Managing Your Practice

Like everything else, Pay for Performance (P4P) has inherent rewards and risks. For our patients, rewards include improved clinical care and outcomes, and for us, enhanced earnings. Among potential risks are a failure to earn higher compensation if we don’t participate in a voluntary P4P program, and/or finding our practices excluded from “preferred” status as more plans move toward tiered networks. P4P might be one way a plan decides which practices to include in a preferred network, advertising only practices that meet the “higher standards” of P4P.

Like it or not, P4P programs are already a reality for many of us, and their continued proliferation seems inevitable. This article describes the typical trajectory of a P4P program, the importance of being involved in program design as early as possible, and the challenges and successes of P4P thus far.

P4P goes a long way back

In 1986, Robert Fulgham wrote an insightful book entitled All I Really Need to Know I Learned in Kindergarten.¹ It’s hard to argue with the basic premise of that title. When I think back to my early school years, I remember well the reward for achievement: a gold star. And I was intent upon achieving my teacher’s goals. Why? For the gold star, of course. That was my first experience with P4P.

Let’s fast forward a few decades to focus on more sophisticated versions of the gold star, and consider what we need to know to be ready for P4P in our own practices.

5 critical questions

Although our involvement with P4P in health care has so far been limited, we are rapidly recognizing some of the challenges involved. Questions that must be answered include (but clearly are not limited to) the following:

Although a Robert Wood Johnson Foundation report issued in November 2005 concluded that P4P programs “can improve both medical care and quality of life by giving health-care providers a financial incentive to seek measurable improvements in the health of their patients,”² it may be too soon to make such a statement. According to a comprehensive and heavily documented article from the August 15 issue of Annals of Internal Medicine,³ “ongoing monitoring of incentive programs is critical to determine the effectiveness of financial incentives and their possible unintended effects on quality of care.”

Answers are on the way

We should soon be able to begin answering some of these questions, however. According to a major survey from 2005, the number of P4P programs in the United States more than tripled over the previous 2 to 3 years, totaling 115 in 2005,⁴ and it is very likely that the rate of increase will accelerate. The 2005 survey also disclosed some key findings, including the following:

Measures that overlap 2 specialties are not necessarily bad

Measuring “clinical improvement” or “quality” is particularly challenging. Outcomes are difficult to measure and influenced by many factors, only some of which are within our clinical control.

Should we use Health Plan Employer Data and Information Set (HEDIS) measures as a proxy for quality, such as rates of cervical or breast cancer screening? We must agree that it's good to screen for breast and cervical cancer. Unfortunately, many HEDIS measures fall into the no-man’s-land between obstetrics and gynecology and primary care—especially something like mammogram compliance.

As much as possible, we need to have input into program design, and should always suggest measures that fall more clearly within our domain, over which we have more control. However, measures that overlap 2 specialties are not necessarily bad. We will share the credit even if the primary-care physician (PCP) is the one who gets the patient to go for her mammogram—and the likelihood that the patient will be motivated to do so will be doubled, because both the PCP and the ObGyn will be recommending it.

We also need to recognize that P4P is already a certainty for many of us. That means someone is defining the measures by which we’ll be judged—and it might as well be us.

Private payers will have big impact

Although the Center for Medicare and Medicaid Services (CMS) is working with various physician groups and health organizations on several demonstration projects,⁵ its programs are complicated and not germane to many ObGyns at this time. We will see far greater impact on our practices from the private-payer P4P programs that are coming.

Most programs start simply

A typical privately sponsored P4P program usually starts off relatively simply and then, upon review (usually annually), is modified as the capabilities of both the sponsor and participants expand. One major insurer (a national payer) has a program that tracks several “process measures” (as opposed to “outcomes”). These include:

These are all HEDIS measures, and the plan itself is measured through them and other factors by the National Committee on Quality Assurance (NCQA). Accomplishing these goals is good not only for our patients (because they are undergoing appropriate screening), but also for the plan, whose NCQA ratings will improve as a result of improved HEDIS compliance.

The program also measures the extent to which a group adopts technology such as electronic medical records (EMRs), electronic health records, e-prescribing, and an electronic disease registry. This last item can be something as simple as a recall system within the larger practice-management system to ensure that patients with abnormal Pap tests, mammograms, and other lab studies are not lost to follow-up.

First, learn to walk

As in the example above, a program should start with several easy-to-measure indicators, such as processes that are either done or not done, whose performance can be tracked through administrative (billing) data. After some attention is focused on these indicators and as goals are reached, the indicators may continue to be monitored or be put aside for a variety of reasons. Gradually, other, more sophisticated measures will be introduced.

The program should mature as our experience grows and data systems improve so that, ultimately, we look at true indications that quality has improved—better outcomes, hopefully at a lower cost.

Emphasis on generic drugs will save dollars

For many plans, increases in generic pharmacy utilization will be rewarded. Now, the cynics among us might conclude that P4P is really all about saving money for the health plans. Remember, however, that most plans have tiered copays for prescriptions, and the patient herself will save a substantial amount in copays if you can prescribe a generic alternative—particularly in high-volume pharmaceutical areas.

Also realize that, if we want a P4P program to reward participants without taking away from those who don’t achieve their goals, the money has to come from somewhere. Savings generated from a successful pharmaceutical program can drive the P4P program and pay for more substantial rewards.

How your patients benefit from P4P

Assuming a program actually gets us to change our behavior in a positive way, it should result in improved quality of care. This entails obvious benefits for our patients, such as when we succeed in getting a woman to obtain a mammogram. Let’s say the P4P incentive to increase the rate of mammography leads us to change our office workflow and actually make the mammography appointment for the patient before she leaves our office. This may “cost” us a bit more staff time, but it will help us meet a goal that will increase our return from the P4P program and help the patient get a needed service.

We briefly touched on the reduced cost of generic drugs, which has the potential to save the payer incredible sums of money. But this reduction in cost has benefits for the patient, too, who may appreciate the lower out-of-pocket cost of generic drugs.

My experience: Better postpartum depression, chlamydia screening

Last year, one of our programs included a measure of postpartum depression screening. To meet the goal, we developed a brief worksheet that included the Edinburgh Depression Scale. This worksheet was distributed throughout the practice, and almost everyone used it at the postpartum visit. Our doctors and midwives were amazed at the number of cases of even mild to moderate depression that were discovered using this tool, and felt they had truly improved the quality of care by performing this screening more formally.

Chlamydia screening is another example. By implementing it in a more wholesale fashion, screening becomes easier to perform. Value judgments about a patient’s lifestyle are no longer necessary, and patients accept the screening as part of a larger program rather than as a by-product of their “high-risk” lifestyle.

The bottom line: If appropriate measures are included, we should be able to change clinical behavior and improve patient care.

Bonus could be bigger than you think

Rewards can be substantial in P4P programs. For example, they might consist of a bonus check delivered to the practice once or twice a year, or enhancement of the fee schedule by a certain percentage for the following year. The bonus check, too, may be based on a percentage calculated on top of total earnings from that payer during the time period measured. The precise enhancement possible is proprietary information for most plans, but generally ranges from 0% to high single digits.

That may not sound like much to you. But let’s assume you can earn up to 7%. Let’s also assume you have annual collections of $1 million in your practice and a particular payer is responsible for 25% of your revenues. That 7% would total an additional $17,500. If all your payers sponsored P4P programs and you did as well across the board, that would result in more than $70,000 in enhanced revenues—right to your bottom line.

Who’s looking out for ObGyns?

Many organizations are focusing on P4P, but the activities of the American College of Obstetricians and Gynecologists (ACOG) are most relevant. ACOG has been developing performance measures and plans to incorporate them into new practice bulletins. So far, 21 measures have been developed and are being beta-tested. Approximately 40 more measures are under consideration. The biggest problem to date: The data needed to evaluate performance are not readily available without chart review.⁶

How data are obtained is a rate-limiting step at this point—and perhaps always will be. Chart reviews are highly inefficient and costly, and often rely on extrapolation of results from a limited sample to the whole universe of charts. Sampling errors may be unavoidable.

Large groups may have a technology advantage if they can afford sophisticated practice-management systems—or even EMRs—that make it easier for them to prove compliance with a P4P program. Smaller groups would face increased costs for “mining” their own data manually, or find it necessary to rely on data developed by the P4P sponsor.

One of ACOG’s chief concerns (as well as that of other physician-friendly organizations) is design of a P4P program that can be easily implemented in any size practice.

EMR use remains limited

A recent article at www.amednews.com cites a 2003 survey showing that only about 25% of physicians have access to EMRs.⁷ A more recent article from Health Affairs puts that figure below 20% and identifies barriers to EMR implementation.⁸

The important point: Until we all use EMRs in our practices, P4P programs must be designed to work within the limitations of our data capabilities.

The Accreditation Association for Ambulatory Health Care’s (AAAHC) Institute for Quality Improvement has developed principles/guidelines for P4P (see www.aaahc.org), as has the AMA, with agreement in many of these areas.

Will anything bad happen if you do not participate?

In an age when “consumer-driven health care” and “transparency” are becoming everyday mantras, a practice must stay ahead of the curve as much as possible and not be left on the platform as the train pulls away. Make no mistake, part of the P4P rewards system in the future will be public recognition, which will help payers drive their members to the “better” doctors. A refusal to participate in a P4P program might initiate a downward spiral from which it may be difficult to recover.

I don’t mean to imply that the move to consumer-driven health care is necessarily a bad thing. After all, ObGyns are frequently chosen by patients on the basis of word-of-mouth recommendations. I’m simply saying that, if data about us are going to be available for members to peruse prior to their selection of a provider, we should try to control that data as much as possible. It is vitally important that measures used to qualify us as “high performers” are, first of all, meaningful and, just as important, accurate.

A major risk is that a focus on process goals interferes with our attention to outcomes. What good is it if every patient undergoes cervical cancer screening if we don’t properly triage abnormal results? P4P should not distract us from what should be our raison d’être: giving the best quality care we can, leading to the best outcomes.

How can we prepare?

And remember, at least in theory, P4P makes sense. If we can accurately measure quality and fairly identify higher-quality providers, we can reward them appropriately. If it is possible to improve quality by driving more providers to meet higher standards, then the program is worthwhile.

Most of us feel that we are at least among “the best” in our practice market area. Here is an opportunity to prove it and earn that gold star!

The author reports no financial relationships relevant to this article.

Like everything else, Pay for Performance (P4P) has inherent rewards and risks. For our patients, rewards include improved clinical care and outcomes, and for us, enhanced earnings. Among potential risks are a failure to earn higher compensation if we don’t participate in a voluntary P4P program, and/or finding our practices excluded from “preferred” status as more plans move toward tiered networks. P4P might be one way a plan decides which practices to include in a preferred network, advertising only practices that meet the “higher standards” of P4P.

Like it or not, P4P programs are already a reality for many of us, and their continued proliferation seems inevitable. This article describes the typical trajectory of a P4P program, the importance of being involved in program design as early as possible, and the challenges and successes of P4P thus far.

P4P goes a long way back

In 1986, Robert Fulgham wrote an insightful book entitled All I Really Need to Know I Learned in Kindergarten.¹ It’s hard to argue with the basic premise of that title. When I think back to my early school years, I remember well the reward for achievement: a gold star. And I was intent upon achieving my teacher’s goals. Why? For the gold star, of course. That was my first experience with P4P.

Let’s fast forward a few decades to focus on more sophisticated versions of the gold star, and consider what we need to know to be ready for P4P in our own practices.

5 critical questions

Although our involvement with P4P in health care has so far been limited, we are rapidly recognizing some of the challenges involved. Questions that must be answered include (but clearly are not limited to) the following:

Although a Robert Wood Johnson Foundation report issued in November 2005 concluded that P4P programs “can improve both medical care and quality of life by giving health-care providers a financial incentive to seek measurable improvements in the health of their patients,”² it may be too soon to make such a statement. According to a comprehensive and heavily documented article from the August 15 issue of Annals of Internal Medicine,³ “ongoing monitoring of incentive programs is critical to determine the effectiveness of financial incentives and their possible unintended effects on quality of care.”

Answers are on the way

We should soon be able to begin answering some of these questions, however. According to a major survey from 2005, the number of P4P programs in the United States more than tripled over the previous 2 to 3 years, totaling 115 in 2005,⁴ and it is very likely that the rate of increase will accelerate. The 2005 survey also disclosed some key findings, including the following:

Measures that overlap 2 specialties are not necessarily bad

Measuring “clinical improvement” or “quality” is particularly challenging. Outcomes are difficult to measure and influenced by many factors, only some of which are within our clinical control.

