The SCPIE Companies

November 20, 2008


	To view a PDF file, you need Adobe Reader®. You can download this free software by clicking here.

An Analysis of Two Obstetric Cases

In today’s highly litigious environment, obstetrics can be a medical malpractice minefield. Although the two cases below clearly involve missteps in treating pregnant women, the lessons to be learned can be valuable for any physician. The details and resolution of the cases — which have been taken from the claims files of The SCPIE Companies — are real; only the names are fictitious in order to protect the privacy of those involved.

There are many reasons why patients file medical malpractice claims against their physicians. Perhaps the patient was offended by something you said or did. Or perhaps the patient may be looking for an apology, or for vindication that he or she was right and you were wrong on a given issue.

Case 1

BALDWIN V. AMESBURY MD, ET AL.

Plaintiff		Chloe Baldwin, a minor

Defendants		Ross Amesbury MD, family practitioner; Arthur Beresford MD, ob/gyn; Garnette Regional Medical Center

Allegation		Failure to accurately assess plaintiff’s correct gestational age, resulting in premature delivery by Cesarean section of a significantly premature infant

Resolution		Out-of-court settlement utilizing an annuity for the plaintiff

By Barbara Kuberry Vice President, SCPIE Claims

On December 20, 2001, Tina Baldwin presented to the office of Ross Amesbury MD, a family practitioner not board-certified for obstetrical care. The patient was a 32-year-old, gravida 5, para 3, miscarriage 1, with a prior history of a cesarean section, followed by VBAC and another cesarean section.

The patient provided the history that her last menstrual period occurred on October 4, 2001, but had lasted for only a half day. This would give rise to an estimated date of confinement (EDC) of July 20, 2002. However the prior menstrual period was noted by Dr. Amesbury to be September 1, 2001, with an EDC calculated from that date of June 8, 2002. The office chart contained an ultrasound dated December 21, 2001, which was assumed to be a typographical error since her visit was on the 20th.

Comment: According to our expert reviewer, this was where the first mistake was made. If a physician elects not to use the patient’s last menstrual period (LMP), then an ultrasound should be performed to confirm the gestation date. However, the ultrasound photographs did not provide any meaningful information for the purposes of dating the pregnancy. The calibrations were not recorded on the photos, thus making it difficult to understand what the measurements were for that date.

The next prenatal visit occurred on January 18, 2002, when the patient filled out a two-page prenatal form. Her weight was noted at 175 pounds, with her normal weight being 148. The gestational age recorded on the flow sheet was 4 weeks, 5 days. Under the narrative section, the doctor noted a pelvic ultrasound showing early 4- to 5-week intrauterine pregnancy (IUP).

Comment: This visit involved the second discrepancy in the gestational age of the fetus. If Dr. Amesbury was really using the LMP of September 1, 2001, then the fetus would have actually been at 13 weeks’ gestation. Further, if the ultrasound indicated only 4 to 5 weeks, it would tend to show that a fetal sac — according to the expert reviewer, all that would be visible at that time period — was what was being measured. The reviewer believed there were errors in Dr. Amesbury’s judgment and calculations.

One week later, the record of the January 25, 2002, office visit indicated regular fetal heart tones. The notation dating the fetal age was recorded as 7 weeks, 4 days. The patient’s weight was recorded at 186, an increase of 11 pounds in only one week. There was no notation concerning fundal height.

Comment: At 7 weeks, 4 days, a physician simply cannot hear heart tones. If the fetus was 14 weeks, the physician should have been able to hear heart tones using a dopptone. If the doctor was using a LMP of September 1, 2001, the fetus would have been at 20 weeks’ gestation. Our reviewer said that the gestational age dates assigned during the last two visits made no sense at all. On January 18, 2002, the gestational age was dated at 4 to 5 weeks, and one week later at 7 weeks, 4 days.

