Malpractice Cause of Wrongful Birth

An Oklahoma federal district court recently found substandard medical care by a doctor and nurse caused the wrongful birth of a severely mentally retarded boy. In Duplan v. United States of America, the Court found that a physician and a nurse were both negligent in their prenatal care of Mrs. Duplan at the OB/GYN clinic at Tinker Air Force Base. The malpractice action revolved around a July, 1992 laboratory test for cytomegalovirus (CMV). While a CMV infection is harmless to the vast majority of people, Mrs. Duplan knew that if contracted by a woman during pregnancy, it could cause serious birth defects. Because Mrs. Duplan worked at a child day care center, she knew she was at special risk of becoming infected with CMV and asked the clinic to test her for CMV infection.

After many requests, Mrs. Duplan was finally tested for CMV. The test suggested that Mrs. Duplan had an ongoing primary CMV infection in the first trimester of her pregnancy. This carries the highest risk that fetal infection will result in the baby being born with serious birth defects. Despite the actual test results, she was informed by a clinic nurse that she was immune to CMV. The substandard care continued when the doctor failed to discuss the CMV infection with the Duplans and did not keep track of whether the virus was damaging their unborn baby. The Duplans testified that they would have had an abortion had they known there was an active infection that presented a high risk of birth defects. In its opinion, the Court takes special note that the case against the United States was not based on the notion that the doctor had a legal duty to discuss abortion with Mrs. Duplan. Rather, the Court based its decision on its finding that the doctor breached a legal duty to provide Mrs. Duplan "with sufficient information regarding the risks to her fetus to enable her to make an intelligent decision whether she should consider abortion as anoption.

Standard of Care. In deciding this case, the Court relied on the Oklahoma statute which requires a health care provider to treat patients in accordance with national standards of ordinary care. The Court found that the doctor was required to: (1) understand the clinical implications of the CMV test results; (2) personally counsel the patient regarding the clinical implications of the CMV test results and the statistical probability that her baby would be both infected with and affected by CMV; (3) personally counsel the patient regarding referral to a physician specializing in the management and care of first trimester primary CMV infection; (4) treat the mother's case as a high risk pregnancy by: (a) monitoring ultrasound results for clinical evidence of fetal infection with CMV and informing the patient of the results within the time period provided by Oklahoma law for legal abortions so that the patient could make intelligent choices about her course of treatment; (b) placing notations in the patient's medical records to alert other medical personnel of the possibility the fetus was infected with CMV; and (c) investigating the availability of other medical tests which might provide information to the patient that would assist her in determining what course of treatment she would wish to pursue; and (5) understand the implications of finding oligohydramnios on the patient's twenty-third week ultrasound and counsel her regarding the effect of such a finding on the statistical probability that the fetus was both infected with and affected by CMV.

As to the nurse, the Court found that "the national standards of ordinary care provided that a nurse must refrain from interpreting medical test results for a patient." However, when a nurse gives interpretive information about a medical test result, the national standards of ordinary care required the nurse to give accurate information. Accordingly, the Court found that the nurse breached her duty to act within the national standards of care.