News: A woman underwent a third trimester abortion and subsequently suffered complications. She developed an amniotic fluid embolus and died. The woman’s husband filed a medical malpractice and wrongful death suit against the physician who examined the patient and allegedly failed to identify abnormalities in the fetus earlier during the pregnancy. During the litigation, the plaintiff amended his complaint to include a theory of liability based on negligence. The defendant physician brought a motion for summary judgment. The trial court found that the physician established that any alleged departures from the applicable standard of care were not the proximate cause of the patient’s injuries.

The plaintiff appealed the ruling granting the physician’s motion, but the appellate court upheld the ruling. The appellate court confirmed that the plaintiff failed to demonstrate that a triable issue of material fact existed, and that judgment for the physician was proper.

Background: In October 2012, a woman 20 weeks pregnant underwent a sonogram of her fetus. A maternal fetal medicine physician performed and analyzed the scan. Although the physician noted some asymmetry, he determined that the study was normal and recommended a repeat scan in six to eight weeks. At the end of January 2013, a second ultrasound was performed. The physician who interpreted the second scan noticed abnormalities in the fetus’ cerebral development. In particular, the physician noted that the fetus’ cerebral ventricles appeared to be dilated and recommended further evaluation and studies. A third ultrasound conducted three days later revealed bilateral moderate ventriculomegaly.

Following the third ultrasound, the physician ordered further testing and referred the patient for a fetal MRI. The MRI revealed agenesis of the corpus callosum and polymicrogyria, a condition characterized by abnormal development of the brain, which can lead to severe intellectual disability, problems with movement, and seizures that are difficult or impossible to control with medication. The MRI results worsened the initial findings from the ultrasounds and confirmed that the fetus suffered from developmental abnormalities. After receiving counseling, the patient opted to terminate the pregnancy. The patient was in her third trimester, and the termination procedure presented higher risk compared to first or second trimester abortions. Nevertheless, the patient underwent the abortion, which was performed over the course of four days in early February 2013. On the fourth day, the patient was discharged.

However, shortly after arriving home, the patient’s condition rapidly deteriorated, and she returned to the hospital the next morning, where she subsequently passed away. The medical examiner ruled the cause of death to be disseminated intravascular coagulation due to an amniotic fluid embolus.

A year after the patient’s death, the patient’s husband filed a medical malpractice and wrongful death suit against the physician who failed to identify the fetal abnormalities at the 20-week ultrasound. The physician denied wrongdoing.

In his defense, the physician submitted an affidavit of an expert in maternal fetal medicine who opined that, because there is no medical basis indicating that a third trimester termination procedure causes an amniotic fluid embolus, the physician’s alleged failure to diagnose fetal abnormalities did not cause the patient to sustain, or increase her risk of sustaining, an embolus. After the defendant physician raised this defense, the plaintiff amended his complaint, alleging that the defendant’s negligence caused the patient to develop an infection and die of septic shock.

The defendant physician filed a motion for summary judgment, and the trial court found that the physician established that any alleged departures from the applicable standard of care were not the proximate cause of the patient’s injuries. The trial court granted the motion and ruled in favor of the physician.

The plaintiff appealed the ruling, but the appellate court confirmed that the plaintiff failed to demonstrate that a triable issue of material fact existed, and that judgment for the physician was proper.

What this means to you: In this case, the alleged wrongdoing focused on the initial ultrasound, with the patient’s husband claiming that the defendant physician failed to timely diagnose the patient. The plaintiff claimed that defendant physician’s failure to identify abnormalities in the fetal scan performed at 20 weeks was the proximate cause of his wife’s death because of amniotic fluid embolus. Under this theory, if the defendant identified such abnormalities in the fetus’ brain development, the patient would have chosen to terminate the pregnancy at 20 weeks instead of during the third trimester. It is known that abortions performed during the third trimester present a higher risk of complications compared to abortions performed during earlier stages. Thus, according to the allegations, the riskier procedure caused the patient to develop the embolus that eventually led to her death.

However, according to the defendant’s expert, there was no medical evidence to suggest a connection between third trimester abortion and the development of amniotic fluid embolus. This effectively exonerated the defendant of liability because of the lack of causation, which is a necessary element in medical malpractice actions.

Indeed, no evidence was proffered to support the theory that the defendant’s lack of an early diagnosis was the proximate cause of the patient’s death. Thus, while third trimester abortions do present a higher level of risk, the plaintiff failed to present supporting evidence demonstrating that one of the consequences was the development of amniotic fluid embolus.

As noted by the court, once the defendant moved for summary judgment and satisfied his prima facie burden of presenting evidence indicating that he did not deviate from the standard of care, the burden of proof shifted onto the plaintiff. Rather than providing evidence in support of his claim, the plaintiff sought to amend his complaint and introduce a new theory of causation: The patient died due to negligence of the defendant, which had caused an infection resulting in septic shock and death.

The appellate court agreed with the defendant that under the circumstances, leave to amend the complaint should not have been granted. The court noted that the action had been filed more than three years prior to the motion to amend the complaint and that the plaintiff aimed at introducing a new theory of liability without giving the defendant notice. Furthermore, the defendant satisfied his burden of proof, and the plaintiff failed to present supporting evidence. Thus, there was sufficient ground to grant a summary judgment in favor of the defendant.

While the plaintiff attempted to amend the complaint to allege an alternative theory of causation to survive summary judgment, those efforts were unsuccessful. Fortunately for the defendant physician in this case, the medical examiner’s report identified the cause of death as disseminated intravascular coagulation due to amniotic fluid embolus. Even if the plaintiff had included these alternative allegations in the initial complaint, it is unlikely to have been effective. Plaintiffs are permitted to initially plead contradictory or inconsistent facts, but they cannot be maintained all the way through a trial. If a plaintiff makes factual allegations that conflict with other allegations or are unsupported by the evidence, a defendant care provider should promptly challenge such allegations with evidence — such as the report in this case, or with qualified expert testimony — to dispose of the irrelevant allegations. In this case, the defendant physician successfully dismantled the plaintiff’s multiple theories of causation, which defeated the medical malpractice claim.

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Decided on Aug. 21, 2019, in the Second Department of the New York Supreme Court, Appellate Division, Case Number 175 A.D.3d 614.