Evaluating Obstetric


Malpractice Cases (Continued from page 13)


also may be liable, under the doctrine of apparent agency, for the negligence of physicians who have staff privileges, and independent contractors, such as anesthe- siologists, radiologists, or pathologists.13 When trying to determine when and un- der what circumstances hospitals will be held liable for the negligence of staff phy- sicians - particularly obstetricians who staff medical clinics and other facilities located on or adjacent to the hospital pre- mises - the Maryland courts follow the Restatement (Second) of Torts §267 (1958) in deciding whether an apparent agency exists. The patient must show: (1) that he or she was misled by the purported principal into believing that the purported agent was an employee, (2) the belief was objectively reasonable under all cir- cumstances, and (3) the patient relied on the existence of the relationship in mak- ing his or her decision to entrust the purported agent.14


Health Maintenance Organizations (“HMO’s”). It is essential that every medi- cal malpractice lawyer understand that, while HMO’s are vicariously liable for the negligent acts and omissions of their ser- vants, agents, and employees, unlike hospitals, HMO’s enjoy certain protec- tions under the provisions of the Employee Retirement Income Security Act of 1974 (“ERISA”).15


In Maryland,


the courts have distinguished between claims that a physician employed by an HMO was negligent, and claims that cer- tain benefits or services were denied.16


13 14


15 16


Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977).


Jacobs v. Meade Flynn, 131 Md. App. 342, 749 A.2d 174 (2000). 29 USC §§1001-1446.


Prihoda v. Shpritz, 914 F. Supp. 113 (D, Md. 1996).


Thus, physicians employed by HMOs are subject to the same standards of care that apply to other physicians, and claims of vicarious liability against HMOs for the negligence of its employees are not pre- empted under federal law.


DEPARTURES FROM THE STANDARD OF CARE


The Failure To Diagnose. Since the po- tential for more severe and diffuse brain injury increases with the severity and du- ration of any hypoxic or ischemic insult, early diagnosis of fetal distress and timely intervention to manage the maternal or fetal conditions that can lead to asphyxia is a vital component of the standard of care. Thus, attorneys should not over- look the importance of the physician’s responsibility to obtain a detailed medi- cal history, to identify high-risk factors that are present at the start of the preg- nancy or that arise with advancing gestation, to order and properly interpret antepartum tests of fetal well-being, to implement appropriate and timely man- agement protocols when fetal distress is present, and to expedite delivery and per- form cesarean section, when necessary.


The Failure To Order and Interpret Tests. There are several antepartum fetal tests that are available to assist the clini- cian in distinguishing the normal fetus from the hypoxic or compromised fetus.17 The standard of care calls for some type of antepartum fetal assessment when risk factors for uteroplacental insufficiency exist, or other specific clinical situations develop, such as: (1) decreased fetal move- ment, (2) hypertensive disorders, (3) diabetes, (4) oligohydramnios, (5) intrau- terine growth retardation, and (6)


17


For an interesting discussion of the contro- versies and benefits of antenatal fetal test- ing, see Barry S. Schifrin, Antenatal Fetal Assessment: Overview and Implications for Neurologic Injury and Routine Testing, 38 Clinical Obstet. Gynecol. 132 (1995).


post-dated pregnancy.18


Fetal movement


counting, the non-stress test (“NST”), the contraction stress test (“CST”), the oxy- tocin challenge test (“OCT”), the biophysical profile (“BPP”), ultrasound, and fetal scalp testing are all tests used to determine if the fetus has adequate re- serves to withstand the stress of labor, if the intrauterine environment is hostile and no longer capable of promoting nor- mal fetal growth and development, and if the fetus is under stress and would ben- efit from immediate delivery.


The Failure To Consult Or Refer. A physician cannot undertake the treat- ment of conditions that are beyond his/ her training and skill. It is axiomatic that a physician has a duty to refer the patient to a specialist, particularly when the pa- tient is in need of treatment beyond that which the physician can offer.19


For ex-


ample, with the increasing number of obstetricians who are board certified in maternal/fetal medicine, obstetricians may be liable for failing to refer a patient experiencing certain complications to a perinatologist.


The Failure to Perform a Timely Deliv- ery. The timing of cesarean delivery is a major issue in many birth trauma cases.20 Delay can contribute to adverse outcome and exacerbate the severity of brain in- jury.


Therefore, performing a timely


delivery to avoid the potential harm asso- ciated with asphyxia is a critical component of the standard of care. Elec- tronic fetal monitoring is one of the tools physicians use to detect fetal hypoxia at its earliest stage and to attempt to pre- vent the asphyxia that may result from prolonged and severe hypoxia.21


EFM


can help to attain this goal because hy- poxia and acidosis can produce changes in the fetal heart rate.


18


ACOG Technical Bulletin, Antepartum Fe- tal Surveillance, Number 188 (January, 1994).


19 20


Roberts v. Fleury, 987 F. Supp 940 (D. Md. 1997).


Some texts recognize that an emergency c- section should be performed within 30 min- utes of the time the decision to perform a C-section is made. See American College of Obstetricians and Gynecologists, American Academy of Pediatricians, Guidelines for Perinatal Care, at 80 (3d Ed. 1992). In some cases, however, 30 minutes may be too long to wait.


21


See Roger K. Freeman et. al., Fetal Heart Rate Monitoring, Baltimore, Williams & Wilkins (1991), at 110.


14 Trial Reporter Fall 2000


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48