During a visit on February 26, 2002, four weeks following the prior visit, the patient was noted to be 24 weeks, 5 days pregnant. Her weight was recorded at 193 pounds. The patient complained of possible contractions, and a vaginal examination showed a closed cervix, with the fetal head being very small and high. An ultrasound examination was performed (again, the date recorded by the machine was out of sync, showing February 25, 2002). The doctor made a notation of the findings of the ultrasound right next to the recorded gestational age of 24 weeks, 5 days.

Comment: This visit gives rise to several more concerns. Although Dr. Amesbury later claimed he only took care of prenatal patients in early pregnancy, the notations clearly point to a patient who appears to be in the second trimester. It would have been appropriate to refer the patient to an obstetrician/gynecologist at this point in time.

During the investigation of the case, Dr. Amesbury said that he repeatedly tried to refer the patient to an ob/gyn, but that she did not want to go to the physician who was available through her Medi-Cal HMO because he was too far away. There was no documentation of the referral.

The failure to reconcile the ultrasound examinations with the gestational dates gives rise to yet another reason for the patient to have been transferred to the care of an ob/gyn. The doctor’s narrative note reported that the ultrasound showed a fetus with a gestational age of 9 weeks, 4 days. This raises obvious concerns about the possibility of intrauterine growth retardation (IUGR) and a baby extraordinarily small for its gestational age.

Although three separate ultrasounds were taken, there was no attempt to reconcile the various findings with the EDC. Dr. Amesbury continued to record weeks of gestation that did not coincide with the ultrasound findings.

Our expert opined that the only way to explain why Dr. Amesbury recorded a gestational age of 24 weeks, 5 days, would be that he consistently used the EDC of June 13, 2002, and calculated backwards from there. The expert also noted that the physician failed to record fundal heights, and that there was no effort to correlate any dates with the clinical examination.

In the expert’s view, the calculations were inconsistent every step of the way. The repetition of the same error over and over, and the inconsistent dates on the ultrasound examinations, enabled the plaintiff’s attorney to paint a picture of a physician who was less than thorough and thoughtful.

The patient continued to treat with Dr. Amesbury; she returned to his office on March 26, at which time she weighed 194 pounds. Gestational age was recorded at 27 weeks, 3 days. All of the estimations regarding gestational age were recorded under the same column for “gestational weeks.” There was no record of entries for the column “fundus.” However, the doctor did sketch a diagram of the infant in the oblique breech presentation, and also noted where the fetal heart tones were heard that day.

Three days later, the patient returned for a fasting blood sugar. The results were normal. The words “ONE WEEK” were written next to the findings, but the patient did not return in a week. The patient was next seen on April 26, when the gestational age was noted to be 33 weeks, 1 day and the patient weighed 198 pounds. The infant was noted in a vertex position, and the infant’s heart rate was regular.

On May 7, the patient weighed 196.5 pounds. Gestational age was recorded as 34 weeks, 5 days. According to notations made by Dr. Amesbury, the patient was doing well and had trace edema.

On June 4, the patient returned to the office and was noted to be 38 weeks, 5 days. The record indicated that she wanted a VBAC and bilateral tubal ligation. Her weight had not changed during the four weeks since the previous visit; a weight change was unlikely to occur at that gestational age under normal circumstances. No fundal measurement was recorded.

On June 13, Dr. Amesbury saw the patient for the last time, when the gestational age was recorded at 39 weeks, 3 days. The patient complained of mild contractions. On examination, the fetal head was high, and the cervix was closed and thick. The patient was told she was not in labor.

Comment: Although Dr. Amesbury stated that he failed to document fundal height because of the patient’s obesity — a factor he said would have made the measurement not meaningful — this argument was defeated by virtue of the handwritten entries in the prenatal records showing “breech/oblique lie.” If Dr. Amesbury could tell this, he should have been able to measure fundal height.

Also, our expert thought it would be almost impossible to determine that a fetus was in the breech position at only 26 weeks. On April 26, the fetus was noted in the vertex position, Again, if Dr. Amesbury could determine that, he also could have measured fundal height.

