Documentation: Physician’s Progress Notes Raised Issues of Credibility, Jury Awards More than $4M

​A Georgia court of appeals upheld a jury verdict against an obstetrician and his professional practice group, ruling that a jury could reasonably decide that the defendant's progress notes involved deliberate deception rather than simply a mistake. The plaintiffs sued two obstetricians and their professional association, seeking damages resulting from the death of their premature newborn. The jury awarded over $4 million, apportioning 50% of the fault to the on-call obstetrician and his group and 50% to another defendant physician, not party to this appeal. The jury found that the on-call obstetrician was negligent in failing to come to the hospital emergency department (ED) and properly diagnose and treat the patient. The plaintiffs alleged that the patient should have received a cerclage, or administration of progesterone to prevent preterm delivery. The physician appealed, claiming that the plaintiffs failed to present evidence of causation, and that the trial court erred in permitting him to be cross-examined about the truthfulness of a progress note he entered in the patient's record. The patient had a history of miscarriages and had undergone a loop electrosurgical excision procedure (LEEP) to remove abnormal tissue from her cervix. At trial, evidence was presented that LEEP can increase a woman's risk for an “incompetent" or “insufficient" cervix. Administering progesterone and/or performing cerclage were known treatments for cervical incompetence at the time the patient was treated. Periodic ultrasounds over the course of the mother's pregnancy showed progressive shortening of her cervix. The mother was told to “take it easy" and to return in one week for another ultrasound. A day before her scheduled visit, she had thick, dark vaginal discharge. Her husband drove her to the hospital ED. While en route, the mother spoke by phone with the obstetrician, informing him of the prior LEEP procedure, recent ultrasound report, her week of bed rest, and her symptoms. He told her the ED would likely send her home and suggested she keep her scheduled appointment the next morning. At the ED, an obstetric nurse saw the patient and noted that the patient's cervix was not dilated and that she was having no contractions. The nurse called the obstetrician and reported her findings. She then told the patient that the physician had diagnosed a urinary tract infection and discharged her with instructions to keep her appointment the next morning. Early the next morning, the patient called the physician to report worsening symptoms. He discouraged her from returning to the ED. Another obstetrician in the group examined her, ordered an ultrasound, and diagnosed “possible incompetent cervix." She was sent to the hospital labor and delivery department, where she delivered by emergency cesarean an infant of gestational age of 23 weeks and 4 days, weighing 1 lb, 4 oz. The baby died in the neonatal intensive care unit.