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1251 Perspective L%: 1 Legal Aspects of Obstetric Sonography Alexander J. Macones,13 Anna S. Lev-Toaff,1 George A. Macones,4 James W. Jaffe,1 and Valerie B. Williams2 Whereas diagnosis was the radiologist’s sole concern in Next, damages to the plaintiff must have been incurred. the past, the current political and social milieu demands an Finally, the breach must be the proximate cause (legal cause) understanding of ethical, moral, and legal issues that are now and the cause-in-fact (actual cause) of the damages. intimately related to daily practice. This requirement has been Historically, no action could be brought by or on behalf of further magnified by the boom in newer imaging techniques a fetus for damages that occurred prenatally. Courts did not and the increase in public awareness about imaging and recognize the fetus as a separate living or legal entity; it was medicolegal issues. Sonogmaphy, in particular, is an area in considered merely a part of the mother. Concern oven fraud- which technologic innovation has become the standard of ulent claims, fear of suits brought by a child against the came in a relatively short time. Clinicians now rely heavily on mother, and difficulty in showing proximate causation justified sonogmaphy to assess fetal growth and development. The link the courts’ rulings on a public-policy basis . Slowly, courts of new technology (sonogmaphy) and a high-risk specialty began to create a right to sue on behalf of the dead fetus (obstetrics) has increased the potential for significant liability under states’ survival statutes or wrongful-death statutes. [1, 2]. Currently, every American jurisdiction recognizes possible The Roe v. Wade decision has added further import to liability for prenatal injuries. obstetric sonogmaphy. This landmark case held that a woman Courts have based such claims solely on the strict definition has the right to terminate her pregnancy until the end of the of negligence. Plaintiffs claim that the physician’s act on failure second trimester on the basis of hen right to privacy . The to act has caused them injury. These misdeeds or nondeeds decision to abort sometimes is made primarily on the basis of include failed sterilization procedures, failure to perform di- a sonogmaphic diagnosis of fetal anomalies. Lapses in this agnostic tests, laboratory errors, missed diagnosis of preg- assessment result in multiple legal actions and a variety of nancy, and failed abortion. Many courts, however, have been damages. These are grouped under the general theory of bothered by the tenuous link between the negligence of the tort. It is essential that all those who perform sonogmaphic physician and the ensuing damages [6, 7]. One cannot argue examinations be familiar with these concepts, because more that the radiologist caused the fetal anomaly that was over- than 80% of sonogmaphy-related litigation arises from obstet- looked. These are legally difficult concepts grouped under the ric cases . category of preconception torts. However, when the madiolo- Tort litigation attempts to compensate one whose interests gist negligently performs sonography, conception has already have been harmed. A plaintiff must prove several elements occurred. Unlike cases involving failed sterilization or defective by a preponderance of the evidence. First, the defendant genetic counseling, damages have been incurred by a living must owe the plaintiff a legal duty that has been breached. being with legal rights-the fetus. Received May 30, 1989; accepted after revision July 18, 1989. I Department of Diagnostic Imaging, Temple University Hospital, Broad and Ontario Sts., Philadelphia, PA 19140. 2 Temple University School of Law, Philadelphia, PA 19140. 3 Present address: Department of Diagnostic imaging (M5206), Hahnemann University Hospital, Broad and Vine Sts., Philadelphia, PA 19102. Address reprint requests to A. J. Macones. 4 Department of Obstetrics and Gynecology, Pennsylvania Hospital, 8th and Spruce Sts., Philadelphia, PA 19106. AJR 153:1251-1254, December 1989 0361-803X/89/1536-1251 C American Roentgen Ray Society 1252 MACONES ET AL. AJR:153, December 1989 Wrongful Pregnancy pregnancy. This “openness to abortion” is exceedingly difficult to prove. In some of the wrongful pregnancy cases, the act Claims of wrongful pregnancy arise most commonly after a failed sterilization procedure on unsuccessful abortion that of attempting to obtain sterilization on an abortion is, in itself, definitive proof of such openness. This, however, does not has resulted in the birth of a normal child. These claims are exist in most wrongful-birth cases or in wrongful-pregnancy brought by the parent(s), who allege that the negligence of the physician has resulted in the birth of an unplanned, albeit claims in which a pregnancy has been overlooked. Therefore, healthy, child . The application to obstetric sonogmaphy is a significant burden of proof exists on the plaintiff’s part. clean. If a pregnancy (on a twin pregnancy) is overlooked, the Nonetheless, a vast majority of jurisdictions recognize radiologist may be liable under this theory, provided the these claims, awarding the cost of pregnancy, extraordinary medical costs, and, occasionally, costs of child-rearing. At couple would have terminated the pregnancy with the correct this time, however, courts are split as