Reprinted from The Scope: Medical Edition, Issue 16 (First Quarter 2024)
By Mirsade Markovic, an attorney with the MLMIC Legal Department, and Katherine Harth, Assistant Vice President of Claims with MLMIC
In this case, a 25-year-old female alleged that, during her pregnancy, she was not fully informed that her infant would suffer birth defects, and, had she known, she would have opted to terminate the pregnancy.
Treatment
The patient was initially seen in the emergency department (ED) of a MLMIC-insured hospital with complaints of discomfort when urinating and a potential pregnancy, as a home test had been positive. A serum pregnancy test was positive, but a transabdominal sonogram did not detect the pregnancy. A pelvic exam and transvaginal ultrasound were offered, but the patient refused.
She was diagnosed with a urinary tract infection and “early pregnancy” and advised to follow up with her primary medical physician, as well as an obstetrician.
Two months later, the patient was seen by a MLMIC-insured OB-GYN for a confirmed pregnancy and was referred for an ultrasound. The ultrasound was performed and interpreted by a MLMIC-insured radiologist, who confirmed a gestational age of 13 weeks and four days. There was no mention of an abnormality on the report or discussions with the mother reporting any issues with the fetus, including an omphalocele.
The following day, the patient presented to the hospital’s ED complaining of heavy bleeding the previous day. She was seen by a MLMIC-insured nurse practitioner, and the physical and pelvic exams were normal. An ultrasound was performed, and the report by another MLMIC-insured radiologist stated, “single intrauterine gestation with estimated gestational age of 13 weeks and two days with a fetal heart [rate] of 145 bpm” and “an ovoid soft tissue mass-like structure along the anterior abdominal wall, possibly an omphalocele versus physiologic herniation.”
This was the first indication of an abnormality with the fetus. However, on the patient’s next visit to the OB-GYN, while there was no mention of this negative ultrasound or any discussion with the patient, the patient was referred for a Level 2 sonogram. The reason stated for this study was “presumed omphalocele on prior exam.”
This ultrasound was not done until four weeks later at a gestational age between 19 and 20 weeks. It was interpreted by another MLMIC-insured radiologist, who confirmed the omphalocele along with a left-sided diaphragmatic hernia. Close clinical observation and consultation were suggested. However, although the patient was seen by her obstetrician on two more occasions, the ultrasound findings were not conveyed to her on either visit.
At 27 weeks and one day, the patient requested a 3D ultrasound as a keepsake of her pregnancy. She was told by the radiology office at that point that this could not be done, and they advised her to contact her OB-GYN. She was seen by this doctor that day, and the issues with the fetus were discussed. At that point, her physician referred her to a perinatology office.
The patient was seen at the perinatology center at 29 weeks, and a Level 2 ultrasound confirmed “the presence of a large omphalocele with a portion of the fetal liver, diaphragmatic hernia and significant displacement of fetal heart and stomach.” Chromosomal studies were normal, but the patient was advised of the complexity of the situation and that the infant would require surgery.
The pregnancy continued to term, and the infant was delivered via C-section at 39 weeks. The infant was transferred to the NICU at another hospital and remained there for seven months, requiring multiple surgeries and procedures including three hernia repair surgeries, the placement of a gastrostomy tube and surgery to correct gastroesophageal reflux disease. The infant suffered significant developmental and global delays, asthma and respiratory distress and is on a host of medications. The infant uses oxygen and has had multiple hospitalizations, in addition to needing a G-tube for feedings. Gastroenterology and nutritionists were recommended, though the family has been lax in this department. The infant requires occupational, physical and speech therapy, as well as special education.
Expert Opinions
This case was reviewed by specialists in obstetrics and gynecology, radiology, emergency medicine and pediatrics. Their consensus was that an OB- GYN should follow up on the results of all ordered sonograms, discuss the results with the patient and provide counsel accordingly. This was clearly necessary in this case due to the serious nature of the fetal abnormality.