The bottom line is that there were at least two areas in which errors were made. The first was a deviation from the standard in that fundal height was never recorded, nor was there any mention of difficulty in obtaining that measurement.

The second area involved recording incorrect gestational ages throughout the pregnancy. If only one error had occurred using the incorrect LMP, the case might have been defensible. Although Dr. Amesbury did correctly perform serial ultrasounds, he made no effort to correlate any of the dates with the clinical exams. As a result, the calculations were inconsistent every step of the way.

On June 14, the patient was seen by Arthur Beresford MD, an ob/gyn, in his office to assess whether she was a candidate for a VBAC. The patient was referred to Dr. Beresford by Dr. Amesbury — whose prenatal records did not become part of Dr. Beresford’s chart until they were faxed to his office on June 23, after delivery.

The history of LMP of September 1, 2001, was provided by the patient. Dr. Beresford noted a fundal height of 40+ cm, and that the patient was 40 to 41 weeks pregnant. The office notes were unsigned.

According to records from Garnette Regional Medical Center, the patient presented to the hospital on June 14 in order to undergo a repeat cesarean section. An Admission Requisition form signed by Dr. Beresford indicated “intrauterine pregnancy term.”

The History & Physical was dictated on June 14, slightly less than one hour prior to the time of delivery. It included the following details:

The LMP was recorded as September 1, 2001, and a due date as June 11, 2002.
Prenatal care was provided by Dr. Amesbury.
Fundus was at term size (indicating an assessment by Dr. Beresford).
A pelvic examination showed the patient to be 2 cm dilated, 70% effaced and the bag of water intact.

The operative note showed that the C-section was performed under spinal anesthesia and went without incident. A female child — Chloe Baldwin, the plaintiff — weighing 4 pounds, 5 ounces, was delivered. Clinical examination revealed that the infant was consistent with a 34-week gestation.

Baby Chloe required treatment in the Neonatal Intensive Care Unit (NICU) for six weeks. Her problems, which were consistent with prematurity, included hypocalcemia, feeding difficulties and the possibility of retinopathy of prematurity. Additionally, the placenta pathology report showed diffuse premature activity, also consistent with a premature delivery.

Comment: Our expert thought that Dr. Beresford was equally culpable in the premature delivery. The American College of Obstetrics and Gynecology (ACOG) standards — published in 1995 and applicable in June 2002 — state that for an obstetrician to perform a repeat cesarean section, both of the following criteria must be met:

There must be a normal LMP.
The patient must not have used birth control pills immediately prior to the confirmed pregnancy.

In this case, the patient did not have a normal LMP. If only one of the two criteria is met, ACOG then goes to a second tier of analysis, in which one of the following criteria must also be demonstrated:

Fetal heart tones must be heard at 20 weeks’ gestation by means of nonelectronic methodology, and must be heard at 30 weeks by dopptone.
There must be 36 weeks of pregnancy following a positive pregnancy test (either by way of urine or blood).
An ultrasound is performed at between six and 11 weeks, with the crown-rump length consistent with 39+ weeks, as compared to the calculated gestational age.
An ultrasound is performed at between 12 and 20 weeks, confirming that the baby will be 39+ weeks at the EDC. The ultrasound must be backed up by a clinical history that’s consistent with the LMP, and a physical examination at delivery.

In this case, none of these criteria were met. In that event, the obstetrician must meet one of the following:

Pulmonary maturity must be documented via amniocentesis and must demonstrate a “maturity cascade.”
The obstetrician must wait for spontaneous labor to occur.

In the opinion of SCPIE’s expert, the reason Dr. Beresford performed the cesarean section was that he was an obstetrician — unlike Dr. Amesbury, who was a family practitioner with no privileges to perform the procedure. As the obstetrician, however, Dr. Beresford had his own separate obligation to work up the patient and verify the need for a C-section.