to whether parents information before the third trimester. Wrongful pregnancy has gained widespread acceptance in American jurisdictions also may recover for associated mental distress [1 0]. A few . courts have denied medical costs if mental distress awards The damages awarded for these claims have been incon- are granted . Finally, a small minority of states have denied sistent [1 0]. In the earliest cases (and some recent ones as these actions entirely via statutes, possibly representing a new trend in jurisprudence [22, 23]. well) monetary compensation was denied under the “bless- ing’s mule,” whereby the birth of a child is viewed as “God’s Wrongful Life gift” [1 1 12] to the parents. Recently, , a few courts have Wrongful-life claims are closely related to those of wrongful followed the “burden rule,” asserting that an unwanted child birth, but are broughtby the defective child and not by the is an unnecessary stress and, as such, the parents should be parents. These claims have met with fan less judicial and awarded costs of pregnancy, emotional distress, and costs legislative acceptance, primarily because of public-policy con- of child-nearing [1 3, 14]. One court even awarded general damages to the parents, not specifying the exact breakdown, cems and difficulty in accurately determining damages. The but awarding an amount fan in excess of medical costs, cases that created this concept did not involve medical neg- possibly to compensate for intangible emotional injuries . ligence. Instead, a child sued his father for having been born into an imperfect life, that is, illegitimate. Although the court Virtually all courts, however, deny costs of child-rearing, but recognized that a child has a right to be born “unencumbered” award pregnancy and childbirth costs in an attempt to inte- grate the cost-benefit ratio [1 6-1 9]. In most jurisdictions, this and, as such, recognized the validity of the cause of action, is the current limit of liability to a radiologist for missing a damages were not awarded. They believed the public-policy pregnancy. As a missed twin involves no additional pregnancy concerns were too far-reaching, and, as such, should be left to the legislature . Similar claims are now referred to as and delivery costs, damages are not likely to be awarded. “dissatisfied life” [1 0, 25]. The so-called diminished life suits, the second category Wrongful Birth of wrongful life, involve impaired infants . These claims, Wrongful-birth claims are also brought by the parents and often brought simultaneously with wrongful-birth claims, are are similar to those of wrongful pregnancy with one exception: brought by the child . It is alleged that, if not for the the infant is born defective. The parents do not claim that the negligence of the physician, the defective child would never defect was caused by the physician’s negligence. Rather, have been born . Once again, the physician is not alleged because the parents were not given the option to terminate to have caused the anomaly; it is the life itselfthat is construed the pregnancy, it is the birth itself that is wrongful . as a burden . These decisions have received a great deal These actions usually arise from negligent genetic coun- of press because of the large amount of damages sought. seling. The parents assert that they were not informed that A great majority of American courts (and British, as well) the risk of having an afflicted child existed, and if they had are bothered by a complex ethical and philosophical question: been so informed, they would have opted for an abortion. Is an impaired existence better than no existence at all? Most One recent case was brought by the parents of a child with courts have responded yes, relying on various measonings autosomal recessive polycystic kidney disease. When their . Some base this determination solely on the “sanctity of first child died from the disease, they were advised wrongly human life” at any level . As such, birth can never be an that theme was virtually no risk of having a second affected injury in the eyes of the law. This concept has been somewhat child. A wrongful-birth claim was successfully brought . A undermined by the legalization of abortion, the acceptance of case with even wider ramifications involved the lack of coun- “do not resuscitate” orders in terminally ill patients, and the seling about the efficacy tests and the of prenatal diagnostic rights of patients to discontinue medical treatment under increased risk of Down syndrome of a 37-year- in the fetus certain circumstances. In some cases, it has been decided old woman. When the baby was born defective, the parents that theme may be times when the cost-benefit ratio of a life sued and were awarded damages . is so imbalanced that nonlife becomes preferable . Other One basic purpose of the fetal survey is to exclude fetal courts choose not to deal with the philosophical issue. In- malformations. When such anomalies are diagnosable but stead, they rely on the inability to determine the amount of overlooked on examination, claims of wrongful birth may arise damages accurately to deny recovery. What compensation is against the radiologist. The parents must show that had they appropriate for one who claims he would rather not have known of the deformity, they would have terminated the been born? Clearly, the formula should weigh the value of