Should we use Health Plan Employer Data and Information Set (HEDIS) measures as a proxy for quality, such as rates of cervical or breast cancer screening? We must agree that it's good to screen for breast and cervical cancer. Unfortunately, many HEDIS measures fall into the no-man’s-land between obstetrics and gynecology and primary care—especially something like mammogram compliance.

As much as possible, we need to have input into program design, and should always suggest measures that fall more clearly within our domain, over which we have more control. However, measures that overlap 2 specialties are not necessarily bad. We will share the credit even if the primary-care physician (PCP) is the one who gets the patient to go for her mammogram—and the likelihood that the patient will be motivated to do so will be doubled, because both the PCP and the ObGyn will be recommending it.

We also need to recognize that P4P is already a certainty for many of us. That means someone is defining the measures by which we’ll be judged—and it might as well be us.

Private payers will have big impact

Although the Center for Medicare and Medicaid Services (CMS) is working with various physician groups and health organizations on several demonstration projects,⁵ its programs are complicated and not germane to many ObGyns at this time. We will see far greater impact on our practices from the private-payer P4P programs that are coming.

Most programs start simply

A typical privately sponsored P4P program usually starts off relatively simply and then, upon review (usually annually), is modified as the capabilities of both the sponsor and participants expand. One major insurer (a national payer) has a program that tracks several “process measures” (as opposed to “outcomes”). These include:

These are all HEDIS measures, and the plan itself is measured through them and other factors by the National Committee on Quality Assurance (NCQA). Accomplishing these goals is good not only for our patients (because they are undergoing appropriate screening), but also for the plan, whose NCQA ratings will improve as a result of improved HEDIS compliance.

The program also measures the extent to which a group adopts technology such as electronic medical records (EMRs), electronic health records, e-prescribing, and an electronic disease registry. This last item can be something as simple as a recall system within the larger practice-management system to ensure that patients with abnormal Pap tests, mammograms, and other lab studies are not lost to follow-up.

First, learn to walk

As in the example above, a program should start with several easy-to-measure indicators, such as processes that are either done or not done, whose performance can be tracked through administrative (billing) data. After some attention is focused on these indicators and as goals are reached, the indicators may continue to be monitored or be put aside for a variety of reasons. Gradually, other, more sophisticated measures will be introduced.

The program should mature as our experience grows and data systems improve so that, ultimately, we look at true indications that quality has improved—better outcomes, hopefully at a lower cost.

Emphasis on generic drugs will save dollars

For many plans, increases in generic pharmacy utilization will be rewarded. Now, the cynics among us might conclude that P4P is really all about saving money for the health plans. Remember, however, that most plans have tiered copays for prescriptions, and the patient herself will save a substantial amount in copays if you can prescribe a generic alternative—particularly in high-volume pharmaceutical areas.

Also realize that, if we want a P4P program to reward participants without taking away from those who don’t achieve their goals, the money has to come from somewhere. Savings generated from a successful pharmaceutical program can drive the P4P program and pay for more substantial rewards.

How your patients benefit from P4P

Assuming a program actually gets us to change our behavior in a positive way, it should result in improved quality of care. This entails obvious benefits for our patients, such as when we succeed in getting a woman to obtain a mammogram. Let’s say the P4P incentive to increase the rate of mammography leads us to change our office workflow and actually make the mammography appointment for the patient before she leaves our office. This may “cost” us a bit more staff time, but it will help us meet a goal that will increase our return from the P4P program and help the patient get a needed service.

We briefly touched on the reduced cost of generic drugs, which has the potential to save the payer incredible sums of money. But this reduction in cost has benefits for the patient, too, who may appreciate the lower out-of-pocket cost of generic drugs.

My experience: Better postpartum depression, chlamydia screening

Last year, one of our programs included a measure of postpartum depression screening. To meet the goal, we developed a brief worksheet that included the Edinburgh Depression Scale. This worksheet was distributed throughout the practice, and almost everyone used it at the postpartum visit. Our doctors and midwives were amazed at the number of cases of even mild to moderate depression that were discovered using this tool, and felt they had truly improved the quality of care by performing this screening more formally.

Chlamydia screening is another example. By implementing it in a more wholesale fashion, screening becomes easier to perform. Value judgments about a patient’s lifestyle are no longer necessary, and patients accept the screening as part of a larger program rather than as a by-product of their “high-risk” lifestyle.

The bottom line: If appropriate measures are included, we should be able to change clinical behavior and improve patient care.

Bonus could be bigger than you think

Rewards can be substantial in P4P programs. For example, they might consist of a bonus check delivered to the practice once or twice a year, or enhancement of the fee schedule by a certain percentage for the following year. The bonus check, too, may be based on a percentage calculated on top of total earnings from that payer during the time period measured. The precise enhancement possible is proprietary information for most plans, but generally ranges from 0% to high single digits.

That may not sound like much to you. But let’s assume you can earn up to 7%. Let’s also assume you have annual collections of $1 million in your practice and a particular payer is responsible for 25% of your revenues. That 7% would total an additional $17,500. If all your payers sponsored P4P programs and you did as well across the board, that would result in more than $70,000 in enhanced revenues—right to your bottom line.

Who’s looking out for ObGyns?

Many organizations are focusing on P4P, but the activities of the American College of Obstetricians and Gynecologists (ACOG) are most relevant. ACOG has been developing performance measures and plans to incorporate them into new practice bulletins. So far, 21 measures have been developed and are being beta-tested. Approximately 40 more measures are under consideration. The biggest problem to date: The data needed to evaluate performance are not readily available without chart review.⁶

How data are obtained is a rate-limiting step at this point—and perhaps always will be. Chart reviews are highly inefficient and costly, and often rely on extrapolation of results from a limited sample to the whole universe of charts. Sampling errors may be unavoidable.

Large groups may have a technology advantage if they can afford sophisticated practice-management systems—or even EMRs—that make it easier for them to prove compliance with a P4P program. Smaller groups would face increased costs for “mining” their own data manually, or find it necessary to rely on data developed by the P4P sponsor.

One of ACOG’s chief concerns (as well as that of other physician-friendly organizations) is design of a P4P program that can be easily implemented in any size practice.

EMR use remains limited

A recent article at www.amednews.com cites a 2003 survey showing that only about 25% of physicians have access to EMRs.⁷ A more recent article from Health Affairs puts that figure below 20% and identifies barriers to EMR implementation.⁸

The important point: Until we all use EMRs in our practices, P4P programs must be designed to work within the limitations of our data capabilities.

The Accreditation Association for Ambulatory Health Care’s (AAAHC) Institute for Quality Improvement has developed principles/guidelines for P4P (see www.aaahc.org), as has the AMA, with agreement in many of these areas.

Will anything bad happen if you do not participate?

In an age when “consumer-driven health care” and “transparency” are becoming everyday mantras, a practice must stay ahead of the curve as much as possible and not be left on the platform as the train pulls away. Make no mistake, part of the P4P rewards system in the future will be public recognition, which will help payers drive their members to the “better” doctors. A refusal to participate in a P4P program might initiate a downward spiral from which it may be difficult to recover.

I don’t mean to imply that the move to consumer-driven health care is necessarily a bad thing. After all, ObGyns are frequently chosen by patients on the basis of word-of-mouth recommendations. I’m simply saying that, if data about us are going to be available for members to peruse prior to their selection of a provider, we should try to control that data as much as possible. It is vitally important that measures used to qualify us as “high performers” are, first of all, meaningful and, just as important, accurate.

A major risk is that a focus on process goals interferes with our attention to outcomes. What good is it if every patient undergoes cervical cancer screening if we don’t properly triage abnormal results? P4P should not distract us from what should be our raison d’être: giving the best quality care we can, leading to the best outcomes.

How can we prepare?

And remember, at least in theory, P4P makes sense. If we can accurately measure quality and fairly identify higher-quality providers, we can reward them appropriately. If it is possible to improve quality by driving more providers to meet higher standards, then the program is worthwhile.

Most of us feel that we are at least among “the best” in our practice market area. Here is an opportunity to prove it and earn that gold star!

The author reports no financial relationships relevant to this article.

Like everything else, Pay for Performance (P4P) has inherent rewards and risks. For our patients, rewards include improved clinical care and outcomes, and for us, enhanced earnings. Among potential risks are a failure to earn higher compensation if we don’t participate in a voluntary P4P program, and/or finding our practices excluded from “preferred” status as more plans move toward tiered networks. P4P might be one way a plan decides which practices to include in a preferred network, advertising only practices that meet the “higher standards” of P4P.

Like it or not, P4P programs are already a reality for many of us, and their continued proliferation seems inevitable. This article describes the typical trajectory of a P4P program, the importance of being involved in program design as early as possible, and the challenges and successes of P4P thus far.

P4P goes a long way back

In 1986, Robert Fulgham wrote an insightful book entitled All I Really Need to Know I Learned in Kindergarten.¹ It’s hard to argue with the basic premise of that title. When I think back to my early school years, I remember well the reward for achievement: a gold star. And I was intent upon achieving my teacher’s goals. Why? For the gold star, of course. That was my first experience with P4P.

Let’s fast forward a few decades to focus on more sophisticated versions of the gold star, and consider what we need to know to be ready for P4P in our own practices.

5 critical questions

Although our involvement with P4P in health care has so far been limited, we are rapidly recognizing some of the challenges involved. Questions that must be answered include (but clearly are not limited to) the following:

Although a Robert Wood Johnson Foundation report issued in November 2005 concluded that P4P programs “can improve both medical care and quality of life by giving health-care providers a financial incentive to seek measurable improvements in the health of their patients,”² it may be too soon to make such a statement. According to a comprehensive and heavily documented article from the August 15 issue of Annals of Internal Medicine,³ “ongoing monitoring of incentive programs is critical to determine the effectiveness of financial incentives and their possible unintended effects on quality of care.”

Answers are on the way

We should soon be able to begin answering some of these questions, however. According to a major survey from 2005, the number of P4P programs in the United States more than tripled over the previous 2 to 3 years, totaling 115 in 2005,⁴ and it is very likely that the rate of increase will accelerate. The 2005 survey also disclosed some key findings, including the following:

Measures that overlap 2 specialties are not necessarily bad

Measuring “clinical improvement” or “quality” is particularly challenging. Outcomes are difficult to measure and influenced by many factors, only some of which are within our clinical control.

Should we use Health Plan Employer Data and Information Set (HEDIS) measures as a proxy for quality, such as rates of cervical or breast cancer screening? We must agree that it's good to screen for breast and cervical cancer. Unfortunately, many HEDIS measures fall into the no-man’s-land between obstetrics and gynecology and primary care—especially something like mammogram compliance.

As much as possible, we need to have input into program design, and should always suggest measures that fall more clearly within our domain, over which we have more control. However, measures that overlap 2 specialties are not necessarily bad. We will share the credit even if the primary-care physician (PCP) is the one who gets the patient to go for her mammogram—and the likelihood that the patient will be motivated to do so will be doubled, because both the PCP and the ObGyn will be recommending it.

We also need to recognize that P4P is already a certainty for many of us. That means someone is defining the measures by which we’ll be judged—and it might as well be us.

Private payers will have big impact

Although the Center for Medicare and Medicaid Services (CMS) is working with various physician groups and health organizations on several demonstration projects,⁵ its programs are complicated and not germane to many ObGyns at this time. We will see far greater impact on our practices from the private-payer P4P programs that are coming.

Most programs start simply

A typical privately sponsored P4P program usually starts off relatively simply and then, upon review (usually annually), is modified as the capabilities of both the sponsor and participants expand. One major insurer (a national payer) has a program that tracks several “process measures” (as opposed to “outcomes”). These include:

These are all HEDIS measures, and the plan itself is measured through them and other factors by the National Committee on Quality Assurance (NCQA). Accomplishing these goals is good not only for our patients (because they are undergoing appropriate screening), but also for the plan, whose NCQA ratings will improve as a result of improved HEDIS compliance.

The program also measures the extent to which a group adopts technology such as electronic medical records (EMRs), electronic health records, e-prescribing, and an electronic disease registry. This last item can be something as simple as a recall system within the larger practice-management system to ensure that patients with abnormal Pap tests, mammograms, and other lab studies are not lost to follow-up.

First, learn to walk

As in the example above, a program should start with several easy-to-measure indicators, such as processes that are either done or not done, whose performance can be tracked through administrative (billing) data. After some attention is focused on these indicators and as goals are reached, the indicators may continue to be monitored or be put aside for a variety of reasons. Gradually, other, more sophisticated measures will be introduced.

