News: In 2016, a woman was 27 weeks pregnant with twins. In the final stages of her pregnancy, she visited a physician four times to address abnormal discharge and abdominal pain, but was sent home each time. Less than three days after her final visit, the patient returned to the hospital in labor and gave birth to the first twin within 12 minutes of arriving. Due to complications during delivery, the premature baby suffered injuries that led to her death a month later.

During the subsequent malpractice action, the defendants challenged the sufficiency of the patient’s expert report. However, an appellate panel rejected every claim the hospital raised as to the sufficiency of an expert report submitted by the patient. The court ruled the information in the report satisfied the requirements for admissibility of an expert report.

Background: In 2016, the 25-year-old patient was pregnant with twins. The patient gave birth to two children before becoming pregnant with these twins. From April 2016 to July 2016, the patient saw a physician for prenatal care visits. In April 2016, an ultrasound revealed each twin was healthy and the pregnancy was proceeding as expected. A second ultrasound was performed in early June, which again showed the twins were healthy.

Three weeks later, the patient returned to the physician for a follow-up visit that showed no abnormalities. However, five days later, the patient arrived to the hospital complaining about mucous discharge over the past five days, accompanied by abdominal cramps, diarrhea, and mild contractions. A different physician at the hospital examined the patient but did not observe any vaginal bleeding or fluid leakage, contractions, or pelvic pain. Further examination revealed the patient’s cervix was not dilated. However, no scans or ultrasounds were performed.

The patient was sent home after receiving a concentrated electrolyte shot, and was instructed to follow up with her physician two weeks later. The hospital physician called the patient’s physician to inform him of the situation. The patient’s primary physician confirmed he would see the patient during the regularly scheduled appointment. Two days later, the patient returned to the hospital in labor. Within 12 minutes of her arrival, she delivered the first twin.

The hospital report indicated when she arrived at the hospital the amniotic sac was protruding and the patient presented bright red vaginal bleeding and heavy drainage with a foul odor. The first twin was in a breech position, which caused her head to get stuck in the patient’s cervix for five minutes. After delivery, the baby’s heart rate was low, she was blue, and was not breathing. She required immediate resuscitation. The baby was transferred to the neonatal intensive care unit, where she experienced seizures due to grade IV intraventricular hemorrhage on the left side of her brain and grade II intraventricular hemorrhage on the right side of her brain with post-hemorrhagic hydrocephalus. The second twin was delivered through an emergency cesarean section and also required intensive care for several weeks. However, in early August, the first twin died. The second twin’s condition steadily improved until she was discharged.

The patient filed a medical malpractice action against multiple care providers: her primary physician (a gynecologist), the physician who examined her at the hospital, the nurse who assisted during delivery of the first twin, and the hospital that employed the medical staff. The defendants all denied liability and brought a motion to dismiss the case, arguing the patient’s expert report was deficient. The trial court denied the defendants’ motion, and they appealed the denial. The defendants continued to argue the expert report was insufficient, but the court of appeals found in favor of the patient and affirmed the trial court’s denial of defendants’ motion to dismiss.

What this means to you: As with many medical malpractice cases, the primary issues in this case revolve around expert witnesses, who are almost always necessary and who can make or break a malpractice defense. Here, the defendants argued the report presented by the patient’s expert was insufficient to establish a prima facie case of negligence because the expert was not qualified to opine on neurological injuries, and the report did not adequately address the issue of causation regarding the patient’s physician. The hospital defendant also claimed the patient failed to provide sufficient evidence as to the hospital’s breach of duty of care and causation.

The plaintiff’s key evidence was the expert report prepared by a practicing gynecologist who explained how the medical staff failed to identify the preterm labor risk factors the patient started presenting in late June, failed to investigate whether the patient was about to enter preterm labor, and consequently failed to act to prevent preterm labor. Specifically, the expert opined preterm labor occurs before the 37th week of pregnancy.

In this case, the patient went into labor and delivered the twins when she was 27 weeks pregnant, which poses extreme risk to the infants since their organs are not fully developed. Furthermore, the expert opined that multiple gestation pregnancy is one of the known risk factors for preterm labor. Given this additional factor, the patient’s physician should have been closely monitoring the patient for preterm labor symptoms once the twin pregnancy was confirmed through ultrasound in April 2016. The expert also alleged increased vaginal discharge, abdominal cramps with or without diarrhea, and contractions all were symptoms of preterm labor. Thus, when the patient arrived to the hospital complaining about these symptoms, her physician should have immediately ordered an ultrasound and monitored her closely to determine whether the patient was going into preterm labor.

Unfortunately, no ultrasound was performed. When alerted, the primary physician said he would see the patient during her scheduled appointment two weeks later. The patient was sent home after a concentrated electrolyte injection even though she clearly presented with symptoms of preterm labor. By failing to perform an ultrasound and investigate the patient’s condition, the medical staff and physician breached their duty of care.

Moreover, according to the patient’s expert, there are several methods to stop preterm labor, including bed rest, medications to stop contractions, and medications that help accelerate the development of the babies’ organs. Had the defendants identified the symptoms of preterm labor, the patient could have continued the pregnancy for several weeks, and the babies would have been delivered in a safer manner, preventing the injuries and the death of the first twin.

There are several additional issues the physician and hospital could have managed and treated more appropriately. The foul-smelling discharge noted after the spontaneous delivery of the first twin required attention. A culture of the vaginal discharge should have been taken after the physician learned of its persistence. This might have shown the presence of chorioamnionitis, or infection within the uterus and amniotic fluid, which requires interventions such as antibiotics. Chorioamnionitis can cause preterm labor and delivery. Had an ultrasound been performed earlier, the presence of the breech presentation could have been anticipated by the staff present during the delivery.

To undermine these harmful expert opinions, the defendants argued that because the expert was not a neurologist, he was not qualified to opine as to the twins’ neurological injuries. Additionally, because there was no guarantee that preterm labor would have been avoided, there was a lack of evidence as to causation. While this is a proper procedure for defending against opposing experts — trying to rebuke the expert’s relevance — the defendants in this case were unsuccessful. The court explained the expert report must provide a “fair summary” of the expert’s opinions regarding the applicable standard of care, how the care rendered by the defendant physician or healthcare provider breached the standard of care, and the causal relationship between the failure and the damages claimed. Here, the patient’s expert satisfied these requirements, and the court afforded weight to the expert’s opinion. Although the defendants in this case were unsuccessful, this case confirms that procedurally, challenging a patient’s expert may prove worthwhile. If the expert’s qualifications are questioned, the expert’s opinions and harmful conclusions may be excluded. At a minimum, undermining an opposing expert can help bolster a care provider’s own expert opinion, making it appear more reasonable and appropriate.

REFERENCE

  • Decided Aug. 25, 2020, in the First Court of Appeals of Texas, Case Number 01-19-00094-cv.