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Legal Review and Commentary
Improper use of forceps results in large federal tort verdict
By Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney PC, Tampa, FL
News: During a delivery, a contract OB/GYN improperly used forceps. The infant's skull was crushed in the process, which left the child severely brain damaged. The judge awarded $33 million to the child and parents for pain, suffering, and lifetime medical expenses.
Background: A military couple based in Texas was expecting the birth of their first child. The woman was receiving care through Army facilities and providers, and the Army hospital had a contract with civilian obstetricians for OB/GYN services. After a normal and healthy pregnancy, the woman went into labor. At the hospital, the delivering physician was an OB/GYN who had been hired under a personal services contract and whom the family had not met before. While attempting to use forceps to aid in the delivery by applying traction to the fetal head, the physician used them in such a manner that they crushed the baby's skull, which caused massive global and focal brain damage. The infant's hearing complex and right eye socket were destroyed, resulting in permanent hearing loss and partial blindness. The child's injuries were severe and permanent, which led to cerebral palsy. She is physically and mentally handicapped and will require 24-hour care for the balance of her normal life expectancy.
At the time of delivery, the military medical personnel had described the girl's condition as "seizures" instead of making the parents aware of the true extent of their daughter's injuries. It was not until they requested a copy of the medical record that they learned that the improper use of forceps had caused such severe medical problems.
The distraught parents brought suit under the Federal Tort Claims Act against the U.S. government, which admitted that the physician was an employee acting within the course and scope of his employment. The government also admitted liability and causation, which left the amount of damages as the only issue for trial. During the pretrial period, the parents discovered the obstetrician had an extensive history of substance abuse involving alcohol and codeine compounds. They also discovered that within months after the delivery of the plaintiff's child, the obstetrician was cited by the state's Board of Medical Examiners for failure to practice medicine in an acceptable manner consistent with public health and welfare and for prescribing or administering a treatment that is nontherapeutic in nature or nontherapeutic in the manner the treatment is administered or prescribed.
Prior to trial, the government offered $1.6 million to settle the case, but the parents countered with $7 million. The government increased their offer during the bench trial to $4 million, but the counteroffer became $10 million. The judge ultimately awarded nearly $33 million, the second-largest medical malpractice verdict ever against the federal government. The government appealed the case, and the appellate court ordered that the amount of the judgment be reduced. Following the appeal, the parties settled the case for the reduced amount plus post-judgment interest, totaling $25.5 million.
What this means to you: It is always sad that in the course of an event that is supposed to be a happy time for a family, such as the much-anticipated birth of a first child, an unfortunate, and possibly preventable, outcome occurs. As an initial matter, this case demonstrates that a hospital can be held liable for the acts of the personnel working at the facility, to include doctors. In this case, the doctor who committed the professional malpractice was a contracted employee of the hospital, which is not an infrequent relationship between government hospitals and civilian physicians who provide certain obstetrical care. "But even outside of the government hospital context, this case is evidence that risk managers should be intimately involved in the review of all contracts," recommends Leilani Kicklighter, RN, ARM, MBA, CPRHM, LHRM, consultant/principal at The Kicklighter Group in Tamarac, FL, and past president of the American Society of Health Care Risk Management.
A risk manager should assess the risk exposure, risk assumption, and insurance provisions found in any such document and also should review the language in the contract regarding "agency." Agency — a concept under which an entity will be deemed to be vicariously liable for the acts of an individual — is a concept that plays a significant role in the legal aspects of claims. In this case, the government facility admitted that the physician was an employee, meaning "agency" did not become an issue. But even if a contract does not specifically state that the contracted party is an employee, a court still can find the party to be an agent, thereby exposing the facility to liability.
Kicklighter advises that there are certain conditions, such as assignment of work, control of work, and how the contracted person is paid, that will factor into a court's decision regarding whether the contracted person is an agent. "Risk mangers should become familiar with the 'tests' applied in their states in order to recognize and assess the level of risk exposure in a contract for the provision of services," she says.
This case also emphasizes the importance of the initial appointment, reappointment, and delineation of privileges of doctors. "The use of mid- and high-forceps should be used only by those physicians who request — and are granted — privileges to do so. And, as in all procedures requested, approval should be given only based on demonstrated education and competency," advises Kicklighter. This case is particularly interesting because the use of high forceps is not that common nowadays. Nevertheless, when forceps are used, the doctor should follow the published guidelines of the American College of Obstetrics and Gynecology (ACOG) and provide notice that he or she will be using forceps to the chief of the obstetrical service for peer review, as well as to risk management for investigation and possibly a root-cause analysis.
If this physician were granted privileges to use mid- or high-forceps without a good foundation of experience or training in this modality, Kicklighter notes that the issue of corporate liability exposure could rear its ugly head. "On the other hand," she continues, "if the physician had not been granted such privileges and used the forceps without requesting an emergency consult from the chief of service, other liability exposures in addition to being reportable to the state board of medicine would be raised."
As part of the initial appointment process, a facility should conduct background checks on all physicians, especially those who are contracted. Kicklighter suggests that as part of the medical staff rules and regulations, processes should be included to address suspected substance abuse and disruptive behavior, including interventions. Staff also should be educated to report aberrant and unusual behavior exhibited by physicians and other staff members. She further notes that many facilities have "drug-free" workplace programs, which tend to focus on preventing work-related accidents.
"Rank-and-file employees are often hesitant to intervene or to report physicians who exhibit symptoms of substance abuse or unusual behavior," says Kicklighter. "Yet studies reflect that a significant percentage of health care staff, including physicians, are substance abusers. It is a serious problem that many facilities do not have programs to reinforce the process and to give employees comfort that they will be supported if they make such a report." She suggests that the risk management department become an integral component of this initiative as a loss prevention effort.
Every risk manager should be immediately involved in untoward events, especially ones with such devastating injuries as those found in this case. Kicklighter is alarmed by the fact that the hospital in this case did not immediately inform the parents of the extent of the baby's injuries, as disclosure of untoward outcomes is a standard from The Joint Commission. In many states, in fact, such disclosure now is a statutory requirement, Kicklighter adds. Not only is withholding the condition of the newborn problematic from an ethical and moral standpoint, but disclosure of untoward outcomes and the lending of support to the family often can mitigate or prevent the assertion of a claim. In cases like these, risk management should orchestrate the disclosure meeting with the family and the subsequent status meetings, including a review of the medical record. Kicklighter contends that to withhold information as to the event, to describe the infant's condition as "seizures," and to withhold the medical record from the family are all fodder for inflaming a jury and could be considered fraud in some situations.
One final point raised by this case is the fact that this facility is a U.S. military hospital. "State-based governmental health care facilities may be entitled to sovereign immunity, which is a consideration that will affect every risk manager's mindset when faced with potential litigation." Nevertheless, Kicklighter stresses, the patient care issues detailed in this case should be of considerable concern to any risk manager considering that governmental health care facilities and providers are not exempt from complying with applicable standards of care.