Fortunately for all involved, the infant was doing quite well by the time of discharge on July 25, exactly six weeks after her birth. Her weight had increased from 1,971 grams at birth to 2,684 grams, which was clinically consistent with a baby at a gestational age of 39 weeks, 6 days. Due to an abnormal pneumogram study performed two days prior to discharge, she was sent home on an apnea monitor. A head ultrasound was normal and did not show any evidence of bleeds due to prematurity. She was feeding on her own and no longer needed a nasogastric tube. Because she was at risk for retinopathy of prematurity, she was referred to a specialist.

By the child’s 18-month visit, the pediatrician could not detect any abnormalities; she was completely within range for developmental milestones at that age. At the deposition, the pediatrician indicated that Chloe had not sustained any long-term sequela due to her prematurity. Her problems were taken care of while she was in the NICU, and her height and weight showed that she was growing normally and was in the 50th percentile for both.

Comment: Several issues led to a compromise settlement of the claim, with the doctors sharing on a 50/50 basis. First and foremost was the failure of both physicians to properly establish the EDC. The standard of care requires the obstetrician or family practitioner to measure fundal height and to do a clinical evaluation of the gestational age on every occasion. Clearly, Dr. Amesbury did not do this, and when the prenatal chart was faxed to Dr. Beresford, he, too, failed to appreciate the inconsistencies. As an obstetrician, Dr. Beresford is held to ACOG standards; he had his own separate obligation to work up the patient before carrying out the cesarean section.

It should be noted that the published ACOG standards are not completely consistent with the established standard of care, which is set by the custom and practice of physicians. However, the ACOG standards are generally accepted by physicians and are often referred to by expert witnesses. Indeed, when a copy of the standards is blown up in court for all to see, and the provisions are reviewed step-by-step by plaintiff’s counsel, it tends to have a tremendous impact on juries. Often, the result is an indelible impression on the minds of jurors that a physician “failed to follow the cookbook recipe.”

The second issue is the lack of documentation in the medical records, and the inconsistent statements made by the physicians in trying to defend that lack of documentation. The hallmark of a successful defense is that the medical record “speaks for itself.” When this is not the case, the physician should be able to explain the inconsistencies by elaborating on custom and practice, or by providing an explanation that is consistent with the record.

In this case, Dr. Amesbury clearly noted in the record the positioning of the fetus, and went on to state that the fundal height could not be measured due to the mother’s obesity. The two assertions are inconsistent. A further inconsistency was Dr. Amesbury’s contention that he cared for patients only during early pregnancy, while his chart expressed his belief that the patient was at term. There was also a lack of documentation pertaining to the referral of the patient to an obstetrician earlier in the pregnancy. Although Dr. Amesbury had a good explanation for this — the patient’s refusal to travel far — it was not documented. Ultimately, the patient was referred to a physician practicing in the immediate area.

The third issue was the lack of communication between the referring family practitioner and the accepting obstetrician. Records were merely faxed; had Dr. Amesbury reviewed the records beforehand, he might have noticed the inconsistencies and discussed them with Dr. Beresford. Conversely, had Dr. Beresford reviewed the records, he might have noticed the inconsistencies and made attempts to review the ultrasound studies to better establish an EDC — or he might have undertaken additional testing.

Perhaps the biggest problem was the large number of inconsistencies presented in the medical record, as well as the inconsistent statements of the physicians in trying to defend their actions. It was fortunate that the child’s injuries were limited: She recovered quickly with no sequela, other than a prolonged stay in the NICU.

Had the proper correlation of patient information to repeated ultrasound testing been carried out by either Dr. Amesbury or Dr. Beresford, the premature birth probably would not have occurred. Neither of the doctors would have been involved in a claim, and the parents would have been spared 12 months of concern regarding the normalcy of their child.

Case 2

COLONNA V. DAUPHIN MD, ET AL.

