News: On Nov. 30, 2009, a 31-year-old woman delivered a baby. During the delivery, the patient’s obstetrician noted that the baby’s umbilical cord was wrapped around its neck. He performed an episiotomy, which resulted in the safe delivery of the baby.

Subsequently, the patient allegedly told the obstetrician that her vagina emitted an odorous gas. In response, the physician told her that the condition was a natural byproduct of the procedure, and that no treatment would be required.

The patient became pregnant again in April 2010, and was evaluated by a midwife who consulted with the original obstetrician regarding the odorous gas. Again, the condition was not addressed. After the delivery, another physician diagnosed the patient with a rectovaginal fistula.

The patient sued the obstetrician, the hospital, and the midwife, alleging that the physician’s conduct amounted to malpractice and the midwife negligently failed to administer a test that would have revealed the fistula. The jury awarded the patient $50 million in damages, assigning 90% of the liability to the physician and hospital, with the remaining 10% assigned to the midwife.

Background: On Nov. 30, 2009, the plaintiff, a 31-year-old female physiatrist’s aide, delivered a baby. The delivery was performed by an obstetrician at a hospital. During delivery of the infant’s head, the obstetrician observed the baby’s umbilical cord wrapped around its neck, so he conducted an episiotomy, a cut of the skin that separates the anus and the vagina. The baby was subsequently delivered safely. That day, the patient allegedly reported an odorous gas coming from her vagina. The obstetrician opined that the condition was a natural byproduct of the delivery, and stated that it did not require treatment.

In April 2010, the patient again became pregnant and was evaluated by a midwife. The plaintiff reported to the midwife that her vagina emitted odorous discharge, but the condition again was not addressed. On Oct. 31, 2010, the obstetrician recommended a vaginal delivery following a pre-delivery examination. The child was delivered the following day.

A different physician later determined that the patient suffered from a rectovaginal fistula, which required 13 surgeries to repair. The patient asserted that the fistula arose out of the episiotomy performed by the obstetrician, that the episiotomy should not have been performed, and that the obstetrician should have diagnosed and treated the fistula. She contended that prompt diagnosis and treatment would have eliminated most or all of the fistula’s effects.

The patient filed suit against the obstetrician, the hospital, the midwife, and the midwife’s practice. Her complaint alleged that the obstetrician failed to properly manage the patient’s two deliveries, that the physician failed to diagnose and treat her fistula, that the physician’s failures amounted to malpractice, and that the midwife negligently failed to conduct a test that would have revealed the fistula.

The patient and the midwife negotiated a settlement before trial. The midwife’s insurer agreed to pay $925,000 and the patient dismissed the suit against the midwife’s practice, but the trial proceeded against the obstetrician and the hospital.

The patient’s expert witness opined that the obstetrician did not follow accepted standards of medical care. He further opined that no episiotomy should have been performed and that the resulting lacerations were aggravated by unnecessary thrusts during the final stages of the first infant’s delivery, and that the fistula was exacerbated by the delivery of her second child, which should not have been delivered vaginally. The expert also explained that the physician should have investigated the patient’s reported odorous discharge, and that the fistula should have been detected and repaired prior to the delivery of the second child.

The patient further claimed that her odorous discharge persisted throughout the time between the deliveries of her children. She alleged that she reported the condition multiple times to both the midwife and the obstetrician.

The defense alleged that the patient’s medical records indicated that her odorous discharge went unreported until after the delivery of her second child. The obstetrician claimed that he and the patient never discussed the condition; thus, he contended that he could not have provided earlier treatment of the fistula. The defense’s expert opined that the fistula was not related to treatment rendered by the obstetrician, and contended that the fistula resulted from a cloacal malformation: a confluence of the rectum, urethra, and/or vagina.

On April 13, 2016, the jury awarded the plaintiff $10 million for past pain and suffering and $40 million for future pain and suffering over 43 years. The jury assigned 90% of the liability to the obstetrician, and thus the hospital under vicarious liability, and 10% to the midwife.

What this means to you: This case shows the value of developing reliable medical records for each patient. In an interview conducted after the trial, the obstetrician claimed the medical records supported his contention that the patient did not complain to him or any nurses about the medical problems she faced, counter to what she told the jury through her attorney. The jury did not agree.

A strong and comprehensive medical record can help eliminate false claims and protect medical professionals from liability. In this case, had the physician documented the patient’s initial complaint, the expectation of both medical and non-medical reviewers would be to see documentation of the physician’s response to her complaint, such as the result of the examination performed to ensure there were no post-episiotomy complications. Dismissing a patient’s complaint without even a minimal and documented investigation places both patient and physician at risk.

The midwife’s report to the physician relating to the same complaint apparently went unheeded as well. Here, the midwife, acting as patient caregiver and advocate, had a responsibility and an opportunity to pursue further investigation by the physician, knowing that the symptoms the patient is still experiencing are not likely to be “normal.” It is imperative for all medical professionals to pay very close attention to patients’ complaints to ensure symptoms do not explode into untreatable nightmares. Following up with patients is a simple solution that may seem costly or burdensome on the front end, but can serve to eliminate larger problems later.

This case also demonstrates the risks of vicarious liability, especially considering the obstetrician’s refusal to settle. The obstetrician told an interviewer that he refused to settle the case because he believed he did nothing wrong. The jury did not agree. Individual doctors may have personal issues that prevent them from agreeing to rational settlements and motivate them to roll the dice, especially if an employer hospital also will be on the hook for any verdict.

Laws governing the status of physicians as hospital employees vary from state to state, so it is important to consult with qualified counsel, but a hospital may consider eliminating its employer-employee relationship with medical professionals to avoid vicarious liability. An alternative to removing the employee status is to implement incentives for exercising good care or punishments for exposing the hospital to liability.

One recent trend in this regard is that some hospitals are asking patients to sign or initial statements added to the Conditions of Admission form they sign to consent for treatment. The new language expressly documents the patient’s understanding of the non-employee relationship between the physician and the hospital. Signs are posted often in such hospitals and in physician’s offices, reiterating the physician’s position as an independent practitioner who functions under the licenses issued by the medical board of a particular state, rather than as an employee of a particular hospital. Even with these safeguards, hospitals and their attorneys may remain challenged to successfully circumvent the ostensible agency phenomenon.


  • Supreme Court, Twelfth Judicial District, Bronx County, New York. Case No. 308417/11 (April 13, 2016).