectively with their patients, but they also must communicate with each other particularly when one is the primary physician and the other is the referring physician.
"This case also points out the need for communication between the referring and primary physicians as the physician patient went back and forth between them for various treatments and procedures. While this case is in large part about the practice of medicine,’ there is also a large component of administrative’ breakdown. Not only did the defendant physicians not seem to share critical information regarding the patient’s condition and subsequent tests, but the referring physician’s failure to personally review the ultrasound reliance on a technician’s oral opinion that everything appeared normal’ falls below the standard of care. Thus, the protocols regarding response time by physicians to nursing staff in an outpatient setting should be reviewed so that a patient’s condition is not compromised by a lack of or tardy response, as seems to have been the case here," Barton says.
Finally, family members treating family is discouraged because of the chance of losing objectivity.
"The issues surrounding the patient’s physician husband performing emergency surgery is clearly an interesting one. And, while in this case, he may have saved her life — at least temporarily — hospitals should address this issue through the Medical Staff Bylaws and Rules and Regulations," concludes Barton.
Reference
- Tony Matteo, MD, as Adm. of the Estate of Suzanne Wester Matteo, MD v. Jerome Check, MD, and Admed Nazari, MD v. Tony Matteo, MD, Holy Redeemer Hospital and Nurse Newhall, Philadelphia Court of Common Pleas. Case settled. Thomas Kline, Esq., of Philadelphia, for the plaintiff.
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