On May 10, 2017, the Court of Appeals of Georgia (“Georgia Appellate Court”) affirmed a Georgia medical malpractice verdict in excess of $4 million for the death of a premature baby that the Georgia medical malpractice jury determined was due to the medical negligence of the defendant obstetrician (OB) in managing the mother’s pregnancy that led to the premature delivery at 22 weeks, 4 days of a 1 pound, 4 ounces baby who died in the hospital’s neonatal intensive care unit due to extreme prematurity.
The mother had a medical history that included a prior loop electrosurgical excision procedure (“LEEP”) that placed her at risk for an incompetent cervix. The accepted medical treatment for cervical incompetence was administering progesterone and/or performing a cerclage, a simple procedure in which the cervix is sewn closed during pregnancy. The prominent markers for cervical incompetence and preterm delivery are a cervix that is abnormally shortened in length and/or that exhibited funneling (i.e., dilation at the internal orifice of the uterus, with protrusion of the amniotic sac into the cervical canal).
The mother had a series of ultrasounds in her OB’s office that showed that her cervix was shortening. The mother was instructed to take it easy, not to lift any heavy objects, and to come back to the office in one week after her July 25, 2007 visit, for an additional ultrasound.
During the evening on July 31, 2007, the mother began to have thick, dark vaginal discharge. She and her husband drove to the hospital emergency room. On the way to the hospital, the mother spoke by telephone with the defendant OB, who was the obstetrician-gynecologist on-call that night. The mother told the defendant OB about her prior LEEP procedure, the shortening of her cervix shown on the July 25th ultrasound, her week of bed rest, and the thick brown discharge. The defendant OB told her that the thick brown discharge was probably old blood from the ultrasound, that the hospital would likely send her home, and that she could just come to her scheduled office visit at 9:00 a.m. the following morning.
Nonetheless, the mother and her husband continued on to the hospital where a nurse performed a vaginal examination that found that the mother’s cervix was not dilated and that she was not having contractions. The nurse telephoned the defendant OB and spoke with him about the results of the examination. The defendant OB chose not to come to the hospital to evaluate the mother or to order any diagnostic tests such as an ultrasound or urinalysis. The defendant OB recommended that the mother continue with bed rest and he gave the nurse orders over the phone to discharge the mother from the hospital, with instructions to follow-up the next morning at her previously scheduled 9:00 a.m. office visit. The nurse told the mother that the defendant OB had diagnosed her with a urinary tract infection and checked a box on her discharge instructions for her to drink more fluids for such an infection.
After her discharge from the hospital, the mother experienced worsening symptoms throughout the night, including pelvic pressure, urinary frequency and burning, and lower abdominal pain. Early in the morning of August 1, 2007, the mother telephoned the defendant OB and reported her worsening symptoms, but he reiterated that he believed that she had a urinary tract infection, that if she went to the emergency room again she would simply be sent back home, and that she should come to the office for her scheduled appointment at 9:00 a.m. that morning.
When the mother appeared for her 9:00 a.m. appointment, an ultrasound showed increased cervical shortening from the previous July 25 ultrasound, and she was referred to a maternal fetal medicine specialist. Before the mother could be seen by the specialist in his office, she was sent to the hospital labor and delivery department because of her increased complaints of pain.
At the hospital, the mother went into premature labor and her baby was delivered by emergency Caesarian section that night. Postoperative hospital records listed the mother’s diagnosis as incompetent cervix.
The mother and her husband filed their Georgia medical malpractice wrongful death lawsuit against the defendant OB and others, alleging that in light of the mother’s medical history, symptoms, and July 25, 2007 ultrasound, the defendant OB violated the standard of care on July 31 by failing to go to the hospital to examine the mother and diagnose her condition of cervical incompetence. The plaintiffs alleged that had the defendant OB come to the hospital and properly diagnosed the mother with cervical incompetence, the defendant OB then would have been required under the standard of care to have a cerclage performed or administer progesterone to prevent preterm delivery. The plaintiffs alleged that had the defendant OB taken these steps, the mother’s pregnancy would have been prolonged and the premature delivery and death of her child would have been avoided.
One of the plaintiffs’ medical experts testified during trial, ” … a stitch would have saved this pregnancy, as far as I’m concerned. You’d have prolonged those critical days. You just can’t keep watching this progression. You have to do therapy. You have to do — whether it be progesterone or a cerclage, you have to take action. We’re running out of time. It’s only getting worse with each ultrasound … “
The Georgia Appellate Court held, “Based on this combined expert testimony, construed in the light most favorable to the plaintiffs with all inferences drawn in their favor, we conclude that the plaintiffs presented evidence from which a jury could find that if [the defendant OB] had followed the standard of care on July 31, 2007 by having a cerclage performed on [the mother] or administering progesterone, there was a reasonable medical probability that it would have postponed the birth of [the mother’s] baby to a point in time when the baby would have survived.”
The Georgia Appellate Court also affirmed that the trial court did not abuse its discretion in concluding that evidence regarding the defendant OB’s August 2 Physician Note in which he stated that he physically examined the mother on that date (which the mother denied), and which the defendant OB later struck through and wrote “error pt [patient] not seen[,] out of room,” was admissible under Rule 608 (b) (1), which allows questioning about specific instances of conduct by a witness on cross-examination, if the conduct is probative of the witness’s character for truthfulness or untruthfulness.
Source Central Georgia Women’s Health Center, LLC v. Dean, A17A0243.
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