Mother Sues NP for Failing to Provide Additional Ultrasounds after 8 Weeks

Article Outline

• Analysis
• Why Did This Case Settle for $500,000?
• Should Clinicians Order More Ultrasounds to Avoid a Similar Outcome?
• Copyright

• 
  • View Large Image
  • Download to PowerPoint

Case: A 29-year-old pregnant woman visited a health center and was seen by a nurse practitioner (NP). This was the woman's third pregnancy. She had a family history of diabetes. The NP ordered an ultrasound at 8 weeks, which revealed no abnormalities. The mother requested additional ultrasound examinations, but the NP said there was no indication for more. The NP informed the mother of a business, Fetal Focus, that offered a fetal picture for about $300. The mother visited the business, and the company sent a copy of the ultrasound report to the clinic, with a note saying Fetal Focus would notify the clinic of any abnormalities.

The baby was born with Young-Simpson syndrome, a rare congenital disorder that can include hypothyroidism and heart defects. The mother sued the health clinic, claiming she would have terminated the pregnancy if she had known about the congenital defects. She claimed that the ultrasound performed by Fetal Focus showed a hand with six fingers. She also claimed that the NP failed to consult with a physician regarding the pregnancy. The NP claimed that there was no clinical indication for a second ultrasound and that no ultrasound existed that showed a baby with six fingers. The parties agreed to a $500,000 settlement. This case was reported in Medical Malpractice Verdicts, Settlements and Experts (L. Laska, editor), January 2009.

Back to Article Outline

Analysis 

There aren't enough details in the case report to really understand what happened here. It seems that the mother wanted to be assured that the baby was without serious abnormalities, or, if serious abnormalities could be identified, wanted to terminate. However, there is no evidence that an ultrasound could have identified the baby's syndrome. The NP was within the standard of care to perform ultrasound at 8 weeks and not thereafter, given the lack of clinical indication. Prenatal ultrasounds are not standard of care, lacking a clinical indication. A family history of diabetes is not an indication for ultrasound. There is no indication from the facts given that the baby actually had six fingers. Having extra digits is not one of the elements of Young-Simpson syndrome. That syndrome is characterized by facial and heart abnormalities, congenital hypothyroidism, growth and developmental retardation, blepharophimosis, epicanthus inversus, cryptorchidism in males, and hypotonia.

Here is what ultrasound can do in the first trimester:

In the second trimester, ultrasound can:

In the third trimester, ultrasound can:

There are financial reasons why a clinician may not feel free to offer multiple ultrasounds. Here is a statement on the indications for ordering first-trimester ultrasound from the American College of Obstetrics and Gynecology (ACOG) website:

“In response to problems experienced with some third party payers regarding reimbursement for first trimester obstetric ultrasounds, the Committee on Coding and Nomenclature will include the following statement in the 2008 ACOG Ob/Gyn Coding Manual: Components of Correct Procedural Coding: Certain clinical indications may require one or more ultrasound evaluations in the first trimester of pregnancy. Many global obstetrical packages place a limit on the number of obstetric ultrasounds that a patient may receive as a part of her routine care. It is inappropriate for third party payers to deny obstetrical ultrasound coverage because a patient already had a clinically indicated ultrasound evaluation in her first trimester. Clinical examples include but are not limited to first-trimester bleeding, known or suspected ectopic pregnancy, pelvic pain, ovarian cysts, uncertain dating, gestational trophoblastic disease, miscarriage (threatened, missed, incomplete or complete), Müllerian anomalies, risk of multiple gestation from ovulation induction, or history of recurrent pregnancy loss.”

The mother in this case had none of the conditions identified in this statement. If the NP had ordered additional ultrasounds, the rationale would have been because the mother asked.

Back to Article Outline

Why Did This Case Settle for $500,000? 

From the facts provided, it is not clear why the defendants agreed to settle for this large amount. In order for a plaintiff (injured patient) to win a malpractice lawsuit, the plaintiff must prove four elements: duty of care, breach of the standard of care, injury, and causal relationship between the breach of the standard of care and the injury. Here, there was a duty of care and a bad outcome, but there was no breach in the standard of care and therefore no causal relationship. There is no reason to believe that additional ultrasounds would have identified the baby's abnormalities or would have identified the abnormalities in time for a therapeutic abortion. However, it is possible that the plaintiff's attorneys convinced the defendants that a jury would accept an argument that a radiologist could have identified the fetus' facial or cardiac abnormalities in a first or second trimester ultrasound. The plaintiff may have argued that it was unwise to refer to Fetal Focus rather than a radiologist.

The plaintiff complained that the NP failed to consult with a physician, but under the facts of the situation, there was no reason why the NP should have consulted with a physician. The state where this lawsuit took place is not identified in the case report, but all of the expert witnesses were from California, so it is probably safe to assume that it is a California case. California's law authorizing NP practice calls for “standardized procedures,” and the settlement may be attributable to a problem with the procedures or the NP's compliance with the procedures.

Back to Article Outline

Should Clinicians Order More Ultrasounds to Avoid a Similar Outcome? 

This question is difficult to answer. If there is no clinical indication for a test, generally a clinician should not order one. However, if a patient is persistent about asking for a test, the clinician should strongly consider ordering it. A patient who requests tests, is turned down, and is later diagnosed with a problem that he or she thinks could have been detected earlier is going to be angry and likely to sue.