Plaintiff		Patricia Colonna

Defendants		Charlotte Dauphin MD, ob/gyn; Philip Van Dijk MD, ob/gyn; Durrell Medical Group; Melrose Hill Hospital

Allegation		Failure to diagnose and treat early stage of either preeclampsia, HELLP syndrome or AFLP, resulting in neurological deficits of the plaintiff

Resolution		Out-of-court settlement utilizing an annuity for the plaintiff

By Barbara Kuberry Vice President, SCPIE Claims

The plaintiff, a 38-year-old, gravida 0, para 0, presented to Durrell Medical Group in June 2000 for preconception counseling. In mid-September 2000, pregnancy was confirmed by testing, and the first prenatal visit was scheduled for October 5, 2000.

At that visit, when the plaintiff first saw ob/gyn Charlotte Dauphin MD, she provided a history of morning sickness and hyperthyroidism. Hyperthyroidism required PTU therapy, and hyperemesis necessitated the use of antiemetics. Because of advanced maternal age coupled with these conditions, the patient was referred both to a perinatologist and to a geneticist during the pregnancy. The estimated date of confinement (EDC) was established at May 23, 2001, and the pregnancy progressed in an uncomplicated fashion.

Late in the evening of April 15, 2001, the patient presented to the birthing center at Melrose Hill Hospital with complaints of a fever of 102.2, malaise, abdominal pain and uterine irritability. Fluids and Terbutaline were given, and the patient was sent home after being evaluated by another physician affiliated with Durrell Medical Group.

On April 16, the plaintiff called Durrell Medical Group and spoke with Dr. Dauphin’s nurse, Karen Granby RN. The plaintiff provided her recent history to the nurse and was scheduled to see Dr. Dauphin the following day.

On April 17, the plaintiff was seen in the office by Dr. Dauphin, who did a complete evaluation. The plaintiff showed no evidence of preterm labor or contraction activity of any kind, no abnormal swelling or abdominal pain, no complaints of headache, no elevation of blood pressure or significant proteinuria. Dr. Dauphin’s dictated note indicated that she counseled the patient about the signs and symptoms of pregnancy-induced hypertension (PIH).

During the morning hours of April 20, the plaintiff presented to her primary care physician, Trent Humiston MD (not a party to this action and not associated with the Durrell Medical Group) with complaints of a sore throat. Dr. Humiston wanted to obtain vital signs but was told by the plaintiff that they had been taken by Dr. Dauphin two days earlier and that everything was fine. Dr. Humiston did observe swelling of the patient’s lower extremities that — despite the pregnancy — struck him as abnormal. He advised the patient to call her ob/gyn and prescribed Amoxicillin for her.

During his deposition, Dr. Humiston testified that the patient did not have complaints involving visual problems, abdominal pain, headache or swelling in the upper extremities. He testified that he did not consider the circumstances urgent or emergent, and that the patient did not appear toxic or have a fever.

On April 20, at 11:00 am, Granby, the nurse, received a phone call from the plaintiff, who was concerned about taking Amoxicillin during pregnancy. A check of the chart revealed that the plaintiff previously had been prescribed Amoxicillin in pregnancy by Dr. Dauphin. The nurse recorded that the patient had experienced a sore throat and mild headache for approximately two days, plus increased swelling in her legs and arms. The plaintiff denied visual problems and abdominal pain.

The nurse’s note indicated that the signs and symptoms of toxemia were discussed, and blood pressure parameters given. The patient was advised to go to a nearby pharmacy and have her blood pressure checked, and if it was more than 140/90, to call back; if it was not over that level, she was advised to rest, take Tylenol, increase her intake of fluids and call back if needed.

On deposition, Granby indicated that during the phone conversation, she had first asked the patient to come to the office, but that the patient had declined. As an alternative, the nurse then suggested that the patient go to the local pharmacy. Granby also testified that she called the plaintiff later in the day, at which time the plaintiff stated she was too tired to go to the pharmacy to have her blood pressure checked, and thus had not done so. This conversation was not charted by the nurse.

During the course of discovery, it was determined that Granby had made an addition to the note of April 20, timed at 11:00 am, indicating that the baby was active and the plaintiff’s headache was mild.

Comment: Had this note been added as a “late entry” and timed and dated, it would not have become a crucial factor in the decision to effect a compromise settlement of this case. However, the note was added by Granby after the chart had been copied for the attorney — and that fact, coupled with the lack of documentation regarding a call to the patient later the same day, became central issues in the case.

The old adage “If it’s not recorded, it didn’t happen” applies to the testimony regarding the phone call to the plaintiff to determine whether she’d had her blood pressure taken at the pharmacy. Furthermore, altered records always provide a real credibility issue for any witness.

SCPIE’s ob/gyn expert was critical of Granby for not bringing the patient into the office, given that she had a headache for two days and swelling in her extremities. According to the reviewer, the note the nurse added would support a contention by any plaintiff’s expert that an individual need not have all the symptoms of preeclampsia/toxemia to be diagnosed with the condition. Allowing the patient to go to a pharmacy for a blood pressure check simply was not within the standard of care, the expert said.

Since Granby was an employee of the Durrell Medical Group, the group was responsible for her actions based on the principle of respondeat superior, a legal rule that the principal or employer is liable for harms done by agents or employees while acting within the scope of their agency or employment.

In the early hours of April 21, the plaintiff presented to Melrose Hill Hospital and was evaluated by another Durrell Medical Group ob/gyn physician, Philip Van Dijk MD. He observed significant swelling of her extremities, complaints of headache, visual disturbance and abdominal pain. His dictated note suggested that this history had been present for several days.

Initial laboratory values indicated severe renal and liver abnormalities. A fetal monitor strip revealed nonreassuring fetal heart tracings. Dr. Van Dijk determined that a cesarean section should be performed and contacted Dr. Dauphin, who immediately presented to the hospital in the middle of the night. A healthy male infant — weighing 6 pounds, 10 ounces — was delivered via C-section.

Postoperatively, the plaintiff developed severe medical problems and appropriate consultations were arranged. They included treatment by an internist, hematologist, renal specialist, gastroenterologist, general surgeon, neurologist and critical care specialist.

The patient developed profound kidney and liver failure, DIC and pelvic hematoma, and went into cardiopulmonary arrest, which necessitated a code blue resuscitation. In spite of the resuscitation, she was diagnosed with encephalopathy. Also, she required numerous transfusions and surgery for evacuation of a large hematoma in the lower abdomen.

At surgery, the uterine incision was intact; the source of bleeding was not completely understood. Even with the help of multiple consultations, a definite diagnosis could never be established, although differential diagnoses included preeclampsia, HELLP syndrome, and acute fatty liver of pregnancy (AFLP), or some variant of AFLP. Both the plaintiff and her husband tested positive for hepatitis G.

The plaintiff remained hospitalized from April 21 to May 24, when she was transferred to a rehabilitation hospital. She was ultimately discharged from rehabilitation in June 2001. The plaintiff continued to have visual disturbances, difficulty in speech and swallowing, and subtle brain damage as a result of oxygen deprivation. She was no longer able to return to her employment as an elementary school teacher, and was unable to care for her child because of fatigue and nervousness. The child attended day care, and the plaintiff was cared for at her mother’s home. She was also unable to drive.

Comment: In order to properly prepare this case for a defense, SCPIE had multiple expert reviews performed. The results were varied and never provided a complete, clear-cut answer to the question about the source of the plaintiff’s problems.

Our first ob/gyn expert found no deviations from the standard of care overall. Prenatal care was appropriate, and there was no evidence of pregnancy-induced hypertension, as all blood pressures remained in the normal range. There was no indication for earlier delivery, and all care after admission to Melrose Hill Hospital was timely and appropriate.

A second ob/gyn reviewer aggressively supported the defendant physicians. He opined that the standard of care was excellent, and that the patient presented (and continues to present) as a diagnostic dilemma. He also noted that the blood pressure was never elevated; therefore, he did not believe that she ever had preeclampsia or HELLP syndrome, since it essentially is a variant of advanced preeclampsia. He could not rule out acute fatty liver of pregnancy.