The program should mature as our experience grows and data systems improve so that, ultimately, we look at true indications that quality has improved—better outcomes, hopefully at a lower cost.

Emphasis on generic drugs will save dollars

For many plans, increases in generic pharmacy utilization will be rewarded. Now, the cynics among us might conclude that P4P is really all about saving money for the health plans. Remember, however, that most plans have tiered copays for prescriptions, and the patient herself will save a substantial amount in copays if you can prescribe a generic alternative—particularly in high-volume pharmaceutical areas.

Also realize that, if we want a P4P program to reward participants without taking away from those who don’t achieve their goals, the money has to come from somewhere. Savings generated from a successful pharmaceutical program can drive the P4P program and pay for more substantial rewards.

How your patients benefit from P4P

Assuming a program actually gets us to change our behavior in a positive way, it should result in improved quality of care. This entails obvious benefits for our patients, such as when we succeed in getting a woman to obtain a mammogram. Let’s say the P4P incentive to increase the rate of mammography leads us to change our office workflow and actually make the mammography appointment for the patient before she leaves our office. This may “cost” us a bit more staff time, but it will help us meet a goal that will increase our return from the P4P program and help the patient get a needed service.

We briefly touched on the reduced cost of generic drugs, which has the potential to save the payer incredible sums of money. But this reduction in cost has benefits for the patient, too, who may appreciate the lower out-of-pocket cost of generic drugs.

My experience: Better postpartum depression, chlamydia screening

Last year, one of our programs included a measure of postpartum depression screening. To meet the goal, we developed a brief worksheet that included the Edinburgh Depression Scale. This worksheet was distributed throughout the practice, and almost everyone used it at the postpartum visit. Our doctors and midwives were amazed at the number of cases of even mild to moderate depression that were discovered using this tool, and felt they had truly improved the quality of care by performing this screening more formally.

Chlamydia screening is another example. By implementing it in a more wholesale fashion, screening becomes easier to perform. Value judgments about a patient’s lifestyle are no longer necessary, and patients accept the screening as part of a larger program rather than as a by-product of their “high-risk” lifestyle.

The bottom line: If appropriate measures are included, we should be able to change clinical behavior and improve patient care.

Bonus could be bigger than you think

Rewards can be substantial in P4P programs. For example, they might consist of a bonus check delivered to the practice once or twice a year, or enhancement of the fee schedule by a certain percentage for the following year. The bonus check, too, may be based on a percentage calculated on top of total earnings from that payer during the time period measured. The precise enhancement possible is proprietary information for most plans, but generally ranges from 0% to high single digits.

That may not sound like much to you. But let’s assume you can earn up to 7%. Let’s also assume you have annual collections of $1 million in your practice and a particular payer is responsible for 25% of your revenues. That 7% would total an additional $17,500. If all your payers sponsored P4P programs and you did as well across the board, that would result in more than $70,000 in enhanced revenues—right to your bottom line.

Who’s looking out for ObGyns?

Many organizations are focusing on P4P, but the activities of the American College of Obstetricians and Gynecologists (ACOG) are most relevant. ACOG has been developing performance measures and plans to incorporate them into new practice bulletins. So far, 21 measures have been developed and are being beta-tested. Approximately 40 more measures are under consideration. The biggest problem to date: The data needed to evaluate performance are not readily available without chart review.⁶

How data are obtained is a rate-limiting step at this point—and perhaps always will be. Chart reviews are highly inefficient and costly, and often rely on extrapolation of results from a limited sample to the whole universe of charts. Sampling errors may be unavoidable.

Large groups may have a technology advantage if they can afford sophisticated practice-management systems—or even EMRs—that make it easier for them to prove compliance with a P4P program. Smaller groups would face increased costs for “mining” their own data manually, or find it necessary to rely on data developed by the P4P sponsor.

One of ACOG’s chief concerns (as well as that of other physician-friendly organizations) is design of a P4P program that can be easily implemented in any size practice.

EMR use remains limited

A recent article at www.amednews.com cites a 2003 survey showing that only about 25% of physicians have access to EMRs.⁷ A more recent article from Health Affairs puts that figure below 20% and identifies barriers to EMR implementation.⁸

The important point: Until we all use EMRs in our practices, P4P programs must be designed to work within the limitations of our data capabilities.

The Accreditation Association for Ambulatory Health Care’s (AAAHC) Institute for Quality Improvement has developed principles/guidelines for P4P (see www.aaahc.org), as has the AMA, with agreement in many of these areas.

Will anything bad happen if you do not participate?

In an age when “consumer-driven health care” and “transparency” are becoming everyday mantras, a practice must stay ahead of the curve as much as possible and not be left on the platform as the train pulls away. Make no mistake, part of the P4P rewards system in the future will be public recognition, which will help payers drive their members to the “better” doctors. A refusal to participate in a P4P program might initiate a downward spiral from which it may be difficult to recover.

I don’t mean to imply that the move to consumer-driven health care is necessarily a bad thing. After all, ObGyns are frequently chosen by patients on the basis of word-of-mouth recommendations. I’m simply saying that, if data about us are going to be available for members to peruse prior to their selection of a provider, we should try to control that data as much as possible. It is vitally important that measures used to qualify us as “high performers” are, first of all, meaningful and, just as important, accurate.

A major risk is that a focus on process goals interferes with our attention to outcomes. What good is it if every patient undergoes cervical cancer screening if we don’t properly triage abnormal results? P4P should not distract us from what should be our raison d’être: giving the best quality care we can, leading to the best outcomes.

How can we prepare?

And remember, at least in theory, P4P makes sense. If we can accurately measure quality and fairly identify higher-quality providers, we can reward them appropriately. If it is possible to improve quality by driving more providers to meet higher standards, then the program is worthwhile.

Most of us feel that we are at least among “the best” in our practice market area. Here is an opportunity to prove it and earn that gold star!

The author reports no financial relationships relevant to this article.

Last year I wrote a column on guidelines for hiring employees, and I've been receiving questions on that subject ever since. (If you missed that column, go to www.skinandallergynews.com

Many questions concern checking potential employees' references. One industry publication estimates that 40% of resumes contain false or “tweaked” information; my opinion, based on more than 25 years of hiring, is that estimate is wildly optimistic. After all, many applicants are convinced padding is necessary to get the job they want. As a young performing arts student once told me in my office, “Show me an actor who hasn't padded his resume, and I'll show you a waiter.”

Given that so many resumes are less than completely accurate, it is astonishing how many employers do not bother to check them, and the applicants who submit them, thoroughly. Physicians are particularly remiss in that department. And those physicians who do check at all often do far less than they should.

If you don't think it's worth the trouble, know that “negligent hiring” litigation is on the rise. If the actions of one of your employees hurts someone, and it can be shown that you knew or should have known that said employee had similar problems in the past, you could be liable—and such lawsuits, of course, fall outside the protection of your malpractice insurance.

As an aside, I have mentioned before the advisability of obtaining Employee Practices Liability Insurance (EPLI). It is inexpensive and covers your legal expenses in the event of negligent hiring charges, as well as wrongful termination and sexual misconduct or harassment suits.

A background check should never be limited to simply calling the two or three most recent employers. In this era of universal litigation, employers are often unwilling to be candid with you regarding a former employee.

This doesn't mean you should not call them anyway, of course. With reluctant former employers, my favorite question is, “Would you hire this employee back?” Even if the answer is “yes,” he or she will often give you good clues, with hesitations, voice inflections, and other intangibles, of how enthusiastic they truly are about that prospect.

Other information is available to you when considering applicants, and you should take advantage of it. In addition to interviews of former employers, a background check should verify the applicant's Social Security number. It should also include an analysis of his or her complete work history and a full credit report. It can also include credit payment records, driving records, and any criminal history. This is all a matter of public record and is often easily accessible via the Internet.

Bankruptcy information also is a public record and can be helpful, although you cannot discriminate against an applicant solely because he or she has filed for bankruptcy. The military can disclose a veteran's name, rank, salary, assignments, and awards without consent. Driving records are not confidential and can be released without consent.

The inquiries should be related to the job. For example, if the applicant will be handling money, it would be reasonable to find out if he or she has a history of embezzlement or theft.

Some information cannot be included in a background check, however. Education records are confidential and cannot be released without the consent of the student. Laws vary on checking criminal history. Federal guidelines permit disclosure of criminal convictions indefinitely, but some states don't allow questions about arrests or convictions beyond a certain point (usually 7 years). Others only allow consideration of criminal history for certain positions.

Employers cannot request medical records and may not make hiring decisions based on an applicant's disability. The same holds true for workers' compensation records. However, you may inquire about an applicant's ability to perform a certain job.

If you have a large practice and hire many employees, it may pay to have an outside company perform background checks. However, such outsourcing brings you under the jurisdiction of the federal Fair Credit Reporting Act, which sets national standards for employment screening. This means the outside agency must notify applicants in writing and get their written authorization to do the background check (not true if you're doing the checks yourself).

And if you decide not to hire specifically because of an outside report's findings, you must disclose this to the applicant, along with the name of the agency which did the investigating, and information on his or her right to dispute the report.

Last year I wrote a column on guidelines for hiring employees, and I've been receiving questions on that subject ever since. (If you missed that column, go to www.skinandallergynews.com

Many questions concern checking potential employees' references. One industry publication estimates that 40% of resumes contain false or “tweaked” information; my opinion, based on more than 25 years of hiring, is that estimate is wildly optimistic. After all, many applicants are convinced padding is necessary to get the job they want. As a young performing arts student once told me in my office, “Show me an actor who hasn't padded his resume, and I'll show you a waiter.”

Given that so many resumes are less than completely accurate, it is astonishing how many employers do not bother to check them, and the applicants who submit them, thoroughly. Physicians are particularly remiss in that department. And those physicians who do check at all often do far less than they should.

If you don't think it's worth the trouble, know that “negligent hiring” litigation is on the rise. If the actions of one of your employees hurts someone, and it can be shown that you knew or should have known that said employee had similar problems in the past, you could be liable—and such lawsuits, of course, fall outside the protection of your malpractice insurance.

As an aside, I have mentioned before the advisability of obtaining Employee Practices Liability Insurance (EPLI). It is inexpensive and covers your legal expenses in the event of negligent hiring charges, as well as wrongful termination and sexual misconduct or harassment suits.

A background check should never be limited to simply calling the two or three most recent employers. In this era of universal litigation, employers are often unwilling to be candid with you regarding a former employee.

This doesn't mean you should not call them anyway, of course. With reluctant former employers, my favorite question is, “Would you hire this employee back?” Even if the answer is “yes,” he or she will often give you good clues, with hesitations, voice inflections, and other intangibles, of how enthusiastic they truly are about that prospect.

Other information is available to you when considering applicants, and you should take advantage of it. In addition to interviews of former employers, a background check should verify the applicant's Social Security number. It should also include an analysis of his or her complete work history and a full credit report. It can also include credit payment records, driving records, and any criminal history. This is all a matter of public record and is often easily accessible via the Internet.

Bankruptcy information also is a public record and can be helpful, although you cannot discriminate against an applicant solely because he or she has filed for bankruptcy. The military can disclose a veteran's name, rank, salary, assignments, and awards without consent. Driving records are not confidential and can be released without consent.

The inquiries should be related to the job. For example, if the applicant will be handling money, it would be reasonable to find out if he or she has a history of embezzlement or theft.

Some information cannot be included in a background check, however. Education records are confidential and cannot be released without the consent of the student. Laws vary on checking criminal history. Federal guidelines permit disclosure of criminal convictions indefinitely, but some states don't allow questions about arrests or convictions beyond a certain point (usually 7 years). Others only allow consideration of criminal history for certain positions.

Employers cannot request medical records and may not make hiring decisions based on an applicant's disability. The same holds true for workers' compensation records. However, you may inquire about an applicant's ability to perform a certain job.

If you have a large practice and hire many employees, it may pay to have an outside company perform background checks. However, such outsourcing brings you under the jurisdiction of the federal Fair Credit Reporting Act, which sets national standards for employment screening. This means the outside agency must notify applicants in writing and get their written authorization to do the background check (not true if you're doing the checks yourself).

And if you decide not to hire specifically because of an outside report's findings, you must disclose this to the applicant, along with the name of the agency which did the investigating, and information on his or her right to dispute the report.

Last year I wrote a column on guidelines for hiring employees, and I've been receiving questions on that subject ever since. (If you missed that column, go to www.skinandallergynews.com

Many questions concern checking potential employees' references. One industry publication estimates that 40% of resumes contain false or “tweaked” information; my opinion, based on more than 25 years of hiring, is that estimate is wildly optimistic. After all, many applicants are convinced padding is necessary to get the job they want. As a young performing arts student once told me in my office, “Show me an actor who hasn't padded his resume, and I'll show you a waiter.”

