EXECUTIVE SUMMARY

A jury awarded a plaintiff $16 million in a malpractice case that involved the hospital’s marketing. The woman alleged she was misled by the advertising when choosing where to deliver her baby.

  • The hospital had advertised its women’s center as providing a more natural and relaxing experience than those at other hospitals.
  • The woman suffered an injury during what she says was violent, forceful treatment by the staff.
  • Senior hospital administrators had not reviewed the marketing materials before they were published and aired.

A recent $16 million verdict illustrates the risk faced by a hospital when its marketing promises too much and misleads patients.

The plaintiff was a woman who chose a hospital because it advertised more gentle and natural ways to give birth, but she ended up with a chronic injury after a nurse wrestled her into an unwanted position and used her hand to keep the baby’s head from emerging until a doctor arrived.

The verdict included $5 million for punitive damages related to what the jury said was “reckless fraud” in advertising and claims by a physician.

Caroline Malatesta originally planned to give birth at St. Vincent’s hospital in Birmingham, AL, where she had delivered three times previously with no complications. However, she was intrigued by the marketing campaign of Brookwood Medical Center, also in Birmingham, which was billing its new women’s center as an alternative choice for women who preferred a more natural birth process that emphasized giving the mother choice in how she delivered. The marketing campaign included features on local television news and talk shows.

The hospital promised supportive nurses and also advertised its unconventional options such as water births. Malatesta was particularly interested in Brookwood’s wireless fetal monitoring, which allows the mother to walk during labor. St. Vincent’s didn’t have wireless fetal monitoring, and Malatesta knew from experience that staying in bed made her labor more difficult. She interviewed a Brookwood physician who, Malatesta says, assured her that the nurses were especially supportive of a mother’s preferences. The physician said that she could choose her method of birth and deliver in any position and not necessarily on her back, according to Malatesta. He also said she could choose a water birth, but the lawsuit later revealed the hospital did not offer that option even though it had been promoted in the marketing campaign.

Malatesta had not been drawn to alternative childbirth options before, but she liked the overall idea of a hospital that gave the mother more freedom to choose how she wanted to deliver, she told the news site AL.com. “Brookwood’s advertising is what first piqued my interest in natural birth,” Malatesta said. “It added a layer of legitimacy. Natural birth wasn’t just a trend; these were real medical decisions.” (The article can be accessed by readers online at http://bit.ly/2c8LUrz.)

Not the Expected Care

Malatesta’s experience turned out to be far from gentle, and her choices were not respected, according to information revealed in the trial. Even worse, she was left with an injury that she says has changed her life. A jury found that the injury was the result of Malatesta being forcibly put on her back instead of her preferred position. (See stories included in this issue for details on Malatesta’s experience and for more information on how the injury might have been avoided.)

When she realized a few months later that she was not recovering properly, Malatesta sought help and was diagnosed with pudendal neuralgia, a painful, debilitating condition that Malatesta has been told most likely is permanent. She wondered if the condition was the result of her birth experience, and the patient advocate at Brookwood set up a meeting with Malatesta and the hospital’s vice president. The vice president later canceled the meeting and hung up on her when she called, Malatesta says.

She filed suit in 2014. In August 2016, Malatesta won the $16 million verdict not just for medical malpractice but also for fraud. The damages were $10 million for the pudendal neuralgia injury, $1 million to the husband for loss of consortium, and $5 million in punitive damages related to the fraudulent marketing.

Kate Darden, vice president of marketing and communications for Brookwood, issued a statement saying the hospital “strives for excellence in patient care and satisfaction, and we respectfully disagree with the jury’s verdict.”

Marketing for hospital services always must be considered in terms of specifically what is being offered, notes Kathleen Juniper, JD, an attorney with the law firm of Buchalter Nemer in Los Angeles. She focuses her practice on the advertising and marketing of health services and frequently reviews ad copy and marketing materials for her clients.

Testimony at trial indicated the marketing campaign never was approved by a senior executive such as the risk manager, chief medical officer, or legal counsel. Juniper says that such an oversight is inexcusable, and she suspects an overly aggressive marketing department may have intentionally bypassed that approval process.

“This was almost like a bait and switch. It’s a classic example of false advertising,” Juniper says. “The hospital puts out one offer, the offer induces the patient to come in, and when they get there, the offer is no good. They can’t get the product or service advertised.”

The hospital should have a formal, mandatory process for the approval of any type of advertising or other marketing, Juniper says. All claims should be reviewed by an attorney who takes the time to investigate any statements that make an offer to patients. Often that step will involve reviewing the material with the chief medical officer or another senior clinician.

Hospital risk managers should not assume that the marketing department has proper oversight, says Damian D. Capozzola, JD, an attorney in Los Angeles. “This practice of not vetting policies, products, protocols, and procedures with the would-be users, before implementation, while unfortunately not uncommon in a healthcare organization, is one of the most frustrating and extremely high-risk situations healthcare providers face every day,” he says.

New Avenue for Claims

The case could put a spotlight on hospital advertising and prompt more allegations of fraud, says Joshua H. Haffner, JD, an attorney with Haffner Law in Los Angeles. That spotlight could be particularly bright in states that have a cap on medical malpractice damages, where the plaintiff could sue additionally for fraud that would not be subject to the cap.

“For lawyers whose clients were brought to the doctor or hospital by advertising, this is a whole new avenue to pursue,” Haffner says. “This is really an important case, and hospitals will have to look at what they are doing with their advertising.”

Haffner notes that the nature of the services advertised — more natural childbirth and non-traditional options — did not drive the fraud allegations. The problem was that the hospital promised a service and did not deliver it, which could apply to the most conventional treatment.

“I see all these advertisements for cancer treatment centers, substance abuse programs, and they all need to be careful with what they’re saying,” Haffner says. “You have to be careful that your marketers are not puffing up the facts of what you actually can offer. That can get away from you really quick when the hospital is pushing the marketing department to be aggressive and get people in.”

The entire incident and judgment can be traced back to that lack of review, says Jamie Terrence, RN, president and founder of Healthcare Risk Services in Los Angeles. Terrence previously was the director of risk management at California Hospital Medical Center in Los Angeles.

“If the hospital, through the doctors and nurses as its agents, as well as the marketing department responsible for the fraudulent ads, had informed mothers of the actual requirements associated with natural births in the medical facility, the hospital would have been better positioned to defend the lawsuit and, perhaps, this tragedy could have been avoided entirely,” Terrence says.

SOURCES

  • Damian D. Capozzola, JD, Los Angeles. Telephone: (213) 533-4112. Email: ddc@ddclaw.com.
  • Joshua H. Haffner, JD, Haffner Law, Los Angeles. Telephone: (213) 514-5681. Email: jhh@haffnerlawyers.com.
  • Kathleen Juniper, JD, Buchalter Nemer, Los Angeles. Email: kjuniper@buchalter.com.
  • Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Los Angeles. Telephone: (310) 422-6995. Email: jterrence925@gmail.com.