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Is Surgery Center Liable for Patient's Miscarriage?

Legal battle centers on pregnancy test and pre-op medications.

Published: May 31, 2013

One summer day in 2003, a patient who wasn't aware that she was pregnant went to a Monroe, La., surgery center for a scheduled hysterectomy and fallopian tube removal. Ten days later she miscarried. Did she lose the baby because of the medications she was given in pre-op, before providers learned the results of a pregnancy test and canceled the case? That question is currently being debated in state courts.

The patient, Shelly McClendon, underwent radiology and laboratory screenings, including a pregnancy test, 2 days before her scheduled procedure. In pre-op at P&S Surgery Center, anesthesiologist Rosemary Stage, MD, gave her Versed and Decadron, among other medications. Before Ms. McClendon was wheeled into the OR, however, the surgical team learned her pregnancy test had come back positive. The case was immediately canceled.

Three years after the miscarriage, Ms. McClendon sued the center and Dr. Stage, accusing them of breaching the standard of care by failing to properly interpret laboratory diagnostics, namely the positive pregnancy test; by referring a pregnant patient to radiology; and by administering medications contraindicated for pregnant patients.

The ensuing legal battle centered on whether the pre-op medications, particularly Versed, caused the miscarriage. Expert witnesses from both sides agreed that Ms. McClendon's pregnancy should have been discovered earlier and that the case should have been canceled before she was given the pre-op drugs.

However, defense witnesses found no connections in medical literature between those medications and an increased risk of miscarriage. Ms. McClendon's legal team countered that Versed and Decadron are potentially harmful to fetuses and that it is standard practice among anesthesia providers to avoid using Versed on pregnant patients, particularly during the first trimester.

A trial court ruled in favor of Ms. McClendon, but an appeals court overturned the decision, citing Ms. McClendon's failure to prove the surgery center and physicians were responsible for causing the miscarriage. The Louisiana Supreme Court recently vacated the circuit court's ruling without cause, though, which has returned the case to trial.

"We're back to square one," says Bruce McKamy Mintz, attorney for P&S Surgery Center, who's requested a hearing with the Supreme Court to determine the reasons for its decision. "If that doesn't work, we'll set the case for trial or settle it."

Ms. Mintz isn't sure how much the second trial would differ from the first but, she says, "no doubt it would involve testimony from pharmacologists addressing the effects of benzodiazepines when taken in the first trimester of pregnancy."

Ms. McClendon's attorney did not immediately respond to a request for comment.

Daniel Cook


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