Given that so many resumes are less than completely accurate, it is astonishing how many employers do not bother to check them, and the applicants who submit them, thoroughly. Physicians are particularly remiss in that department. And those physicians who do check at all often do far less than they should.

If you don't think it's worth the trouble, know that “negligent hiring” litigation is on the rise. If the actions of one of your employees hurts someone, and it can be shown that you knew or should have known that said employee had similar problems in the past, you could be liable—and such lawsuits, of course, fall outside the protection of your malpractice insurance.

As an aside, I have mentioned before the advisability of obtaining Employee Practices Liability Insurance (EPLI). It is inexpensive and covers your legal expenses in the event of negligent hiring charges, as well as wrongful termination and sexual misconduct or harassment suits.

A background check should never be limited to simply calling the two or three most recent employers. In this era of universal litigation, employers are often unwilling to be candid with you regarding a former employee.

This doesn't mean you should not call them anyway, of course. With reluctant former employers, my favorite question is, “Would you hire this employee back?” Even if the answer is “yes,” he or she will often give you good clues, with hesitations, voice inflections, and other intangibles, of how enthusiastic they truly are about that prospect.

Other information is available to you when considering applicants, and you should take advantage of it. In addition to interviews of former employers, a background check should verify the applicant's Social Security number. It should also include an analysis of his or her complete work history and a full credit report. It can also include credit payment records, driving records, and any criminal history. This is all a matter of public record and is often easily accessible via the Internet.

Bankruptcy information also is a public record and can be helpful, although you cannot discriminate against an applicant solely because he or she has filed for bankruptcy. The military can disclose a veteran's name, rank, salary, assignments, and awards without consent. Driving records are not confidential and can be released without consent.

The inquiries should be related to the job. For example, if the applicant will be handling money, it would be reasonable to find out if he or she has a history of embezzlement or theft.

Some information cannot be included in a background check, however. Education records are confidential and cannot be released without the consent of the student. Laws vary on checking criminal history. Federal guidelines permit disclosure of criminal convictions indefinitely, but some states don't allow questions about arrests or convictions beyond a certain point (usually 7 years). Others only allow consideration of criminal history for certain positions.

Employers cannot request medical records and may not make hiring decisions based on an applicant's disability. The same holds true for workers' compensation records. However, you may inquire about an applicant's ability to perform a certain job.

If you have a large practice and hire many employees, it may pay to have an outside company perform background checks. However, such outsourcing brings you under the jurisdiction of the federal Fair Credit Reporting Act, which sets national standards for employment screening. This means the outside agency must notify applicants in writing and get their written authorization to do the background check (not true if you're doing the checks yourself).

And if you decide not to hire specifically because of an outside report's findings, you must disclose this to the applicant, along with the name of the agency which did the investigating, and information on his or her right to dispute the report.

Nurse says OB used misoprostol to avoid working on weekends

A woman’s 4th child, born at 36 weeks’ gestation with lungs not fully developed, was diagnosed with respiratory distress syndrome, apnea, and hypotension. Intubated for 4 or 5 days and in neonatal intensive care for 11 days, the baby required an apnea machine whenever he slept for his first 3 months.

PATIENT’S CLAIM The ObGyn used misoprostol to induce labor prematurely without the mother’s knowledge. A nurse who had worked for the defendant testified that the defendant would use misoprostol on a patient’s cervix the Tuesday before she reached full term and thus avoided working on weekends, and that he had done this for more than a year without telling patients.

DOCTOR’S DEFENSE The doctor denied inducing labor or giving patients misoprostol and claimed the testimony of the former employee nurse was inconsistent. Also, the plaintiff had given birth previously to another baby at 36 weeks, and the younger child’s problems were the result of his prematurity.

VERDICT Defense verdict.

“Doctor is responsible for my divorce”

A 32-year-old woman, whose right fallopian tube had been removed after an ectopic pregnancy, presented to her doctor with abnormal bleeding. She said she had a negative pregnancy test 2 weeks earlier; her doctor diagnosed dysfunctional uterine bleeding. She returned with abdominal pain 2 weeks later. A 2nd ectopic pregnancy was found, plus a ruptured left fallopian tube, which was removed. She was unable to conceive naturally after this.

PATIENT’S CLAIM The doctor should have performed a pregnancy test and was negligent for not diagnosing and treating the 2nd ectopic pregnancy in a timely manner. Her inability to conceive led to divorce.

DOCTOR’S DEFENSE A urine pregnancy test was indeed performed when she presented initially and was found to be negative.

VERDICT Defense verdict.

Was surgeon’s peripheral neuropathy to blame for injury?

Following a vaginal hysterectomy resulting in injury to the urethra, a 35-year-old woman required 2 additional surgeries. She has residual urination frequency that is painful due to scarring.

PATIENT’S CLAIM The gynecologist’s peripheral neuropathy affected control of her hands, and she was negligent in injuring the urethra.

DOCTOR’S DEFENSE There was neither negligence nor a problem with her hand control. Also, the patient did not suffer any significant injury.

VERDICT $200,000 verdict against the doctor; settlement with the hospital for an undisclosed amount.

Did video prove excessive traction?

A pregnant woman, who had limited prenatal care, presented for postterm induction of labor. Shoulder dystocia was encountered. Within 30 seconds the baby was delivered, but the left arm was paralyzed.

PATIENT’S CLAIM Excessive traction was used during delivery. A video of the birth showed the doctor stretching the baby’s head 4 to 5 inches from the shoulders during the delivery.

DOCTOR’S DEFENSE Gentle traction was used to move the baby’s head in the proper direction.

VERDICT Defense verdict. Motion for new trial is pending.

Mother not given chance to change her mind

A woman delivered a baby with a clubfoot by cesarean section, at which time a tubal ligation was also done. Later the baby was found to have a severe congenital heart defect, and eventually died.

PATIENT’S CLAIM The mother claimed lack of informed consent regarding the tubal ligation because the doctor should have known the baby could have other problems. She would not have consented to the ligation if she had known of the baby’s chances of survival.

DOCTOR’S DEFENSE Not reported.

VERDICT Defense verdict. Motion for new trial is pending.

No bowel prep, then permanent incontinence

A 31-year-old woman had an anovaginal fistula surgically repaired by Doctor 1. The following year, Doctor 2 performed follow-up surgery. Five years later, the patient returned to Doctor 2, who determined that a thick band of scar tissue had replaced the external part of the sphincter muscle, causing permanent fecal incontinence. She sued Doctor 1 and the hospital.

PATIENT’S CLAIM Antibiotics should have been prescribed and complete bowel preparation performed before the initial surgery. During surgery, the fistulous tract and scar tissue were not completely resected and the layers were improperly closed. Stool softeners should have been prescribed after surgery.

DOCTOR’S DEFENSE Despite no documentation, Doctor 1 believed stool softeners were probably prescribed. No bowel preparation was needed, the fistulous tract and scar tissue were resected, and closure was done properly. Also, another fistula with rectal abscess formed after Doctor 2’s surgery. This required multiple incisions and drainages and caused the sphincter defect.

VERDICT Defense verdict.

Pregnant woman had cancer in swollen foot

A 24-year-old pregnant woman obtained prenatal care from various residents and supervising physicians at a prenatal clinic. She complained of pain and numbness in her left foot. By the time of delivery, the foot was swollen and she could not walk on it. No imaging studies were done before she was discharged from the hospital. Six months later, a biopsy indicated malignant rhabdomyosarcoma. The patient underwent chemotherapy and radiation, but died 2 years later.

PATIENT’S CLAIM The tumor was not diagnosed in a timely manner. Her complaints should have been investigated during her pregnancy or before discharge from the hospital following delivery.

DOCTOR’S DEFENSE Not reported.

VERDICT A jury awarded $7.7 million. Fault was distributed as follows: the group, 60%; physician 1, 25%; physician 2, 15%.

Urinary leakage, fistula blamed on cystotomy

A 40-year-old woman was diagnosed with uterine prolapse and underwent a vaginal hysterectomy. Dense adhesions found during surgery made the separation and removal of the cervix and uterus from the bladder difficult. An intentional cystotomy was performed and then repaired, but the patient developed a vesicovaginal fistula.

PATIENT’S CLAIM The hysterectomy was not performed properly because the cystotomy was contraindicated and resulted in a vesicovaginal fistula, and the incision for the cystotomy was not properly repaired. The patient also claimed that she suffered occasional urinary leakage during laughing, coughing, straining, and sexual activity.

DOCTOR’S DEFENSE The hysterectomy was performed properly, and the cystotomy helped prevent more serious damage to the urinary tract and bladder. The patient’s urinary leakage was due to overactive bladder, smoking, and age.

VERDICT Defense verdict.

Did the emergency excuse the retained sponge?

A 40-year-old woman underwent an emergency hysterectomy and oophorectomy, during which a surgical sponge was left in her pelvic cavity. The retained sponge, which was not diagnosed on a postoperative x-ray, was discovered when the patient was later admitted to the hospital for chest pain. The sponge and a large mass of purulent material were removed from her pelvic cavity, as was her remaining ovary due to adhesions.

PATIENT’S CLAIM The ObGyn was negligent for leaving a sponge in her pelvic cavity and then for not diagnosing it on postoperative x-ray. The defendant should have consulted the radiologist because the x-ray indicated a vague area of radiopacity. The patient also claimed early-onset menopause due to removal of the ovary.

DOCTOR’S DEFENSE The emergency circumstances of the initial surgery accounted for the retained sponge, and the radiologist never verbally informed him of the questionable x-ray finding.

VERDICT A pretrial settlement was reached with the hospital and assistant surgeon for an undisclosed amount.

Claim: Crash C-section team was tardy

A 21-year-old woman presented to the hospital after experiencing rupture of membranes, and was started on oxytocin. The OB found that labor progress and fetal monitoring strips were normal.

Five hours later, nurses noted signs of prolonged deceleration and began to prepare for an emergency cesarean section.

The anesthesiologist and OB were unavailable at that time, and it took about 34 minutes for a team to be assembled to deliver the infant.

Within 2 minutes, the child was delivered, but his Apgars were 0 at 1, 5, and 10 minutes and 1 at 15 minutes, and he suffered severe brain damage. Cord blood was not analyzed for blood gases.

PATIENT’S CLAIM The defendants were negligent for not anticipating or recognizing developing problems, which were evident as much as 1 hour before the OB’s visit and included hyperstimulation of the uterus and slow progress of labor.

DOCTOR’S DEFENSE The OB would have come in and probably delivered the child if he had been called earlier.

There was no indication of hypoxia or cause for concern until very late in the process, and the brain damage to the child was the result of an unanticipatable event that occurred 30 minutes before delivery.

VERDICT A $3.5 million present-value settlement was reached during trial.

The cases in this column are selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.

Nurse says OB used misoprostol to avoid working on weekends

A woman’s 4th child, born at 36 weeks’ gestation with lungs not fully developed, was diagnosed with respiratory distress syndrome, apnea, and hypotension. Intubated for 4 or 5 days and in neonatal intensive care for 11 days, the baby required an apnea machine whenever he slept for his first 3 months.

PATIENT’S CLAIM The ObGyn used misoprostol to induce labor prematurely without the mother’s knowledge. A nurse who had worked for the defendant testified that the defendant would use misoprostol on a patient’s cervix the Tuesday before she reached full term and thus avoided working on weekends, and that he had done this for more than a year without telling patients.

DOCTOR’S DEFENSE The doctor denied inducing labor or giving patients misoprostol and claimed the testimony of the former employee nurse was inconsistent. Also, the plaintiff had given birth previously to another baby at 36 weeks, and the younger child’s problems were the result of his prematurity.

VERDICT Defense verdict.

“Doctor is responsible for my divorce”

A 32-year-old woman, whose right fallopian tube had been removed after an ectopic pregnancy, presented to her doctor with abnormal bleeding. She said she had a negative pregnancy test 2 weeks earlier; her doctor diagnosed dysfunctional uterine bleeding. She returned with abdominal pain 2 weeks later. A 2nd ectopic pregnancy was found, plus a ruptured left fallopian tube, which was removed. She was unable to conceive naturally after this.

PATIENT’S CLAIM The doctor should have performed a pregnancy test and was negligent for not diagnosing and treating the 2nd ectopic pregnancy in a timely manner. Her inability to conceive led to divorce.

DOCTOR’S DEFENSE A urine pregnancy test was indeed performed when she presented initially and was found to be negative.