AJR:153, December1989 LEGAL ASPECTS OF OBSTETRIC SONOGRAPHY 1253 deformed existence against the value of nonexistence [201. As these innovative radical therapies become more routine, a As one court stated, this “is a mystery more properly to be boom in litigation may ensue. left to the philosophers and the theologians” . The courts also examine public-policy concerns, to assess Wrongful Death whether it would be of benefit on detrimental to society as a When negligence has resulted in death, claims of wrongful whole to mule one way or the other. Some courts fear that an award of damages for wrongful life would lead to an onslaught death may ensue. Early statutory law did not create a cause of litigation. Also, if these claims could be brought against of action on behalf of a fetus [2, 5]. However, since Roe v. Wade, the fetus fatally injured in utemo may make a wrongful- physicians, they might also be brought against mothers who chose not to abort defective fetuses. Ultimately, some fear death claim provided it was viable at the time of insult . Courts are largely undecided about damages. Some will compulsory abortions for mothers of afflicted fetuses and the practice of defensive medicine to avoid wrongful-life suits award medical and funeral costs and, occasionally, even pain . Nonetheless, a few courts have accepted these wrong- and suffering. Most deny claims for loss of earnings as these ful-life claims. One early case, Curlender v. Bioscience Labo- are too difficult to assess . A few jurisdictions have ratories , involved laboratory error in Tay Sachs screening. enacted statutes to prevent these actions entirely . If an After the parents were told that they were not carriers, an anomaly is erroneously diagnosed when in fact the fetus is afflicted child was born. The court summarily ignored the normal, and the parents choose an elective abortion, a wrong- social and philosophical arguments in ruling in favor of the ful-death claim may arise. If sonographically guided therapy is unsuccessful on leads to the death of the fetus, the nadiol- child. Even more curious, this same court felt that parents should be liable for a defective child if they refused abortion ogist may be liable. . (Later the state of this jurisdiction, California, passed a statute outlawing wrongful-life claims brought against parents Agency Law .) In Turpin v. Sortini , the court awarded only special It is essential that all practitioners of sonography under- damages for the child, denying general damages for emotional stand the relationship between the radiologist (physician) and distress and impaired childhood. They asserted that impaired the sonographer (technologist). In the private office, the tech- life was not always preferable to nonlife, and that public policy nologist is an agent, working for and under the control and dictated the importance of the individual deciding the value of direct supervision of the physician. Any reasonable act com- his own life . Thus, in jurisdictions permitting wrongful-life miffed by the technologist within the scope of employment claims, damages usually are limited to the more tangible costs yields concomitant liability for the physician, under the “bom- of pregnancy and extraordinary medical costs during infancy mowed servant” rule. For example, if the technologist takes a and childhood: the less tangible general damages for emo- patient hostage, the physician is not likely to be liable (unless tional distress or impaired childhood are denied as being too the physician had prior knowledge of the technologist’s pre- difficult to assess [28, 32]. Presently, only high courts in disposition) because the action is outside the scope of em- California , Washington , and New Jersey  and ployment. On the other hand, if a technologist overlooks an intermediate courts in Colorado  recognize these claims anomaly, the physician would be found liable as this omission . In fact, many states are now passing legislation to pne- occurred within the scope of employment. Many physicians dude these actions entirely: Pennsylvania was the most me- do not mescan patients or mescan only selectively after the cent in April 1 988 . technologist’s examination. Physicians are as liable for mis- The implications for the radiologist are in many ways similar diagnosis or nondiagnosis in these cases as they would be if to those of wrongful birth. If an anomaly is diagnosable on they had scanned the patient themselves [35, 36]. In the sonognaphy but is overlooked, and the parents would have hospital-based practice, the radiologist would probably shame aborted the fetus with this knowledge, claims for wrongful life liability with the hospital depending on the degree of technol- (in addition to wrongful birth) may arise, provided these are ogist supervision. not precluded by legislation. Wrongful-life claims may also arise in another situation. Recent technologic advances have given physicians the ability Recommendations to perform interventional procedures and invasive testing Seven suggestions aimed at improving protection from (including amniocentesis and chorionic villus sampling) in potential claims related to obstetric sonography follow. These utero. of shunts under sonographic Insertion guidance into recommendations are by no means exhaustive; they repro- the hydrocephalic or hydmonephrotic fetus may improve or sent a baseline of prudent