By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
News: A woman who was 23 weeks pregnant visited a hospital for lower abdominal cramping and back pain. Testing did not reveal any signs of labor or placental abruption. Nevertheless, an attending physician believed urgent medical intervention was necessary and performed an emergency cesarean section, which resulted in the baby’s brain damage.
The patient and child filed a malpractice suit, and the defendant hospital and physician denied liability. A jury awarded the plaintiffs nearly $34 million, including $20 million for the child’s future medical expenses, $3 million for lost earning potential, $915,000 for past medical expenses, and $10 million for pain and suffering.
Background: In December 2018, a woman who was 23 weeks pregnant visited a hospital complaining of lower abdominal cramping and back pain. Providers performed tests that did not indicate any signs of labor or placental abruption. Instead, the operative note indicated the patient experienced no further documented contractions after her admission to the labor and delivery floor. During litigation, the plaintiff argued it is not uncommon for a patient with a cervical insufficiency to experience back pain, abdominal cramps, contractions like Braxton-Hicks, or uterine irritability.
Nevertheless, the hospital and attending physician believed an emergency cesarean section was medically necessary. The patient’s child was delivered but demonstrated signs of brain damage after the emergency delivery.
The patient, individually and on behalf of her child, filed a lawsuit against the hospital and physician. The patient alleged the providers misdiagnosed her and erroneously believed there was fetal distress. The patient claimed this constituted medical malpractice and directly resulted in the premature and unnecessary cesarean section that caused her child’s brain damage. The condition will require a lifetime of dependence on others for care and support, along with significant medical expenses. The patient also alleged the defendants failed to secure her fully informed consent and did not adequately inform her of the risks involved with the procedure.
The defendants denied liability and argued that without their emergency efforts, the child would not have survived. The defendants also claimed the serious medical complications, including placental abruption and preterm labor, risked both the lives of the patient and child, and there was no alternative but to deliver the child at 23 weeks gestation.
A trial proceeded over the course of two weeks. After only four hours of deliberation, the jury found the hospital and physician were liable for negligence and for failing to secure the patient’s informed consent for the emergency procedure. The jury awarded the plaintiffs $20 million for the child’s future medical expenses, $3 million for the child’s future lost earning potential, and $915,000 for past medical expenses. Additionally, the jury awarded $10 million for the plaintiffs’ pain and suffering. However, the state has an applicable maximum on noneconomic damages, and this $10 million award is expected to be reduced to approximately $1.3 million.
What this means to you: Misdiagnosis or delayed diagnosis is one of the most — if not the most — common causes of medical malpractice claims. There are many conditions that are prone to misdiagnosis, such as cancer, vascular events, and infections. However, not all misdiagnosis events are treated equally, as the resulting injury can range widely. A failure to timely diagnose a condition may render the subsequent treatment ineffective or may preclude any treatment.
Providers must administer care within the applicable standards, which can vary depending on jurisdiction. Generally, providers are negligent if they fail to use the level of skill, knowledge, and care in diagnosis and treatment that another reasonably careful medical practitioner would use in the same or similar circumstances. This legal standard is flexible, and often requires expert testimony from similarly situated medical practitioners.
If providers struggle to diagnose a patient, it may be prudent to consult a colleague for a second opinion. Not only will that help ensure the patient is receiving proper diagnosis and treatment, but it can also bolster subsequent arguments in defending against malpractice litigation because the provider in question consulted another medical practitioner in the actual circumstances. That is not to say providers must always seek a second opinion; to do so would be wildly inefficient and burdensome. Moreover, truly emergent circumstances may require providers to act quickly and prevent the opportunity for outside consultation. Regardless of the circumstances, providers must always adhere to the applicable standards of care.
In this case, there is little to support the defendants’ argument that preterm labor risked the patient’s and child’s lives, and the jury was unpersuaded. Other than observation of the patient, it is unclear what methodology or testing the defendants used to determine if she was in preterm labor. The providers in this case may have opted to wait, to perform further observation, or to perform further testing to see if the patient truly was in labor. If another physician would have done that in the same or similar circumstances, then the providers’ failure to do so in this case constitutes negligence.
The jury also found the defendants liable for failing to secure the patient’s informed consent for the emergency procedure. Providers are required to disclose the important potential results, risks, and alternative options for medical procedures. Even if a patient agrees to a procedure, the failure to disclose this information can constitute malpractice because patients have the right be fully informed before agreeing to procedures. Keeping clear written records of what the patient is told before consenting — and the fact the patient provides consent — are critical for care providers. Litigation is an inherently slow process, with trials often occurring many years after the underlying incidents. Memories fade, but written records are more easily maintained. If a patient is provided a copy of written results, risks, and alternatives, and signs records confirming the same, it is far more difficult for the patient to argue he or she did not receive informed consent.
It also is important to understand informed consent is not required in a true emergency. The only expectation is that once the emergency has been handled, the physician documents the nature of the emergency and the interventions provided, including the patient’s responses to the interventions. Providing informed consent takes time, and in a truly emergent situation that time is not available. In this case, there is no evidence suggesting a true emergency existed. A 22-week-old fetus is not considered to be compatible with life. A 23-week-old fetus sometimes can survive outside the womb, but often with multiple medical complications, especially to the neurological and respiratory systems. Maintaining the pregnancy by delaying delivery as long as possible gives the fetus the best chance of survival with fewer complications. Fetal monitoring will indicate the status of the fetus as well as the presence or absence of contractions and the fetus’ response to those contractions. There are multiple medical modalities that can relieve fetal distress and delay or completely eliminate premature contractions and labor. In the absence of fetal distress, every effort should be made to support continuation of the pregnancy. Other causes for the abdominal discomfort experienced by the mother must be investigated and treated if identified. All efforts must be made to maintain the pregnancy for as long as possible.
Another lesson can be derived from the high damages figure awarded. By far, the largest portion of the damages here came from the child’s future medical expenses, which were awarded in the amount of $20 million. The child’s severe brain injury will necessarily require a lifetime of treatment; likely specialized, expensive equipment; and perhaps round-the-clock care by a nurse or other trained individual. All these costs quickly add up, resulting in the multimillion-dollar judgment. An injured infant or child with a longer life expectancy can result in these types of huge verdicts because of expensive future costs.
On the other side, and fortunately for the defendants in this case, the state in which this occurred allows a maximum recoverable for other types of damages. Here, although the jury awarded $10 million for noneconomic damages, state law will end up reducing that amount to approximately $1.3 million. Different jurisdictions deal with these limitations differently or have no such limitations. It is important to know limitations as they may prove useful in evaluating prospective or actual litigation and in fostering settlement. Knowing a jury might award the maximum, or in excess of the maximum, for these types of damages can then drive discussions on the economic damages aspects of the litigation. This underscores the need to consult and work with knowledgeable counsel who understand the law applicable in the jurisdiction at issue.
REFERENCE
- Decided March 28, 2023, in the Baltimore County Circuit Court, Case Number C-03-cv-21-000577.
Misdiagnosis or delayed diagnosis is one of the most — if not the most — common causes of medical malpractice claims. A failure to timely diagnose a condition may render the subsequent treatment ineffective or may preclude any treatment.
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