cases

Medical Malpractice - Case 2

We represented the 32-year old mother of four in this case for wrongful pregnancy. Our client, after the birth of her third child, underwent a tubal ligation to prevent further pregnancies. At the conclusion of the surgical procedure, tissue specimenswere submitted to the hospital's pathology laboratory for examination. This is standard procedure. The pathology report showed that the tissue specimen identified as the right fallopian tube was actually a vascular structure (oops!). The pathology report was received by the plaintiff's health care center ten days after the procedure, and was subsequently reviewed by plaintiff's obstetrician/gynecologist, who initialed the report and then filed it.

Plaintiff's doctor did not notify plaintiff of the report and the health care center, at which plaintiff also worked, failed to send her a copy of the report, although it had a written policy to send copies of all such reports to patients. As a result, the plaintiff did not learn that the sterilization procedure was unsuccessful, and she subsequently became pregnant with her fourth child, a boy, who was born in October 1993. The plaintiff filed suit against the surgeon (who had performed the unsuccessful sterilization procedure), her ob/gyn physician (who had received the pathology report but failed to notify her of its content), and the clinic (which had failed to send her a copy of the report). The surgeon defended on the basis that he did not see the report and thus did not know that the procedure had failed. The ob/gyn doctor defended on the basis that, although he knew of the report, he had no obligation to immediately communicate the information to plaintiff. And the clinic defended on the basis that its sole obligation was to give the report to the doctor, and that failure to mail a copy of the report to the plaintiff did not amount to negligence.

All three defendants alleged that the plaintiff should have gone back to see her doctor for a six-week post-partum check, as she admittedly had been instructed but failed to do, and that her failure to do so was the cause of her problems in the case. Our client sought damages for the costs of raising and educating the child, medical expenses associated with a subsequent sterilization procedure, and lost earnings. The case was tried to a jury. The plaintiff was awarded $105,000 damages. (The ob/gyn doctor was found to be 45% at fault, the clinic was found to be 35% at fault, plaintiff was found to be 20% at fault, and the surgeon was found to be zero percent at fault).