The radiology and ED experts agreed that, while it is the referring physician’s responsibility to advise the patient of all sonogram findings, they suggested that the radiologists should have communicated with the OB-GYN to ensure that the reports had been received, especially due to the findings.
The pediatric reviewer opined that the infant suffered from congenital defects and no treatment would have prevented the outcome. However, the mother was not counseled appropriately regarding the nature of the abnormalities and was denied the opportunity to terminate the pregnancy should this have been her choice.
Lawsuit
The mother brought an action against multiple MLMIC-insured physicians to recover expenses related to childcare and alleging failure to provide appropriate ultrasound results that confirmed possible birth defects. She alleged that had she been provided with this information, she would have sought a termination of the pregnancy to avoid the expense of caring for a child with multiple deficits. The mother sought to recover expenses incurred to care for the infant’s special needs until the age of 21 and claimed that the child was disfigured (abdomen) and suffered from health issues, including omphalocele, a congenital hernia, hypertension and chronic respiratory issues.
During the patient’s deposition, she was questioned as to whether she would have undergone an abortion had she been aware of the infant’s condition when termination of the pregnancy was a viable option. She testified that “she did not know if she would have sought an abortion.” The patient was the recipient of social services and testified that, other than formula, she did not incur out-of-pocket expenses to care for the child, and, at most, her total expenditures were $1,000. The infant received Social Security Disability.
Although the plaintiff initially denied being pregnant during her deposition, it was clear that she was pregnant and was not forthcoming during her testimony. This tarnished her credibility.
The defense counsel felt that the damages in this case were not significant due to the testimony regarding the plaintiff’s minimal expenses and reasoned the chances of recovering on this matter would be questionable. As such, they were able to successfully obtain stipulations of discontinuance for all of the radiology defendants. A motion for summary judgment was made on behalf of the remaining physicians, which was granted. The plaintiff’s counsel did not seek an appeal, and our files were closed with no indemnity payments made on behalf of our policyholders.
A Legal and Risk Management Analysis
In this situation, the favorable result for the defendants was not a victory to be celebrated. Although there was a fortunate legal outcome, there were clear deviations in the treatment that resulted in irreparable harm to the plaintiff. The failure to provide this patient with the test results revealing the fetal abnormality in a timely manner led to serious consequences.
First, the OB-GYN failed to follow up on the test results of the sonograms ordered. This resulted in a failure to discuss and appropriately counsel the patient about the crucial findings of the abnormality and allow the patient to make an informed decision about the progression of her pregnancy. It is the responsibility of the ordering physician to promptly follow up and review the results of diagnostic tests. This is critical for patient safety, and the failure to do so can lead to a delayed or missed diagnosis, as it did in the case at hand.
Medical offices need to have an effective test result tracking system that will efficiently follow up on test results to guarantee that they are received. They should also have communication policies and procedures that will ensure patients obtain these results in a timely manner. This communication is vital. Patients should know the results of any medical tests they have undertaken, especially those that have a significant finding.
Second, other than solely relying on the written report, the radiologists should have reported the abnormal test results to the ordering physician. As seen in this matter, the breakdown of communication and the failure to report the vital abnormal results directly to the ordering physician resulted in a delay to inform and a serious detrimental outcome for the patient.
Providing timely and accurate information on test results is essential for safe and effective healthcare.
MLMIC recognizes that communicating test results is an important part of providing care and may involve various healthcare professionals. Test results may be overlooked, lost, scanned into the wrong record or otherwise misplaced.
Abnormal test results requiring follow-up present an additional risk if they are not received, reviewed or communicated to the patient. This may result in missed or delayed diagnoses, patient injuries and subsequent claims of malpractice.
If a physician orders a test, he or she is responsible for ensuring that the results have been received and reviewed. Physician practices should have policies and procedures in place for the management of test results.
To review additional recommendations for communicating test results, look here.
This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.
Share:
