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    Detecting abnormalities, documenting options

    Alleged failure to detect fetal abnormalities earlier in pregnancy, and other cases.

    A California woman was 35-years-old when she delivered an infant in 2014, and the father was 51-years-old. She was 10 weeks pregnant when she went to a clinic for care. She elected to participate in the state prenatal screening program, and the results of the screening tests were reported as within normal limits and the risk of birth defects was 1:230. Two weeks later she had her first appointment with an obstetrician and he informed her that the negative prenatal screening indicated that the infant most likely would be born without defects. He ordered an ultrasound to assess fetal structures. The radiologist reported that the ultrasound did not visualize the fetal anatomy well; however, the obstetrician allegedly told the patient at her next visit when she was 23 weeks that the ultrasound was normal. A month later the patient returned to her original physician who noticed that the ultrasound report indicated that the fetal survey was not complete. He ordered another ultrasound with a perinatologist. A significant cardiac defect in the fetal heart was found, and further testing confirmed the fetus had Down’s syndrome. The patient was scheduled for a late term abortion but she did not keep that appointment, fearing that it was illegal. The infant was born and has severe Down’s syndrome.

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    The parents sued all those involved with the prenatal care and alleged that both physicians were told the parents wanted all available testing because of a family history of birth defects, and that they would terminate the pregnancy if fetal abnormalities were found. They contended that the obstetrician was obligated to discuss diagnostic testing such as amniocentesis with the patient despite the negative screening tests and, because he did not, the diagnosis was made too late to terminate the pregnancy. The patient testified she never heard of amniocentesis until she was seen by the perinatologist.

    The obstetrician denied having any discussions with the parents of their desire to have all tests possible or their wanting to terminate the pregnancy if abnormalities were found. He stated that the difficulty in visualizing the fetus in the second trimester was not uncommon and that he would have routinely ordered a follow-up ultrasound. He also argued that he was not responsible for discussing all prenatal testing with the parents since that discussion should happen in the first trimester when she was seeing her original physician; so he assumed that discussion had already taken place. Further, the defense argued that a prenatal screening pamphlet, which the patient signed at 10 weeks gestation, discussed amniocentesis as a diagnostic test. The jury returned a defense verdict after 4 1/2 hours of deliberations.

    Verdict: A defense was returned

    Analysis

    In medical malpractice cases that involve delivery of an infant with an abnormality that can be detected by a specific laboratory test, like Down’s syndrome, the parents must show that the physician was below the standard of care in not offering the test, and they also must show they would have terminated the pregnancy had they known of the abnormality. In this case, even though the patient testified that she had not heard of amniocentesis until too late, there was contradicting testimony. The infant’s grandmother testified that she had a conversation about amniocentesis with the parents early in their pregnancy. In addition, a former employee of the obstetrician’s office testified that after the Down’s syndrome diagnosis was made she asked the patient why she had not chosen amniocentesis earlier in the pregnancy, and the patient said she decided against it because her prenatal screening test was normal. So not only had she heard of amniocentesis, according to the employee’s recollection she had made the choice not to have it much earlier in the pregnancy.

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