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Medical procedure removes fetus; couple sues

Feb. 25, 2013 - 09:24AM   |   Last Updated: Feb. 25, 2013 - 09:24AM  |  
Army Sgt. Maj. Charles Fergurson and his wife, Heather, are photographed Feb. 12 in the office of their lawyer in Virginia Beach, Va.
Army Sgt. Maj. Charles Fergurson and his wife, Heather, are photographed Feb. 12 in the office of their lawyer in Virginia Beach, Va. (Steve Earley / The Virginian-Pilot)
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Heather Fergurson went to the hospital at Langley Air Force Base, Va., on April 18, 2011, for her first prenatal visit in anticipation of her second child.

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Heather Fergurson went to the hospital at Langley Air Force Base, Va., on April 18, 2011, for her first prenatal visit in anticipation of her second child.

A certified nurse-midwife told Fergurson and her husband, Army Sgt. Maj. Charles Fergurson, that the pregnancy appeared to be about 12 weeks along. But the midwife couldn't find a heart tone.

She further discovered what she thought was a cystic mass in Heather's uterus — but no fetus. An obstetrician-gynecologist confirmed the findings. Before she left the hospital, Heather underwent a procedure to remove what she believed were potentially cancerous cells.

Days later, the Fergursons received unimaginable news: Heather actually had been pregnant. The procedure had killed her healthy, 11-week-old fetus, according to a $1.7 million lawsuit filed against the government Feb. 5 in U.S. District Court.

While the so-called Feres Doctrine prevents service members from suing the government for medical practice, it does not preclude military dependents from filing claims.

The lawsuit alleges negligence, misdiagnosis and failure to identify Heather's pregnancy. It also accuses the government of performing the procedure without waiting for the results of a formal ultrasound — which described a live fetus with a heart rate of 162 beats per minute.

A Langley spokesman said the Air Force cannot comment on pending litigation.

"Obviously, we take the welfare of our patients very seriously," Michael Martin said. "We strive to provide the best care at all times."

Carlton F. Bennett, the Virginia Beach, Va., attorney representing the Fergursons, said the case could go before a federal jury in the next six months. He called it "the worst case I've ever had in 40 years of law practice. It's criminal. It's egregious. These people ought to be prosecuted."

The midwife, identified in the lawsuit as Catherine Jones, "ordered various medical tests, including a formal pelvic ultrasound by radiology," after her examination, according to the claim. Dr. Beverly Reed, the OB/GYN who confirmed Jones' diagnosis, told Heather that another doctor, James Anthony Reed — neither related nor married to Beverly Reed — would meet with her after the tests were complete.

James Anthony Reed "discussed Mrs. Fergurson's case with her," the lawsuit claims. "Despite being aware that Mrs. Fergurson had undergone a ‘formal' ultrasound since her arrival at the hospital that morning," James Anthony Reed took her to the operating room and performed the procedure without reviewing the results of the ultrasound or the report generated by it.

The report "clearly describes a live fetus," according to the lawsuit. Those findings were not communicated to Jones, James Anthony Reed, Beverly Reed or any of the other health care providers, it alleges.

Bennett, the attorney, declined an Air Force Times interview request with the Fergursons. He said recounting the events of that day is still traumatic for the couple, who live in Chesapeake, Va.

The Fergursons had begun trying for a second child three years earlier, the couple told The Virginian-Pilot recently. Heather had two miscarriages before becoming pregnant for a third time in early 2011. The baby would have been due around Christmas, said Charles, who is stationed at Joint Forces Command in Suffolk, Va.

Heather has not been able to conceive again.

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