OB/GYN Malpractice: How to Know if You Have a Case

In medical malpractice matters involving birth injuries, gynecological surgical errors, or delayed gynecological treatment, attorneys typically retain an expert OB/GYN to opine on liability, causation, and damages. For attorneys who frequently handle these matters, it is critically important to consult the right expert OB/GYN for your case as early as possible to determine whether the case holds merit.

As with any medical specialty, some obstetric and gynecological complications and procedures present inherent risks which can, unfortunately, lead to tragic outcomes. While it may be tempting to assume that an obstetric or gynecologic injury was caused by the physician’s negligence, it’s important to determine whether any malpractice actually occurred before pursuing a case. Consulting an expert OB/GYN can help distinguish between the risks and complications associated with the procedure in question and assess the facts for physician negligence before time and resources are invested into a meritless case.

Here, we examine a range of potential obstetric and gynecological complications and how to determine whether there is negligence to warrant a case.

Obstetric Cases

Every year, 7 out of 1000 births in the United States result in birth injuries. Below are a few of the most common instances of obstetric complications that can manifest due to physician negligence.

Failure to Deliver With a Poor Fetal Heart Rate Tracing

Everyone is aware that an expecting mother gets hooked up to a number of monitors during the labor process, but many may not know what these monitors do. Fetal heart rate monitoring involves checking a fetus’s heart rate during labor and delivery. The obstetrician reviews the fetal heart rate tracing to assess for changes that deviate from the norm in order to act accordingly if and when issues arise.

There are three fetal heart tracing categories: Category I FHR tracing is the ideal, healthy scenario. Category III is ominous. Category II is all that lies in between. Most questions of negligence arise from Category II tracings. This is because it is a broad category and outcomes are all based on management. Category II tracings require continued surveillance and assessment of the overall clinical picture.

Treatment may include discontinuing the offending agent (the medication that is being administered during the labor process), changing maternal positioning (turning the patient to the right lateral side may help reduce the compression on the vena cava, improving blood flow to the uterus), assessing the patient’s contractions, and assessing if she has progressed further on in labor (cervical dilation).

Waiting on a tracing that demonstrates repetitive decelerations or going more than two hours without resuscitative measures (i.e., positioning patient, turning off medications ie. Pitocin, bolusing IV fluids, amnioinfusion intrauterine monitor) are all instances of potential malpractice on the part of the physician.

Poor Management of a Hypertensive Patient

A myriad of complications can arise during pregnancy when a mother’s blood pressure starts to rise or when she already has a pre-existing diagnosis of hypertension. Whether hypertension is pregestational (diagnosed before 20 weeks) or gestational (diagnosed after 20 weeks), a hypertensive patient requires constant surveillance of blood pressure, the possibility of medications, and even scheduling an early delivery to improve outcomes for both baby and mother.

If the blood pressure cannot be controlled despite the administration of proper medications, a C-section may be warranted. Missing these signals or waiting too long to perform a C-section can result in fetal distress due to oxygen deprivation and even infant and/or mother’s death.

Another complication related to high blood pressure that can arise is preeclampsia. Preeclampsia is characterized by a new-onset hypertension during pregnancy with associated thrombocytopenia (platelet count <100,000), renal insufficiency, elevated liver enzymes, pulmonary edema, and proteinuria (although this no longer a requirement according to ACOG).

Failure to properly manage a hypertensive pregnant woman can lead to uncontrolled blood pressure or poor placental perfusion, which can lead to low birth weight (IUGR intrauterine growth restriction) or fetal demise.

Maternal-Fetal Medicine Cases

Maternal-fetal medicine, also known as perinatology, is a subspecialty of OB/GYN that deals with treatment of women with high-risk pregnancies. This includes, but is not limited to, women with autoimmune diseases, congenital diseases, insulin-dependent diabetics, transplant patients, etc. Perinatologists can assess the well being of a fetus through serial ultrasounds, specifically assessing the biophysical profile which is made up of five components: fetal breathing, muscle tone, heart rate, movement and quantity of amniotic fluid.

Failure to Insert a Cerclage

A cerclage is a stitch placed to prevent cervical dilation in a woman who has cervical incompetence. Failure to insert a cerclage in a patient with a known history may be negligent. The cerclage is typically done during the first trimester (up to 14 weeks gestation). Some exceptions may warrant an emergency cerclage during the second trimester. The longer a physician or patient waits, the more dangerous it becomes for the patient, increasing her risk of losing the pregnancy.

