The Failure to Secure Informed Consent. Physicians must disclose all material risks or dangers concerning a patient’s condi- tion or recommended treatment.22
The
patient’s right to know, or what some re- fer to as the Patient’s Bill of Rights, is a critical issue in the political arena, with legislation hopefully on the way.
This
public debate has made health care con- sumers – who also are prospective jurors – more intimately aware of the impor- tance of informed consent and the patient’s right to know. Thus, potential claims by patients that they relied on in- correct, or inadequate, or no information in consenting to or declining a particular treatment or course of action should not be overlooked. A few examples of poten- tial informed consent claims include:
Expedited Delivery for Fetal Distress. Obstetricians frequently argue that per- forming a cesarean section is riskier for the mother and increases the cost of medi- cal care.
If the physician relies on that
argument to excuse the delay in deliver- ing the fetus, an important question is whether the pregnant mother was given the option of selecting a cesarean sec- tion.23
If the physician was unable to confirm fetal well-being and there was a risk of injury to the fetus, the patient should have been given a choice with re- spect to the type of abdominal delivery. The parents should allege in their com- plaint that the defendants failed to obtain their informed consent to prolong the pregnancy and that they negligently failed to disclose all material information, in- cluding, but not limited to: (1) the risks to the mother and fetus of performing a cesarean delivery, (2) the probability of having a healthy fetus if the delivery was performed sooner as opposed to later, and (3) the risks and consequences associated with hypoxia and acidosis should a trial of labor and vaginal delivery be attempted.
Intrapartum Antibiotics. Approximately 7,600 cases of neonatal group B strepto- coccal (“GBS”) infection occur in newborns each year in the United States. A fetus who is exposed to GBS organisms in utero and develops early-onset infec-
22 23
Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977).
See Frank A. Chervenak and Laurence B. McCullough, An Ethically Justified Algo- rithm for Offering, Recommending, and Performing Cesarean Delivery and its Ap- plication in Managed Care Practice, 87 Obstet. Gynecol. 302 (1996).
Fall 2000 Trial Reporter 15
tion, can suffer serious complications, in- cluding brain damage, pneumonia, meningitis, and a chronic lung disease known as bronchopulmonary dysplasia. GBS is the leading bacterial organism re- sponsible for causing the death of newborns who develop early-onset infec- tion. Most newborns who develop early-onset GBS infection are born to mothers who have GBS bacteria in the vaginal or rectal areas at or around the time of labor and delivery. Since the risk of death is reduced when antibiotics are administered before delivery, the mother should be given the option of being screened for GBS colonization or receiv- ing prophylactic treatment prior to delivery regardless of whether specific risk factors for early-onset neonatal sepsis are present.
Vaginal Birth After Cesarean. “Once a cesarean, always a cesarean” was the general rule in obstetrical practice throughout the United States for decades. This meant that, once a woman delivered a child by cesarean section, she would deliver all subsequent children by cesar- ean section. The wisdom of this long-standing practice was questioned in the 1980’s, when some physicians began to express concern over rising cesarean delivery rates. At the same time, hospi- tals, health maintenance organizations and insurance companies began to search for ways to improve profitability and halt increasing medical costs. Vaginal Birth After Cesarean (“VBAC”) was viewed as a solution to both problems, prompting more doctors to actively encourage pa- tients to consider a trial of labor, as opposed to a repeat cesarean section. Whether these patients are being ad- equately informed about the medical risks before they agree to accept their
physician’s recommendation to attempt a VBAC, and whether they are being prop- erly managed during labor, are critical questions that should not be overlooked. VBAC can result in serious maternal com- plications and tragic consequences for the baby, including death and long-term neu- rologic impairment.24
PROXIMATE CAUSE
In some cases, there is compelling evi- dence of negligent obstetric or nursing care. The search for clues to determine the etiology and timing of permanent brain injury, which requires careful con- sideration of “clinical markers” that may establish a causal relationship between asphyxia and irreversible brain damage becomes the focal point of the expert tes- timony. The evaluation of a birth trauma case involving a neurologically damaged infant requires a retrospective analysis of many medical records including: prena- tal records, labor and delivery records, newborn records, follow-up medical records, neuroimaging reports and films, placental pathology reports and recut slides, blood gas studies, other laboratory results, and antepartum and intrapartum fetal monitor strips. To recover damages, a plaintiff must establish that it is more probable than not that the infant’s brain damage would not have occurred if the physician had com- plied with the standard of care.25
The (Continued on page 16) 24
See generally, Dov Apfel, Vaginal Birth Af- ter Cesarean: A Primer for the Attorney, Trial Magazine, February, 2000.
25
Franklin v. Gupta, 81 Md. App. 345, 567 A.2d 524, cert. Denied, 313 Md. 303 (1990).
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