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    Ob/gyn neglects to read test results; infant is exposed to HSV


    Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback on this column via email to [email protected].




    On October 7, 2008, a woman began prenatal treatment at the defendant clinic. Her expected date of delivery was calculated to be April 26, 2009. Her medical history was significant for having suffered from seizures (which were treated with medication) during adolescence. She had routine visits and normal ultrasounds through March 2009. On March 4, she reported having some slight light-brown vaginal discharge on 2 occasions. She was instructed that if she had bright red bleeding or black secretions to go directly to the labor and delivery department.

    On March 17, the patient was at 34.2 weeks and reported having had an episode of dysuria. The fetus was noted to have positive movement and there was no evidence of any loss of fluid or vaginal bleeding. The fetal heart rate (FHR) was 140. The patient was to undergo weekly visits and to have a group B Streptococcus (GBS) test at 36 weeks. At this point, the record indicates that the patient’s care was transferred to the defendant ob/gyn’s private clinic, where she presented for the first time on March 23. At that time, the patient was complaining of a sore near her anus. The patient underwent an endocervical culture. This study was negative for chlamydia and gonorrhea. At the same visit, she also underwent a vaginal/rectal swab to rule out herpes simplex virus (HSV). The patient was to return in 1 week and to follow up on the HSV culture.

    On March 25, ultrasound (U/S) revealed normal amniotic fluid volume with the placenta anterior in implantation, grade II in appearance and no placenta previa. The fetal growth appeared normal and the anatomy details were normal. The infant had a regular fetal heart rate of 155. The gestational age was 34 weeks, 4 days.

    The report on the HSV and GBS cultures indicated that the specimen taken on March 23 was “negative to date" and that the status was “preliminary.” According to the defendant ob/gyn, both these forms were printed from the hospital computer, to which she had access in her office. The vaginal/rectal swab culture was reported as positive for “herpes simplex virus, Type II, isolated” on April 1. On the morning of April 2, the patient presented to the “triage room” and stated that she had fallen in the subway (although she had not fallen on her abdomen). At that visit, the patient reported a surgical history of polypectomy cone biopsy but indicated that her Pap smears had been normal since then. She was found to be 3- to 4-cm dilated and was given intravenous (IV) hydration, re-evaluated, and discharged home with labor precautions and instructions to follow up with the defendant ob/gyn “on Monday.” There is no reference in the record to the positive culture results.


    Andrew I. Kaplan, Esq
    Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare ...


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    • Dr. Mark Martens
      Unfortunately, the defendents probably got poor advice. The mother developed IgG antibodies by 28 days, which would reach the baby. She did not need a c-sx, nor was the baby infected in utero. The positive nasal swab was either a false positive or acquired after delivery at home or in the hospital. If the strain IS from the Mom, it would NEVER lead to serious infection. The most probable scenario is that the maternal antibodies will decline in the bay in a year, and if re-tested, show that the bay is not infected at all. Unfortunately a very defensible case, and the Pediatric ID should have been the one sued because he/she has no concept of Herpes transmission and the baby did not require most of the invasive testing. C-sx was not necessary, and Valtrex was not needed. Too bad proper OB-ID consultation was not solicited for the defense.
    • Thebabydoc
      $200K, "to resolve the case quickly and reasonably?" Aren't proveable damages one of the basic three requirements for malpractice litigation? This was an UNreasonable settlement given the lack of real damages. Herein lies the basic issue with malpractice litigation in this country. As the plaintiff's lawyers needed to see their 25-33% (or more), any settlement for a "reasonable" amount (say $50,000) was left by the wayside and the legal costs of defending an "indefensible" case left to play the lion's share in deciding a final number.


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