The only concern he voiced was in regard to the advice of the nurse to the plaintiff to have her blood pressure checked at a pharmacy – clearly beneath the standard of care. However, he would have been able to support the defense from a causation standpoint, as all of the plaintiff’s blood pressures — including on the evening she spent in the hospital — were within normal limits.

Another defense expert was board-certified in internal medicine, pulmonology and critical care. He stated that the circumstances were truly enigmatic, because laboratory data and clinical signs and symptoms were partially consistent with a number of different conditions. They were not consistent with any one condition, which would have facilitated reaching a definitive diagnosis. He maintained that the plaintiff’s problems were clearly not doctor-caused.

The consulting perinatologist rendered the opinion that no physician could state with total certainty exactly what diagnostic label should have been assigned to the plaintiff. While she had laboratory abnormalities consistent with preeclampsia or HELLP syndrome and/or AFLP, some of the laboratory variables were inconsistent with these diagnoses. Again, this expert noted that the blood pressure never registered as elevated.

Whether the plaintiff was preeclamptic, an AFLP patient or had HELLP syndrome made no difference, in the perinatologist’s view, as the treatment of choice in any event was admission, supportive care and delivery. Each of the diagnoses can involve liver and/or renal failure and neurological disturbances.

Clearly, the particular set of facts in this case presented challenges to the defense of this matter in court. On the positive side, SCPIE’s insureds were well-trained, board-certified physicians who presented well during their depositions. Their charts were properly documented, and appropriate referrals occurred during the prenatal care of this patient and during her hospitalization.

None of the numerous physicians who provided care while the woman was hospitalized were critical of the defendants, and none could provide a definite diagnosis. All were in agreement that the plaintiff’s problems were not physician- caused — an opinion shared by all the consulting experts retained by defense counsel.

Even so, several factors would likely have made the case difficult to defend at trial. First and foremost was the nurse’s alteration of the medical record, which was further complicated by the lack of documentation of the phone call that reportedly took place later that afternoon. One additional concern: The close working relationship between Dr. Dauphin and Karen Granby, the nurse, would make it difficult to win the confidence and trust of the jury.

Additionally, plaintiff’s counsel had obtained the services of a nursing expert who was not only critical of the records alteration, but also of the nurse’s decision not to relay the information to the physician. There was a presumption that if the physician would have seen the patient, admitted her to the hospital and delivered her earlier, her damages would have been diminished or completely avoided.

Communication between healthcare providers is key to providing good patient care. Had the nurse communicated the information to the physician either at the time the patient called or when the nurse called the patient and found that the patient hadn’t had her blood pressure checked as recommended, a different outcome could have occurred. No one will ever know, since that is not how events unfolded. However, the lack of communication undoubtedly created another stumbling block in the defense of the case.

Given the vagaries of the jury system, it is difficult to defend cases that have significant, life-altering injuries. Prior to this pregnancy, this plaintiff was in relatively good health and employed as a teacher. Following delivery, she had visual, swallowing and speech problems, and was unable to care for her new infant. Indeed, she required assistance from her own parents. Jurors are often swayed by the sympathetic appearance of the plaintiff.

Cases that are medically complex also tend to be difficult to defend. (The average juror has a high school education.) In this instance, both the treating physicians and the expert witnesses would have been unable to explain what had caused the plaintiff’s problems and resultant injuries. They may have been able to say with a great degree of fervor that her problems had not been caused by her doctors — but without an explanation of the cause and effect of the disease process, jurors likely would have favored the sympathetic plaintiff. While this might have been overcome by the training and knowledge of the treating and expert witnesses, it nonetheless would have presented a hurdle for the defense.

Collectively and individually, records alteration, lack of documentation and lack of communication were obstacles to mounting an effective defense. Ultimately, these factors led to a settlement of the claim by the Durrell Medical Group. Both of the involved physicians were dismissed from the lawsuit, and the settlement was structured to provide monthly payments to the plaintiff.