VERDICT Defense verdict.

Was surgeon’s peripheral neuropathy to blame for injury?

Following a vaginal hysterectomy resulting in injury to the urethra, a 35-year-old woman required 2 additional surgeries. She has residual urination frequency that is painful due to scarring.

PATIENT’S CLAIM The gynecologist’s peripheral neuropathy affected control of her hands, and she was negligent in injuring the urethra.

DOCTOR’S DEFENSE There was neither negligence nor a problem with her hand control. Also, the patient did not suffer any significant injury.

VERDICT $200,000 verdict against the doctor; settlement with the hospital for an undisclosed amount.

Did video prove excessive traction?

A pregnant woman, who had limited prenatal care, presented for postterm induction of labor. Shoulder dystocia was encountered. Within 30 seconds the baby was delivered, but the left arm was paralyzed.

PATIENT’S CLAIM Excessive traction was used during delivery. A video of the birth showed the doctor stretching the baby’s head 4 to 5 inches from the shoulders during the delivery.

DOCTOR’S DEFENSE Gentle traction was used to move the baby’s head in the proper direction.

VERDICT Defense verdict. Motion for new trial is pending.

Mother not given chance to change her mind

A woman delivered a baby with a clubfoot by cesarean section, at which time a tubal ligation was also done. Later the baby was found to have a severe congenital heart defect, and eventually died.

PATIENT’S CLAIM The mother claimed lack of informed consent regarding the tubal ligation because the doctor should have known the baby could have other problems. She would not have consented to the ligation if she had known of the baby’s chances of survival.

DOCTOR’S DEFENSE Not reported.

VERDICT Defense verdict. Motion for new trial is pending.

No bowel prep, then permanent incontinence

A 31-year-old woman had an anovaginal fistula surgically repaired by Doctor 1. The following year, Doctor 2 performed follow-up surgery. Five years later, the patient returned to Doctor 2, who determined that a thick band of scar tissue had replaced the external part of the sphincter muscle, causing permanent fecal incontinence. She sued Doctor 1 and the hospital.

PATIENT’S CLAIM Antibiotics should have been prescribed and complete bowel preparation performed before the initial surgery. During surgery, the fistulous tract and scar tissue were not completely resected and the layers were improperly closed. Stool softeners should have been prescribed after surgery.

DOCTOR’S DEFENSE Despite no documentation, Doctor 1 believed stool softeners were probably prescribed. No bowel preparation was needed, the fistulous tract and scar tissue were resected, and closure was done properly. Also, another fistula with rectal abscess formed after Doctor 2’s surgery. This required multiple incisions and drainages and caused the sphincter defect.

VERDICT Defense verdict.

Pregnant woman had cancer in swollen foot

A 24-year-old pregnant woman obtained prenatal care from various residents and supervising physicians at a prenatal clinic. She complained of pain and numbness in her left foot. By the time of delivery, the foot was swollen and she could not walk on it. No imaging studies were done before she was discharged from the hospital. Six months later, a biopsy indicated malignant rhabdomyosarcoma. The patient underwent chemotherapy and radiation, but died 2 years later.

PATIENT’S CLAIM The tumor was not diagnosed in a timely manner. Her complaints should have been investigated during her pregnancy or before discharge from the hospital following delivery.

DOCTOR’S DEFENSE Not reported.

VERDICT A jury awarded $7.7 million. Fault was distributed as follows: the group, 60%; physician 1, 25%; physician 2, 15%.

Urinary leakage, fistula blamed on cystotomy

A 40-year-old woman was diagnosed with uterine prolapse and underwent a vaginal hysterectomy. Dense adhesions found during surgery made the separation and removal of the cervix and uterus from the bladder difficult. An intentional cystotomy was performed and then repaired, but the patient developed a vesicovaginal fistula.

PATIENT’S CLAIM The hysterectomy was not performed properly because the cystotomy was contraindicated and resulted in a vesicovaginal fistula, and the incision for the cystotomy was not properly repaired. The patient also claimed that she suffered occasional urinary leakage during laughing, coughing, straining, and sexual activity.

DOCTOR’S DEFENSE The hysterectomy was performed properly, and the cystotomy helped prevent more serious damage to the urinary tract and bladder. The patient’s urinary leakage was due to overactive bladder, smoking, and age.

VERDICT Defense verdict.

Did the emergency excuse the retained sponge?

A 40-year-old woman underwent an emergency hysterectomy and oophorectomy, during which a surgical sponge was left in her pelvic cavity. The retained sponge, which was not diagnosed on a postoperative x-ray, was discovered when the patient was later admitted to the hospital for chest pain. The sponge and a large mass of purulent material were removed from her pelvic cavity, as was her remaining ovary due to adhesions.

PATIENT’S CLAIM The ObGyn was negligent for leaving a sponge in her pelvic cavity and then for not diagnosing it on postoperative x-ray. The defendant should have consulted the radiologist because the x-ray indicated a vague area of radiopacity. The patient also claimed early-onset menopause due to removal of the ovary.

DOCTOR’S DEFENSE The emergency circumstances of the initial surgery accounted for the retained sponge, and the radiologist never verbally informed him of the questionable x-ray finding.

VERDICT A pretrial settlement was reached with the hospital and assistant surgeon for an undisclosed amount.

Claim: Crash C-section team was tardy

A 21-year-old woman presented to the hospital after experiencing rupture of membranes, and was started on oxytocin. The OB found that labor progress and fetal monitoring strips were normal.

Five hours later, nurses noted signs of prolonged deceleration and began to prepare for an emergency cesarean section.

The anesthesiologist and OB were unavailable at that time, and it took about 34 minutes for a team to be assembled to deliver the infant.

Within 2 minutes, the child was delivered, but his Apgars were 0 at 1, 5, and 10 minutes and 1 at 15 minutes, and he suffered severe brain damage. Cord blood was not analyzed for blood gases.

PATIENT’S CLAIM The defendants were negligent for not anticipating or recognizing developing problems, which were evident as much as 1 hour before the OB’s visit and included hyperstimulation of the uterus and slow progress of labor.

DOCTOR’S DEFENSE The OB would have come in and probably delivered the child if he had been called earlier.

There was no indication of hypoxia or cause for concern until very late in the process, and the brain damage to the child was the result of an unanticipatable event that occurred 30 minutes before delivery.

VERDICT A $3.5 million present-value settlement was reached during trial.

The cases in this column are selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.

Nurse says OB used misoprostol to avoid working on weekends

A woman’s 4th child, born at 36 weeks’ gestation with lungs not fully developed, was diagnosed with respiratory distress syndrome, apnea, and hypotension. Intubated for 4 or 5 days and in neonatal intensive care for 11 days, the baby required an apnea machine whenever he slept for his first 3 months.

PATIENT’S CLAIM The ObGyn used misoprostol to induce labor prematurely without the mother’s knowledge. A nurse who had worked for the defendant testified that the defendant would use misoprostol on a patient’s cervix the Tuesday before she reached full term and thus avoided working on weekends, and that he had done this for more than a year without telling patients.

DOCTOR’S DEFENSE The doctor denied inducing labor or giving patients misoprostol and claimed the testimony of the former employee nurse was inconsistent. Also, the plaintiff had given birth previously to another baby at 36 weeks, and the younger child’s problems were the result of his prematurity.

VERDICT Defense verdict.

“Doctor is responsible for my divorce”

A 32-year-old woman, whose right fallopian tube had been removed after an ectopic pregnancy, presented to her doctor with abnormal bleeding. She said she had a negative pregnancy test 2 weeks earlier; her doctor diagnosed dysfunctional uterine bleeding. She returned with abdominal pain 2 weeks later. A 2nd ectopic pregnancy was found, plus a ruptured left fallopian tube, which was removed. She was unable to conceive naturally after this.

PATIENT’S CLAIM The doctor should have performed a pregnancy test and was negligent for not diagnosing and treating the 2nd ectopic pregnancy in a timely manner. Her inability to conceive led to divorce.

DOCTOR’S DEFENSE A urine pregnancy test was indeed performed when she presented initially and was found to be negative.

VERDICT Defense verdict.

Was surgeon’s peripheral neuropathy to blame for injury?

Following a vaginal hysterectomy resulting in injury to the urethra, a 35-year-old woman required 2 additional surgeries. She has residual urination frequency that is painful due to scarring.

PATIENT’S CLAIM The gynecologist’s peripheral neuropathy affected control of her hands, and she was negligent in injuring the urethra.

DOCTOR’S DEFENSE There was neither negligence nor a problem with her hand control. Also, the patient did not suffer any significant injury.

VERDICT $200,000 verdict against the doctor; settlement with the hospital for an undisclosed amount.

Did video prove excessive traction?

A pregnant woman, who had limited prenatal care, presented for postterm induction of labor. Shoulder dystocia was encountered. Within 30 seconds the baby was delivered, but the left arm was paralyzed.

PATIENT’S CLAIM Excessive traction was used during delivery. A video of the birth showed the doctor stretching the baby’s head 4 to 5 inches from the shoulders during the delivery.

DOCTOR’S DEFENSE Gentle traction was used to move the baby’s head in the proper direction.

VERDICT Defense verdict. Motion for new trial is pending.

Mother not given chance to change her mind

A woman delivered a baby with a clubfoot by cesarean section, at which time a tubal ligation was also done. Later the baby was found to have a severe congenital heart defect, and eventually died.

PATIENT’S CLAIM The mother claimed lack of informed consent regarding the tubal ligation because the doctor should have known the baby could have other problems. She would not have consented to the ligation if she had known of the baby’s chances of survival.

DOCTOR’S DEFENSE Not reported.

VERDICT Defense verdict. Motion for new trial is pending.

No bowel prep, then permanent incontinence

A 31-year-old woman had an anovaginal fistula surgically repaired by Doctor 1. The following year, Doctor 2 performed follow-up surgery. Five years later, the patient returned to Doctor 2, who determined that a thick band of scar tissue had replaced the external part of the sphincter muscle, causing permanent fecal incontinence. She sued Doctor 1 and the hospital.

PATIENT’S CLAIM Antibiotics should have been prescribed and complete bowel preparation performed before the initial surgery. During surgery, the fistulous tract and scar tissue were not completely resected and the layers were improperly closed. Stool softeners should have been prescribed after surgery.

DOCTOR’S DEFENSE Despite no documentation, Doctor 1 believed stool softeners were probably prescribed. No bowel preparation was needed, the fistulous tract and scar tissue were resected, and closure was done properly. Also, another fistula with rectal abscess formed after Doctor 2’s surgery. This required multiple incisions and drainages and caused the sphincter defect.

VERDICT Defense verdict.

Pregnant woman had cancer in swollen foot

A 24-year-old pregnant woman obtained prenatal care from various residents and supervising physicians at a prenatal clinic. She complained of pain and numbness in her left foot. By the time of delivery, the foot was swollen and she could not walk on it. No imaging studies were done before she was discharged from the hospital. Six months later, a biopsy indicated malignant rhabdomyosarcoma. The patient underwent chemotherapy and radiation, but died 2 years later.

PATIENT’S CLAIM The tumor was not diagnosed in a timely manner. Her complaints should have been investigated during her pregnancy or before discharge from the hospital following delivery.

DOCTOR’S DEFENSE Not reported.

VERDICT A jury awarded $7.7 million. Fault was distributed as follows: the group, 60%; physician 1, 25%; physician 2, 15%.

Urinary leakage, fistula blamed on cystotomy

A 40-year-old woman was diagnosed with uterine prolapse and underwent a vaginal hysterectomy. Dense adhesions found during surgery made the separation and removal of the cervix and uterus from the bladder difficult. An intentional cystotomy was performed and then repaired, but the patient developed a vesicovaginal fistula.

PATIENT’S CLAIM The hysterectomy was not performed properly because the cystotomy was contraindicated and resulted in a vesicovaginal fistula, and the incision for the cystotomy was not properly repaired. The patient also claimed that she suffered occasional urinary leakage during laughing, coughing, straining, and sexual activity.

DOCTOR’S DEFENSE The hysterectomy was performed properly, and the cystotomy helped prevent more serious damage to the urinary tract and bladder. The patient’s urinary leakage was due to overactive bladder, smoking, and age.

VERDICT Defense verdict.

Did the emergency excuse the retained sponge?

A 40-year-old woman underwent an emergency hysterectomy and oophorectomy, during which a surgical sponge was left in her pelvic cavity. The retained sponge, which was not diagnosed on a postoperative x-ray, was discovered when the patient was later admitted to the hospital for chest pain. The sponge and a large mass of purulent material were removed from her pelvic cavity, as was her remaining ovary due to adhesions.