Failure to discuss inserting a cerclage within this early time frame may be considered negligent. For non-risk patients who have a history of miscarriages, an obstetrician should refer them to a maternal-fetal medicine specialist to assess the cause. An OB/GYN’s failure to refer a high-risk patient to a Maternal-Fetal Medicine Specialist could also be considered negligent in some cases.

Laparoscopic Perforations: When do You Have a Case?

In cases involving perforations, knowing if you have a case comes down to negligence versus the risk of the procedure. Perforating the bowel during a laparoscopic procedure or a hysterectomy is certainly possible and not in and of itself enough to prove liability.

However, failure to act upon the discovery of a perforation or failure to contact the proper parties (i.e the General Surgery department) to attend to the perforation may fall below the standard of care start. It’s imperative that the OB/GYN conduct a proper work up in the case of a suspected perforation in a post-surgical patient in order to rule out all possibilities and do their due diligence before discharging the patient. Failure to notice error is an error.

Gynecology & Gynecologic Oncology Cases

Gynecology is the subset of women’s health that focuses on female reproductive health including menstrual problems, contraception, sexuality, STI screening and treatment, menopause, and infertility issues.

Failure to Diagnose HPV

STI screening should be routine and occur every six months to one year depending on the age, medical history, or sexual history of the patient. Failure to diagnose and properly manage HPV may result in cervical cancer.

Failure to Diagnose Ovarian Cancer

Failure to act on early-stage cancer could result in the development of a metastatic tumor depending on how aggressive the cancer is. This could ultimately result in a hysterectomy or debulking, which requires removing as much of the abnormal tumor and/or tissue as possible. The problem with ovarian cancer is that it is usually detected in late stages because the symptoms (abdominal distension/bloating, pain, statity) are vague. Therefore, it’s important to assess patients thoroughly when they present with such complaints.

Hysterectomy Negligence

Many women undergo a hysterectomy—a surgery to remove the uterus—for various reasons. During the procedure, the fallopian tubes and ovaries may also be removed. Negligence during or after the surgery, or in the administration of anesthesia, can cause serious injuries. A delay in the diagnosis of gynecological cancers may subject a patient to a preventable hysterectomy. It is necessary to assess and examine a patient thoroughly whenever they present with such a complaint.

Reproductive Endocrinology Cases

A reproductive endocrinology and infertility specialist (REI) is an OB/GYN surgical subspecialist who addresses hormonal functioning as it pertains to reproduction and infertility issues. When dealing with infertility issues, incidents of negligence can include implanting too many embryos or implanting the wrong embryos in a patient.

Implanting too Many Embryos

According to the CHC, American Society for Reproductive Medicine, and the Society for Assisted Reproductive Technology, recommending the transfer of a single embryo is the standard of care. This is to ensure the patient’s health is not at risk and to attain better success rates. The number of embryos that will be transferred is typically agreed upon between physician and patient. When transferring more than one embryo, the chances of having twins or multiple births increases.

Implanting the Wrong Embryo

This issue is a very devastating and unfortunate act of negligence. If a lab mislabels an embryo, then a transfer of that embryo into the wrong patient is possible.

Urogynecology Cases

Urogynecologists handle cases of pelvic prolapse, uterine prolapse, and organ descent.

Pelvic Floor Problems

Patients who are older, have had a number of vaginal deliveries in the past, or a history of complicated deliveries are at risk for weakening of pelvic floor muscles and ligaments. The resulting injuries can include pain, infected ulcers, infertility, sexual dysfunction, difficulty urinating, and rectum prolapse. Surgical problems that may arise include failure to place the proper mesh size or tightening a mesh too much which can cause chronic discomfort.

The Importance of the Right OB/GYN Expert Witness

When it comes to litigating OB/GYN malpractice matters, consulting the right expert physician can be the difference between winning and losing your case. Because OB/GYN physicians go through quite different training than Maternal-Fetal Medicine Specialists or Urogynecologists, it’s critical to retain the most appropriate physician to conduct an independent medical examination (IME), write an expert report, or testify in court. Having an expert with the most relevant training and practicing experience can help you quickly assess the merits of a case, and, if the case involves negligence on behalf of the physician, help you advocate on behalf of the plaintiff with confidence.

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