May 9, 2022

During the evening on April 14, 2022, a Montgomery County, Maryland wrongful birth/negligent sterilization medical malpractice jury returned its verdict after four full days of trial in favor of the parents against the OBGYN defendant.

The Underlying Facts

One doctor (Defendant One) in a shared patient/group OBGYN medical practice delivered a baby by emergency Cesarean section at 28 weeks after the fetal heartbeat was lost at bedside. This was the parents’ fifth child, all delivered by C-section, but the first delivered so early. The delivery took place in May 2017 following a difficult and high-risk pregnancy.
As planned, the doctor performed a bilateral tubal ligation procedure immediately after the emergent C-section (when it was safe to do so) but failed to ligate the left fallopian tube and ligated the left round ligament instead. His operative report states that he employed the correct technique in performing the tubal ligation procedure; there was no abnormal anatomy; there were no complications encountered in performing the tubal ligation; and, the ovaries and tubes were stated to be normal in appearance.
The surgical pathology report indicated on all three pages that the doctor had botched the procedure, which the doctor electronically signed 18 days later. He never told the patient about the pathology report findings and he never expected anyone in the practice to advise the patient regarding the findings. He speculated that he carefully read the first part of the surgical pathology report that mentioned the placenta because he wanted to know why the patient almost died (he took great credit in saving the lives of the patient and newborn) and he believed that his focus therefore caused him to not realize that he had ligated the wrong structure.
The 6-week postpartum visit was conducted by another physician (OBGYN) in the same practice, who had provided some prenatal care to the plaintiff but did not participate in the C-section or tubal ligation (Defendant Two). The OBGYN admitted that she never looked for or read either the operative report or pathology report despite knowing that they would be in the electronic chart that she accessed during the postpartum office visit. She assumed if there was a problem, the surgeon would have contacted the patient. The doctor admitted that she never asked the patient if anyone had discussed the pathology report with her. The doctor noted in her office note that the patient used the sterilization procedure as her birth control. The plaintiff testified that the doctor told her during the postpartum visit that the sterilization procedure provided her with 100% contraception and she needed no other form of contraception (Defendant Two did not recall the discussion but testified that she would not advise any patient that tubal ligation was guaranteed to be 100% effective).
The plaintiff became pregnant with her sixth child two years later. She and her husband were devastated. She feared for her life and the life of her fetus during the entire pregnancy based on her last pregnancy and delivery. She was very anxious and depressed (no formal treatment). She was on bedrest for two months. She could not provide her five children and husband with the services and attention they needed. She snapped at her children and husband and then became upset with herself as a result. She had painful weekly injections and ultrasounds twice weekly. She delivered at 36 weeks by planned C-section (her sixth C-section). The child is healthy.
A cause of action for intentional infliction of emotional distress survived a motion to dismiss, motion for summary judgment, and motion for directed verdict at the close of the Plaintiffs’ case as to the first OBGYN (however, punitive damages did not go to the jury).
The jury awarded the mother $481,000 for noneconomic damages for the period from when she first learned that she was pregnant in July 2019 to the date of delivery in early February 2020. The jury awarded $10,000 for disfigurement for the vertical C-section scar. The jury awarded full second-tier economic costs of raising the child to the age of majority ($251,660). The jury determined the offset for the benefit to the parents for the child’s aid, society, and comfort to be zero. The jury found no intentional infliction of emotional distress. The jury found the second OBGYN did not breach the standard of care, based upon the defense expert testimony that there was no duty to access and read the surgical pathology report even though the doctor accessed the chart during the postpartum visit and knew the report was in the chart (i.e., physicians in a group practice rely/trust their partners to provide proper care; in this case, that the surgeon who performed the procedures would have contacted the patient is there were any relevant findings). The defense also argued that Defendant Two would have seen that the surgical pathology report stated in bold print at the top that it had been electronically signed by the OBGYN who had performed the tubal ligation procedure, and the operative report stated the proper technique was used in performing the bilateral tubal ligation.
Defendant One called a frequently used defense expert to testify at trial. His testimony was basically if you read the operative report, the procedure was done correctly. He then opined how the wrong structure may have been ligated based on facts not in evidence and contrary to the defendant’s own testimony. He also blamed the pathologist for not contacting Defendant One, although the surgical pathology report itself documents that the pathologist made such efforts. The defense expert also criticized the format of the surgical pathology report, despite the format being the standard format used by the hospital’s pathology department.
The eight-member diverse jury deliberated for three hours before rendering its verdict.
The plaintiffs’ Maryland medical malpractice lawyer focused at trial on the alleged lies and coverups (the false operative report that remains in the chart; the second physician allegedly telling the patient she could not become pregnant despite the pathology report in the chart that she did not read) and the betrayal by the surgeon in not performing the sterilization procedure correctly and then failing to advise the patient regarding the surgical pathology report findings, and the alleged betrayal by the second OBGYN who allegedly told her she could not become pregnant due to the sterilization procedure. The plaintiffs’ Maryland medical malpractice attorney believes that Defendant One made a major strategic error by not accepting responsibility for botching the tubal ligation procedure and by trying to make excuses based on facts not in the operative report and contrary to the operative report.
The shared patient medical practice was also a defendant (owned by a large health care company) based on vicarious liability.

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