PATIENT’S CLAIM The ObGyn was negligent for leaving a sponge in her pelvic cavity and then for not diagnosing it on postoperative x-ray. The defendant should have consulted the radiologist because the x-ray indicated a vague area of radiopacity. The patient also claimed early-onset menopause due to removal of the ovary.

DOCTOR’S DEFENSE The emergency circumstances of the initial surgery accounted for the retained sponge, and the radiologist never verbally informed him of the questionable x-ray finding.

VERDICT A pretrial settlement was reached with the hospital and assistant surgeon for an undisclosed amount.

Claim: Crash C-section team was tardy

A 21-year-old woman presented to the hospital after experiencing rupture of membranes, and was started on oxytocin. The OB found that labor progress and fetal monitoring strips were normal.

Five hours later, nurses noted signs of prolonged deceleration and began to prepare for an emergency cesarean section.

The anesthesiologist and OB were unavailable at that time, and it took about 34 minutes for a team to be assembled to deliver the infant.

Within 2 minutes, the child was delivered, but his Apgars were 0 at 1, 5, and 10 minutes and 1 at 15 minutes, and he suffered severe brain damage. Cord blood was not analyzed for blood gases.

PATIENT’S CLAIM The defendants were negligent for not anticipating or recognizing developing problems, which were evident as much as 1 hour before the OB’s visit and included hyperstimulation of the uterus and slow progress of labor.

DOCTOR’S DEFENSE The OB would have come in and probably delivered the child if he had been called earlier.

There was no indication of hypoxia or cause for concern until very late in the process, and the brain damage to the child was the result of an unanticipatable event that occurred 30 minutes before delivery.

VERDICT A $3.5 million present-value settlement was reached during trial.

The cases in this column are selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.

A generation ago, the sale of a medical practice was much like the sale of any other business: A retiring physician would sell his or her practice to a young doctor and the practice would continue on as before. Occasionally that still happens, but changes in the business of medicine—most significantly the growth of managed care—have made a big impact on the way medical practices are bought and sold.

For one thing, there are far fewer solo practitioners these days, and polls indicate most young physicians will continue that trend. The buyer of a medical practice today is more likely to be an institution—such as a hospital, an HMO, or a large practice group—than an individual.

For another, because the rules governing such sales have become so numbingly complex, the services of expert (and expensive) third parties are essential.

While these issues may complicate matters, there is still a market for medical practices. However, you must do everything possible to ensure you identify the best possible buyer and structure the best deal.

The first hurdle is the accurate valuation of your practice, which was covered last month. (If you missed that column, go to www.skinandallergynews.com

Keep in mind that the valuation will not necessarily equal the purchase price; other factors may need to be considered before a final price can be agreed upon. Keep in mind, too, that there may be legal constraints on the purchase price. For example, if the buyer is a nonprofit corporation such as a hospital or HMO, by law it cannot pay in excess of fair market value for the practice.

Once a value has been agreed upon, you must consider how the transaction will be structured. The most popular structures include purchase of assets, purchase of corporate stock, or merger.

Buyers, especially institutional buyers, prefer to purchase assets because it allows them to pick and choose only those items of value to them. This can leave the seller with several “odd lots” to dispose of. But depending on the circumstances, an asset sale may still be to both parties' advantage.

Sellers typically prefer to sell stock because it allows them to sell their entire practice, which is often worth more than the sum of its parts, and often provides tax advantages as described below.

The third option, merger, continues to grow in popularity. Usually this takes the form of a sale (actually a stock trade) of the medical practice to a publicly traded HMO, which issues its own stock in payment. Because these types of purchasers are exempt from the restrictions that apply to not-for-profit organizations, they can pay higher prices, and pay for goodwill, and the stock issued in payment offers the seller an opportunity to participate in future profits and appreciation of value. Stock ownership is not without risk, of course.

Tax issues must always be considered. Most private practices are corporations, and the sale of corporate stock will result in a long-term capital gain that will be taxed by law at 28%. As the saying goes, it's not what you earn, it's what you keep; so it may benefit the seller to accept a slightly lower price if the sale can be structured to provide significantly lower tax treatment. However, any gain that does not qualify as a long-term capital gain will be taxed as regular income—around 40%, plus a Social Security tax of about 15%.

Payment in installments is a popular way to defer taxes, since they are incurred on each installment as it is paid. However, such payments may also be mistaken by the IRS for payments for referrals, which is illegal. And there is always the problem of making certain all the payments eventually are made.

The seller may wish to continue working at the practice as an employee, and this is often to the buyer's advantage as well. Transitioning to new ownership in stages often maximizes the value of the business by improving patient retention, and allows patients to become accustomed to the transition. However, care must be taken, with the aid of good legal advice, to structure such an arrangement in a way that minimizes concerns of fraud and abuse. Congress has created a “safe harbor” to allow continuing employment, but its scope is narrow and does not cover many common arrangements. To qualify, the sale of the practice, including any installment payments, must be completed within a year after an agreement is reached, and the seller cannot be in a position to make referrals to the buyer after a year.

A generation ago, the sale of a medical practice was much like the sale of any other business: A retiring physician would sell his or her practice to a young doctor and the practice would continue on as before. Occasionally that still happens, but changes in the business of medicine—most significantly the growth of managed care—have made a big impact on the way medical practices are bought and sold.

For one thing, there are far fewer solo practitioners these days, and polls indicate most young physicians will continue that trend. The buyer of a medical practice today is more likely to be an institution—such as a hospital, an HMO, or a large practice group—than an individual.

For another, because the rules governing such sales have become so numbingly complex, the services of expert (and expensive) third parties are essential.

While these issues may complicate matters, there is still a market for medical practices. However, you must do everything possible to ensure you identify the best possible buyer and structure the best deal.

The first hurdle is the accurate valuation of your practice, which was covered last month. (If you missed that column, go to www.skinandallergynews.com

Keep in mind that the valuation will not necessarily equal the purchase price; other factors may need to be considered before a final price can be agreed upon. Keep in mind, too, that there may be legal constraints on the purchase price. For example, if the buyer is a nonprofit corporation such as a hospital or HMO, by law it cannot pay in excess of fair market value for the practice.

Once a value has been agreed upon, you must consider how the transaction will be structured. The most popular structures include purchase of assets, purchase of corporate stock, or merger.

Buyers, especially institutional buyers, prefer to purchase assets because it allows them to pick and choose only those items of value to them. This can leave the seller with several “odd lots” to dispose of. But depending on the circumstances, an asset sale may still be to both parties' advantage.

Sellers typically prefer to sell stock because it allows them to sell their entire practice, which is often worth more than the sum of its parts, and often provides tax advantages as described below.

The third option, merger, continues to grow in popularity. Usually this takes the form of a sale (actually a stock trade) of the medical practice to a publicly traded HMO, which issues its own stock in payment. Because these types of purchasers are exempt from the restrictions that apply to not-for-profit organizations, they can pay higher prices, and pay for goodwill, and the stock issued in payment offers the seller an opportunity to participate in future profits and appreciation of value. Stock ownership is not without risk, of course.

Tax issues must always be considered. Most private practices are corporations, and the sale of corporate stock will result in a long-term capital gain that will be taxed by law at 28%. As the saying goes, it's not what you earn, it's what you keep; so it may benefit the seller to accept a slightly lower price if the sale can be structured to provide significantly lower tax treatment. However, any gain that does not qualify as a long-term capital gain will be taxed as regular income—around 40%, plus a Social Security tax of about 15%.

Payment in installments is a popular way to defer taxes, since they are incurred on each installment as it is paid. However, such payments may also be mistaken by the IRS for payments for referrals, which is illegal. And there is always the problem of making certain all the payments eventually are made.

The seller may wish to continue working at the practice as an employee, and this is often to the buyer's advantage as well. Transitioning to new ownership in stages often maximizes the value of the business by improving patient retention, and allows patients to become accustomed to the transition. However, care must be taken, with the aid of good legal advice, to structure such an arrangement in a way that minimizes concerns of fraud and abuse. Congress has created a “safe harbor” to allow continuing employment, but its scope is narrow and does not cover many common arrangements. To qualify, the sale of the practice, including any installment payments, must be completed within a year after an agreement is reached, and the seller cannot be in a position to make referrals to the buyer after a year.

A generation ago, the sale of a medical practice was much like the sale of any other business: A retiring physician would sell his or her practice to a young doctor and the practice would continue on as before. Occasionally that still happens, but changes in the business of medicine—most significantly the growth of managed care—have made a big impact on the way medical practices are bought and sold.

For one thing, there are far fewer solo practitioners these days, and polls indicate most young physicians will continue that trend. The buyer of a medical practice today is more likely to be an institution—such as a hospital, an HMO, or a large practice group—than an individual.

For another, because the rules governing such sales have become so numbingly complex, the services of expert (and expensive) third parties are essential.

While these issues may complicate matters, there is still a market for medical practices. However, you must do everything possible to ensure you identify the best possible buyer and structure the best deal.

The first hurdle is the accurate valuation of your practice, which was covered last month. (If you missed that column, go to www.skinandallergynews.com

Keep in mind that the valuation will not necessarily equal the purchase price; other factors may need to be considered before a final price can be agreed upon. Keep in mind, too, that there may be legal constraints on the purchase price. For example, if the buyer is a nonprofit corporation such as a hospital or HMO, by law it cannot pay in excess of fair market value for the practice.

Once a value has been agreed upon, you must consider how the transaction will be structured. The most popular structures include purchase of assets, purchase of corporate stock, or merger.

Buyers, especially institutional buyers, prefer to purchase assets because it allows them to pick and choose only those items of value to them. This can leave the seller with several “odd lots” to dispose of. But depending on the circumstances, an asset sale may still be to both parties' advantage.

Sellers typically prefer to sell stock because it allows them to sell their entire practice, which is often worth more than the sum of its parts, and often provides tax advantages as described below.

The third option, merger, continues to grow in popularity. Usually this takes the form of a sale (actually a stock trade) of the medical practice to a publicly traded HMO, which issues its own stock in payment. Because these types of purchasers are exempt from the restrictions that apply to not-for-profit organizations, they can pay higher prices, and pay for goodwill, and the stock issued in payment offers the seller an opportunity to participate in future profits and appreciation of value. Stock ownership is not without risk, of course.

Tax issues must always be considered. Most private practices are corporations, and the sale of corporate stock will result in a long-term capital gain that will be taxed by law at 28%. As the saying goes, it's not what you earn, it's what you keep; so it may benefit the seller to accept a slightly lower price if the sale can be structured to provide significantly lower tax treatment. However, any gain that does not qualify as a long-term capital gain will be taxed as regular income—around 40%, plus a Social Security tax of about 15%.

Payment in installments is a popular way to defer taxes, since they are incurred on each installment as it is paid. However, such payments may also be mistaken by the IRS for payments for referrals, which is illegal. And there is always the problem of making certain all the payments eventually are made.

The seller may wish to continue working at the practice as an employee, and this is often to the buyer's advantage as well. Transitioning to new ownership in stages often maximizes the value of the business by improving patient retention, and allows patients to become accustomed to the transition. However, care must be taken, with the aid of good legal advice, to structure such an arrangement in a way that minimizes concerns of fraud and abuse. Congress has created a “safe harbor” to allow continuing employment, but its scope is narrow and does not cover many common arrangements. To qualify, the sale of the practice, including any installment payments, must be completed within a year after an agreement is reached, and the seller cannot be in a position to make referrals to the buyer after a year.

Despite signs of cancer, estrogen is given

After 2 years of mammograms showing signs of breast cancer and the continued administration of estrogen medications, a 55-year-old woman underwent a modified radical left mastectomy and left axillary dissection, followed by extensive radiation therapy and chemotherapy. She suffered extensive radiation burns to her chest wall, chronic arm swelling due to lymphedema, and nerve damage to the hands due to the chemotherapy. She underwent a total of 9 surgeries.

PATIENT’S CLAIM The gynecologist was negligent for not referring her to a surgeon after 2 years of mammograms indicated cancer and for continuing to administer estrogen medications. The delayed diagnosis allowed the cancer to grow to nearly 9 cm and spread to the lymph nodes, thus requiring extensive surgery and treatment, rather than a simple lumpectomy and breast radiation.

DOCTOR’S DEFENSE Not reported.

VERDICT A jury returned a verdict of $5.65 million for the plaintiff and $300,000 for the husband for lost consortium.

Postcoital bleeding fails to alert Gyn to cancer

A 35-year-old woman suffered postcoital bleeding and was diagnosed with cervicitis by her gynecologist. After 10 months with no improvement despite 9 more examinations and antibiotic treatment, a colposcopy performed by a second gynecologist revealed cervical adenocarcinoma. A hysterectomy was performed.

PATIENT’S CLAIM The first gynecologist should have performed a colposcopy and biopsies to diagnose the cancer and start treatment, thus avoiding the hysterectomy and increasing her life expectancy.

DOCTOR’S DEFENSE Cervical cancer is seldom diagnosed at an early stage, and this cancer was located where early detection by colposcopy was impossible. In this case, a hysterectomy would have been necessary anyway.

VERDICT Defense verdict.

Doctor sutures bladder, calls dye spill a “typo”

After having suffered severe pelvic pain and bleeding for years, a 25-year-old woman underwent a total hysterectomy. Following surgery, she began to have bladder problems. When it was discovered that her bladder had been sutured three times during the surgery, she underwent repair surgery, but she remained incontinent.

PATIENT’S CLAIM According to the surgical record, blue dye was observed coming from her bladder during surgery, which should have alerted the doctor to investigate and repair the injury.

DOCTOR’S DEFENSE The physician admitted suturing the bladder, a known complication, but claimed the injury was not immediately apparent. Also, no dye spilled from the bladder - that was just a typographical error.

VERDICT Defense verdict.

Small abdomen worries mother, not doctor

A 24-year-old pregnant woman had monthly visits with her ObGyn from May to November. In October, she indicated that 2 pregnant friends had larger abdomens than she did at similar stages of pregnancy, but she was told everything was fine. In November, she requested an ultrasound on 3 occasions, but was told it was not necessary. In late November, she reported to the clinic complaining of cramps. Fetal demise was diagnosed, she was admitted to the hospital, where delivery was induced, and she went home the next day.

PATIENT’S CLAIM The fetus would not have died if the ObGyn had performed the appropriate tests when she was first concerned about the small size of her abdomen.

DOCTOR’S CLAIM Intrauterine growth retardation is rare and difficult to diagnose, and it has a high morbidity rate. Also, the mother was instructed to report diminished fetal movement, but she had failed to do so.

VERDICT After a trial resulted in a hung jury, a confidential settlement was reached.

Placental abruption or burst fetal blood vessel?

When a pregnant woman at term called her ObGyn after waking in a pool of blood, he questioned her and then sent her to the hospital. Physical assessment, fetal monitoring, and ultrasound were conducted. A cesarean section was performed when vaginal exam revealed that the fetus was remote from a vaginal delivery. After birth the newborn was unstable. She was transferred to another hospital, where she died soon thereafter.

PATIENT’S CLAIM The mother believed she had a placental abruption and claimed the baby would have survived had the delivery been done even 20 minutes earlier.

DOCTOR’S DEFENSE According to information the mother gave on the phone, bleeding was not due to placental abruption. She was no longer bleeding when she arrived at the hospital and had no abdominal pain. A ruptured fetal blood vessel caused the severe blood loss, and the baby would have died even if delivered earlier.

VERDICT A $500,00 verdict was returned.

Referring Gyn: “not responsible” for sponge

A 36-year-old woman’s gynecologist, Doctor 1, referred her to an ObGyn, Doctor 2, to perform a reversal of a tubal ligation. During the procedure, a lap sponge rolled in plastic was left in the patient despite a correct sponge count reported by the nurses. During her hospital stay and 4 office visits with Doctor 2, she reported pain, but a vaginal ultrasound was negative. One year later, she complained of excruciating pain to Doctor 1, who felt a mobile mass. Abdominal ultrasound showed nothing. When a CT tech told her to see her doctor after a CT scan, she was alarmed and immediately had an x-ray done, which indicated a retained foreign body. The patient sought another opinion when Doctor 1 asked her to sign a form for exploratory surgery before he had reviewed the CT results himself. Doctor 3 diagnosed the problem immediately and removed the sponge. She has had few physical problems since then.

The patient sued Doctors 1 and 2, the hospital, and the nurses. The hospital filed a 3rd party action against Doctor 2, claiming he had used a nonradiopaque, noncounted sponge.

PATIENT’S CLAIM The patient claimed the doctor was negligent in leaving the sponge in her and failing to diagnose the problem following surgery.

DOCTOR’S DEFENSE Doctor 1 could not have told the patient about the retained sponge before he had seen the CT films, especially as the records showed a correct sponge count. When he was certain it was a sponge, he called the patient, but she never returned his calls. Also, as the assistant surgeon, he was not responsible for the sponge count.

VERDICT The plaintiff reached a confidential settlement with Doctor 2 and the hospital. The hospital settled with the plaintiff and dismissed its claim against Doctor 2. In the trial against Doctor 1, a defense verdict was returned.

Anesthesiologist, nurses say “not me,” blame OB

An infant later found to be mentally retarded was delivered by cesarean section following fetal distress.

PATIENT’S CLAIM The parents claim the obstetrician, anesthesiologist, and 2 hospital nurses failed to respond quickly to signs of fetal distress, and a 1-hour delay in performing a cesarean section caused the child’s mental retardation. The anesthesiologist should have been prepared for a cesarean section, and the nurses did not report the obstetrician’s delay to superiors.

DOCTOR’S DEFENSE Anesthesiologist and nurses blamed the obstetrician.

VERDICT Prior to trial, the obstetrician settled for $1 million. A $3.69 million verdict was returned against the others, but that was reduced to $45,000 because the jury found the obstetrician to be 90% at fault.

When are drugs, monitoring enough?

A woman pregnant with twins at 29 weeks’ gestation presented to a hospital with vaginal bleeding, but was discharged when maternal-fetal well-being was established. One day after a brown discharge, she reported to the hospital with bleeding and irregular contractions. She was monitored and given tocolytic drugs, then sent home where uterine activity was monitored. She suffered acute bleeding 2 days later and returned to the hospital, where an emergency cesarean section was performed. One twin was born severely depressed due to 75% placental abruption and died 2 days later. The other twin experienced 35% placental abruption, but had no further problems.

PATIENT’S CLAIM If ultrasound had been performed when the mother complained of bleeding, it would have shown the fluid depletion. The mother would have been hospitalized and monitored, allowing the doctors to know of the possibility of abruption.

DOCTOR’S DEFENSE The mother’s symptoms did not require hospitalization. She had a premature rupture of membranes for the one twin, leading to acute severe placental abruption.

VERDICT Defense verdict.

Did she or didn’t she consent to c-section?

A baby weighing over 11 pounds was delivered vaginally in 2001. The child was born with Erb’s palsy and brain damage and has undergone 2 surgeries for the Erb’s palsy. He suffers from language and speech deficits, and requires occupational and speech therapy.

PATIENT’S CLAIM The injury would not have occurred if the doctor, who knew the baby was large, had performed a cesarean section, to which the mother had consented.

DOCTOR’S DEFENSE The plaintiff refused a cesarean section, and a vaginal delivery was proper. Also, the child has no limitation on the range of motion of the left shoulder.

VERDICT A $4 million settlement was reached.

Defense: “Distorted anatomy’s the problem”

A 55-year-old woman had abdominal surgery, during which a ureter was apparently severed. She underwent a second operation to repair the damage.

PATIENT’S CLAIM The doctor was negligent in severing the ureter and in not identifying and repairing the injury in a timely manner.

DOCTOR’S DEFENSE The doctor was not convinced the injury had occurred during surgery, but if it had, then the patient’s distorted anatomy was to blame. Also, when urine leakage was identified, the patient was immediately referred for additional treatment.

VERDICT Defense verdict.

The cases in this column are selected by the editors of Obg Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.

Despite signs of cancer, estrogen is given

After 2 years of mammograms showing signs of breast cancer and the continued administration of estrogen medications, a 55-year-old woman underwent a modified radical left mastectomy and left axillary dissection, followed by extensive radiation therapy and chemotherapy. She suffered extensive radiation burns to her chest wall, chronic arm swelling due to lymphedema, and nerve damage to the hands due to the chemotherapy. She underwent a total of 9 surgeries.

PATIENT’S CLAIM The gynecologist was negligent for not referring her to a surgeon after 2 years of mammograms indicated cancer and for continuing to administer estrogen medications. The delayed diagnosis allowed the cancer to grow to nearly 9 cm and spread to the lymph nodes, thus requiring extensive surgery and treatment, rather than a simple lumpectomy and breast radiation.

DOCTOR’S DEFENSE Not reported.

VERDICT A jury returned a verdict of $5.65 million for the plaintiff and $300,000 for the husband for lost consortium.

Postcoital bleeding fails to alert Gyn to cancer

A 35-year-old woman suffered postcoital bleeding and was diagnosed with cervicitis by her gynecologist. After 10 months with no improvement despite 9 more examinations and antibiotic treatment, a colposcopy performed by a second gynecologist revealed cervical adenocarcinoma. A hysterectomy was performed.

PATIENT’S CLAIM The first gynecologist should have performed a colposcopy and biopsies to diagnose the cancer and start treatment, thus avoiding the hysterectomy and increasing her life expectancy.

DOCTOR’S DEFENSE Cervical cancer is seldom diagnosed at an early stage, and this cancer was located where early detection by colposcopy was impossible. In this case, a hysterectomy would have been necessary anyway.

VERDICT Defense verdict.

Doctor sutures bladder, calls dye spill a “typo”

After having suffered severe pelvic pain and bleeding for years, a 25-year-old woman underwent a total hysterectomy. Following surgery, she began to have bladder problems. When it was discovered that her bladder had been sutured three times during the surgery, she underwent repair surgery, but she remained incontinent.

PATIENT’S CLAIM According to the surgical record, blue dye was observed coming from her bladder during surgery, which should have alerted the doctor to investigate and repair the injury.

DOCTOR’S DEFENSE The physician admitted suturing the bladder, a known complication, but claimed the injury was not immediately apparent. Also, no dye spilled from the bladder - that was just a typographical error.

VERDICT Defense verdict.

Small abdomen worries mother, not doctor

A 24-year-old pregnant woman had monthly visits with her ObGyn from May to November. In October, she indicated that 2 pregnant friends had larger abdomens than she did at similar stages of pregnancy, but she was told everything was fine. In November, she requested an ultrasound on 3 occasions, but was told it was not necessary. In late November, she reported to the clinic complaining of cramps. Fetal demise was diagnosed, she was admitted to the hospital, where delivery was induced, and she went home the next day.

PATIENT’S CLAIM The fetus would not have died if the ObGyn had performed the appropriate tests when she was first concerned about the small size of her abdomen.

DOCTOR’S CLAIM Intrauterine growth retardation is rare and difficult to diagnose, and it has a high morbidity rate. Also, the mother was instructed to report diminished fetal movement, but she had failed to do so.

VERDICT After a trial resulted in a hung jury, a confidential settlement was reached.

Placental abruption or burst fetal blood vessel?

When a pregnant woman at term called her ObGyn after waking in a pool of blood, he questioned her and then sent her to the hospital. Physical assessment, fetal monitoring, and ultrasound were conducted. A cesarean section was performed when vaginal exam revealed that the fetus was remote from a vaginal delivery. After birth the newborn was unstable. She was transferred to another hospital, where she died soon thereafter.

PATIENT’S CLAIM The mother believed she had a placental abruption and claimed the baby would have survived had the delivery been done even 20 minutes earlier.

DOCTOR’S DEFENSE According to information the mother gave on the phone, bleeding was not due to placental abruption. She was no longer bleeding when she arrived at the hospital and had no abdominal pain. A ruptured fetal blood vessel caused the severe blood loss, and the baby would have died even if delivered earlier.

VERDICT A $500,00 verdict was returned.

Referring Gyn: “not responsible” for sponge

A 36-year-old woman’s gynecologist, Doctor 1, referred her to an ObGyn, Doctor 2, to perform a reversal of a tubal ligation. During the procedure, a lap sponge rolled in plastic was left in the patient despite a correct sponge count reported by the nurses. During her hospital stay and 4 office visits with Doctor 2, she reported pain, but a vaginal ultrasound was negative. One year later, she complained of excruciating pain to Doctor 1, who felt a mobile mass. Abdominal ultrasound showed nothing. When a CT tech told her to see her doctor after a CT scan, she was alarmed and immediately had an x-ray done, which indicated a retained foreign body. The patient sought another opinion when Doctor 1 asked her to sign a form for exploratory surgery before he had reviewed the CT results himself. Doctor 3 diagnosed the problem immediately and removed the sponge. She has had few physical problems since then.

The patient sued Doctors 1 and 2, the hospital, and the nurses. The hospital filed a 3rd party action against Doctor 2, claiming he had used a nonradiopaque, noncounted sponge.

PATIENT’S CLAIM The patient claimed the doctor was negligent in leaving the sponge in her and failing to diagnose the problem following surgery.

DOCTOR’S DEFENSE Doctor 1 could not have told the patient about the retained sponge before he had seen the CT films, especially as the records showed a correct sponge count. When he was certain it was a sponge, he called the patient, but she never returned his calls. Also, as the assistant surgeon, he was not responsible for the sponge count.

VERDICT The plaintiff reached a confidential settlement with Doctor 2 and the hospital. The hospital settled with the plaintiff and dismissed its claim against Doctor 2. In the trial against Doctor 1, a defense verdict was returned.

Anesthesiologist, nurses say “not me,” blame OB

An infant later found to be mentally retarded was delivered by cesarean section following fetal distress.

PATIENT’S CLAIM The parents claim the obstetrician, anesthesiologist, and 2 hospital nurses failed to respond quickly to signs of fetal distress, and a 1-hour delay in performing a cesarean section caused the child’s mental retardation. The anesthesiologist should have been prepared for a cesarean section, and the nurses did not report the obstetrician’s delay to superiors.

DOCTOR’S DEFENSE Anesthesiologist and nurses blamed the obstetrician.

VERDICT Prior to trial, the obstetrician settled for $1 million. A $3.69 million verdict was returned against the others, but that was reduced to $45,000 because the jury found the obstetrician to be 90% at fault.

When are drugs, monitoring enough?

A woman pregnant with twins at 29 weeks’ gestation presented to a hospital with vaginal bleeding, but was discharged when maternal-fetal well-being was established. One day after a brown discharge, she reported to the hospital with bleeding and irregular contractions. She was monitored and given tocolytic drugs, then sent home where uterine activity was monitored. She suffered acute bleeding 2 days later and returned to the hospital, where an emergency cesarean section was performed. One twin was born severely depressed due to 75% placental abruption and died 2 days later. The other twin experienced 35% placental abruption, but had no further problems.

PATIENT’S CLAIM If ultrasound had been performed when the mother complained of bleeding, it would have shown the fluid depletion. The mother would have been hospitalized and monitored, allowing the doctors to know of the possibility of abruption.

DOCTOR’S DEFENSE The mother’s symptoms did not require hospitalization. She had a premature rupture of membranes for the one twin, leading to acute severe placental abruption.

VERDICT Defense verdict.

Did she or didn’t she consent to c-section?

A baby weighing over 11 pounds was delivered vaginally in 2001. The child was born with Erb’s palsy and brain damage and has undergone 2 surgeries for the Erb’s palsy. He suffers from language and speech deficits, and requires occupational and speech therapy.

PATIENT’S CLAIM The injury would not have occurred if the doctor, who knew the baby was large, had performed a cesarean section, to which the mother had consented.

DOCTOR’S DEFENSE The plaintiff refused a cesarean section, and a vaginal delivery was proper. Also, the child has no limitation on the range of motion of the left shoulder.

VERDICT A $4 million settlement was reached.

Defense: “Distorted anatomy’s the problem”

A 55-year-old woman had abdominal surgery, during which a ureter was apparently severed. She underwent a second operation to repair the damage.

PATIENT’S CLAIM The doctor was negligent in severing the ureter and in not identifying and repairing the injury in a timely manner.

DOCTOR’S DEFENSE The doctor was not convinced the injury had occurred during surgery, but if it had, then the patient’s distorted anatomy was to blame. Also, when urine leakage was identified, the patient was immediately referred for additional treatment.

VERDICT Defense verdict.

The cases in this column are selected by the editors of Obg Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.

Despite signs of cancer, estrogen is given

After 2 years of mammograms showing signs of breast cancer and the continued administration of estrogen medications, a 55-year-old woman underwent a modified radical left mastectomy and left axillary dissection, followed by extensive radiation therapy and chemotherapy. She suffered extensive radiation burns to her chest wall, chronic arm swelling due to lymphedema, and nerve damage to the hands due to the chemotherapy. She underwent a total of 9 surgeries.

PATIENT’S CLAIM The gynecologist was negligent for not referring her to a surgeon after 2 years of mammograms indicated cancer and for continuing to administer estrogen medications. The delayed diagnosis allowed the cancer to grow to nearly 9 cm and spread to the lymph nodes, thus requiring extensive surgery and treatment, rather than a simple lumpectomy and breast radiation.

DOCTOR’S DEFENSE Not reported.

VERDICT A jury returned a verdict of $5.65 million for the plaintiff and $300,000 for the husband for lost consortium.

Postcoital bleeding fails to alert Gyn to cancer

A 35-year-old woman suffered postcoital bleeding and was diagnosed with cervicitis by her gynecologist. After 10 months with no improvement despite 9 more examinations and antibiotic treatment, a colposcopy performed by a second gynecologist revealed cervical adenocarcinoma. A hysterectomy was performed.

PATIENT’S CLAIM The first gynecologist should have performed a colposcopy and biopsies to diagnose the cancer and start treatment, thus avoiding the hysterectomy and increasing her life expectancy.

DOCTOR’S DEFENSE Cervical cancer is seldom diagnosed at an early stage, and this cancer was located where early detection by colposcopy was impossible. In this case, a hysterectomy would have been necessary anyway.

VERDICT Defense verdict.

Doctor sutures bladder, calls dye spill a “typo”

After having suffered severe pelvic pain and bleeding for years, a 25-year-old woman underwent a total hysterectomy. Following surgery, she began to have bladder problems. When it was discovered that her bladder had been sutured three times during the surgery, she underwent repair surgery, but she remained incontinent.

PATIENT’S CLAIM According to the surgical record, blue dye was observed coming from her bladder during surgery, which should have alerted the doctor to investigate and repair the injury.

DOCTOR’S DEFENSE The physician admitted suturing the bladder, a known complication, but claimed the injury was not immediately apparent. Also, no dye spilled from the bladder - that was just a typographical error.

VERDICT Defense verdict.

Small abdomen worries mother, not doctor

A 24-year-old pregnant woman had monthly visits with her ObGyn from May to November. In October, she indicated that 2 pregnant friends had larger abdomens than she did at similar stages of pregnancy, but she was told everything was fine. In November, she requested an ultrasound on 3 occasions, but was told it was not necessary. In late November, she reported to the clinic complaining of cramps. Fetal demise was diagnosed, she was admitted to the hospital, where delivery was induced, and she went home the next day.

PATIENT’S CLAIM The fetus would not have died if the ObGyn had performed the appropriate tests when she was first concerned about the small size of her abdomen.

DOCTOR’S CLAIM Intrauterine growth retardation is rare and difficult to diagnose, and it has a high morbidity rate. Also, the mother was instructed to report diminished fetal movement, but she had failed to do so.

VERDICT After a trial resulted in a hung jury, a confidential settlement was reached.

Placental abruption or burst fetal blood vessel?

When a pregnant woman at term called her ObGyn after waking in a pool of blood, he questioned her and then sent her to the hospital. Physical assessment, fetal monitoring, and ultrasound were conducted. A cesarean section was performed when vaginal exam revealed that the fetus was remote from a vaginal delivery. After birth the newborn was unstable. She was transferred to another hospital, where she died soon thereafter.

PATIENT’S CLAIM The mother believed she had a placental abruption and claimed the baby would have survived had the delivery been done even 20 minutes earlier.

DOCTOR’S DEFENSE According to information the mother gave on the phone, bleeding was not due to placental abruption. She was no longer bleeding when she arrived at the hospital and had no abdominal pain. A ruptured fetal blood vessel caused the severe blood loss, and the baby would have died even if delivered earlier.

VERDICT A $500,00 verdict was returned.

Referring Gyn: “not responsible” for sponge

A 36-year-old woman’s gynecologist, Doctor 1, referred her to an ObGyn, Doctor 2, to perform a reversal of a tubal ligation. During the procedure, a lap sponge rolled in plastic was left in the patient despite a correct sponge count reported by the nurses. During her hospital stay and 4 office visits with Doctor 2, she reported pain, but a vaginal ultrasound was negative. One year later, she complained of excruciating pain to Doctor 1, who felt a mobile mass. Abdominal ultrasound showed nothing. When a CT tech told her to see her doctor after a CT scan, she was alarmed and immediately had an x-ray done, which indicated a retained foreign body. The patient sought another opinion when Doctor 1 asked her to sign a form for exploratory surgery before he had reviewed the CT results himself. Doctor 3 diagnosed the problem immediately and removed the sponge. She has had few physical problems since then.

The patient sued Doctors 1 and 2, the hospital, and the nurses. The hospital filed a 3rd party action against Doctor 2, claiming he had used a nonradiopaque, noncounted sponge.

PATIENT’S CLAIM The patient claimed the doctor was negligent in leaving the sponge in her and failing to diagnose the problem following surgery.

DOCTOR’S DEFENSE Doctor 1 could not have told the patient about the retained sponge before he had seen the CT films, especially as the records showed a correct sponge count. When he was certain it was a sponge, he called the patient, but she never returned his calls. Also, as the assistant surgeon, he was not responsible for the sponge count.

VERDICT The plaintiff reached a confidential settlement with Doctor 2 and the hospital. The hospital settled with the plaintiff and dismissed its claim against Doctor 2. In the trial against Doctor 1, a defense verdict was returned.

Anesthesiologist, nurses say “not me,” blame OB

An infant later found to be mentally retarded was delivered by cesarean section following fetal distress.

PATIENT’S CLAIM The parents claim the obstetrician, anesthesiologist, and 2 hospital nurses failed to respond quickly to signs of fetal distress, and a 1-hour delay in performing a cesarean section caused the child’s mental retardation. The anesthesiologist should have been prepared for a cesarean section, and the nurses did not report the obstetrician’s delay to superiors.

DOCTOR’S DEFENSE Anesthesiologist and nurses blamed the obstetrician.

VERDICT Prior to trial, the obstetrician settled for $1 million. A $3.69 million verdict was returned against the others, but that was reduced to $45,000 because the jury found the obstetrician to be 90% at fault.

When are drugs, monitoring enough?

A woman pregnant with twins at 29 weeks’ gestation presented to a hospital with vaginal bleeding, but was discharged when maternal-fetal well-being was established. One day after a brown discharge, she reported to the hospital with bleeding and irregular contractions. She was monitored and given tocolytic drugs, then sent home where uterine activity was monitored. She suffered acute bleeding 2 days later and returned to the hospital, where an emergency cesarean section was performed. One twin was born severely depressed due to 75% placental abruption and died 2 days later. The other twin experienced 35% placental abruption, but had no further problems.

PATIENT’S CLAIM If ultrasound had been performed when the mother complained of bleeding, it would have shown the fluid depletion. The mother would have been hospitalized and monitored, allowing the doctors to know of the possibility of abruption.

DOCTOR’S DEFENSE The mother’s symptoms did not require hospitalization. She had a premature rupture of membranes for the one twin, leading to acute severe placental abruption.

VERDICT Defense verdict.

Did she or didn’t she consent to c-section?

A baby weighing over 11 pounds was delivered vaginally in 2001. The child was born with Erb’s palsy and brain damage and has undergone 2 surgeries for the Erb’s palsy. He suffers from language and speech deficits, and requires occupational and speech therapy.

PATIENT’S CLAIM The injury would not have occurred if the doctor, who knew the baby was large, had performed a cesarean section, to which the mother had consented.

DOCTOR’S DEFENSE The plaintiff refused a cesarean section, and a vaginal delivery was proper. Also, the child has no limitation on the range of motion of the left shoulder.

VERDICT A $4 million settlement was reached.

Defense: “Distorted anatomy’s the problem”

A 55-year-old woman had abdominal surgery, during which a ureter was apparently severed. She underwent a second operation to repair the damage.

PATIENT’S CLAIM The doctor was negligent in severing the ureter and in not identifying and repairing the injury in a timely manner.

DOCTOR’S DEFENSE The doctor was not convinced the injury had occurred during surgery, but if it had, then the patient’s distorted anatomy was to blame. Also, when urine leakage was identified, the patient was immediately referred for additional treatment.

VERDICT Defense verdict.

The cases in this column are selected by the editors of Obg Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska, Nashville, Tenn (www.verdictslaska.com). The available information about the cases is sometimes incomplete; pertinent details may be unavailable. Moreover, the cases may or may not have merit. Still, these cases represent types of clinical situations that may result in litigation and are meant to illustrate variation in verdicts and awards. Any illustrations are generic and do not represent a specific legal case.