practice. prolong life, but may also result in significant additional med- 1 . Follow the American College of Radiology (ACR) guide- ical expenses throughout life. If the procedure is successful, lines for fetal surveys. (These guidelines are printed on pp. the fetus may claim, “But for the procedure, I would never 1 256-1 257.) When a malpractice claim of any type arises, it have been born,” and yield a wrongful-life claim. Wrongful- must be shown that the physician deviated from the standard birth claims are less likely in this situation because informed of came. The courts originally looked to the community in consent is obtained from the parents before the procedure which the physician practiced to determine this standard. [35, 36]. Since the Canterbury v. Spence  decision in Presently, the determination is made on the basis of a nation- 1 972, patients must be informed of the risks, benefits, and wide level of minimal acceptable performance, often deter- alternatives to the intervention in order to yield a valid consent. mined by professional society guidelines. In 1 985, the ACR approved such recommendations for fetal surveys, detailing in the innovative legal theories of wrongful pregnancy, wrong- the structures that should be visualized during each trimester ful birth, and wrongful claims may arise during the life. These . Although the guidelines are not conclusive, noncompli- routine fetal survey on in the course of sonographically guided ance represents strong evidence of deviation from the stan- interventions on invasive tests. damd of came and bodes poorly for the radiologist in a mal- practice action. REFERENCES 2. If an abnormality is identified or suspected, obtain a 1 . Bundy AL. Obstetrical ultrasound. In: Bundy AL, ed. Radiology and the second opinion and/or a follow-up study. Rescanning by an law. Rockville, MD: Aspen, 1985:159-178 unbiased second radiologist is helpful to confirm a possible 2. Bundy AL, Jones TB. Guidelines for obstetrical scanning and reporting: fetal anomaly. Although this may seem excessive, it is helpful the legal necessity. J Ultrasound Med 1985;4:483-484 3. Roev. Wade,410U.S. 113 (1973) to minimize the risk of an “imagined” anomaly resulting in an 4. Sanders AC. Update on the legal survey. Presented at meeting of the elective abortion and a wrongful-death suit. Any question American Institute of (Jtrasound in Medicine, Las Vegas, NV, 1986 about fetal structures on measurements, amniotic fluid, and 5. Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Amer. Reports placental or fetal position should be confirmed on a follow-up 242(1884) study or by a second opinion preferably before submission of 6. Fleisher LD. Wrongful births-when is there liability for prenatal injury? Am JDis Child 1987;141:1260-1265 a final report. 7. Shaw MW. To be or not to be? That is the question. Am J Hum Genet 3. Detail which fetal structures were normal in a written 1984;36: 1-9 record. Merely stating “the fetus appears normal” is made- 8. Rivera v. State, 94 Misc. 2d157, 404 N.Y.S. 2d950 (1978) quate. Each fetal structure and its measurements should be 9. Schmidt SM. Wrongful life. JAMA 1983;250:2209-2210 10. Pelias MZ. Torts of wrongful birth and wrongful life-a review. Am J Med noted in the written record. This is strong evidence of the Genet 1980;25:71-80 content and quality of the examination and also aids the 1 1 . Christensen v. Thornby, 192 Minn. 123, 255 NW. 620(1934) radiologist’s memory if called to testify. Also note which 12. Terrell v. Garcia, 496 SW. 2d 124 (rex. Civ. App. 1973), cert. denied, 415 structures were identified suboptimally. U.S. 927(1974) 4. Be familiar with yourjurisdiction’s case law and legisla- 13. Bowman v. Davis, 48 Ohio State Reports 2d 41 , 2 Ohio Opinions 3d 133, 356 N.E. 2d 496 (1976) tion. This basic knowledge is acquired easily from newspapers 14. Greenfield VA. Wrongful births: what is the damage? JAMA 1982;248: and local bar associations. It gives the radiologist an edge in 926-927 dealing with counsel and prospective litigants should the need 15. Jones v. Mallnowski, 299 Md. 257, 473 A. 2d 429(1984) arise. 16. Flowers v. District of Columbia, 478 A. 2d 1073 (D.C. 1984) 17. Morse v. Soffer, 101 AD. 2d 856, 476 N.Y.S. 2d 170(1984) 5. Rescan patients thoroughly after the technologist’s ox- 18. Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463, 27 A.L.R. 3d amination. The physician is liable for any reasonable activity 884(1967) of the technologist performed in the scope of employment, 19. Troppi v. Scarf, 31 Cal. Sup. Ct. 3d 220, 182 Cal. Rptr. 337, 643 P2d 954 under the theory of agency law. The physician is thus respon- (1982) sible whether or not the physician personally has scanned the 20. Park v. Chessin, 60 N.Y. 2d 80, 400 N.Y.S. 2d 110(1977) 21 . Becker v. Schwartz, 60 AD. 2d 587, 400 N.Y. 2d 1 19 (1977). Modified, patient. Double-checking the technologist’s examination is 46 N.Y. 2d 401, 413 N.Y.S. 2d 895, 386 N.E. 2d 807(1978) important to minimize potential liability. 22. Hickman v. Group Health Plan, 396 NW. 2d 10 (Minn 1986). Constitution- 6. Give prompt verbal and written reports, especially if an ality of Minn. Stat. 145.424 Subdivision 2(1984) abnormality is discovered. Prompt and precise communica- 23. 42 Pa. C.S.A. 8305 tion between radiologist and clinician is essential for optimal 24. Zepeda V. Zepeda, 41 Ill. App. 2d 240, 190 N.E. 2d 849 (1963), cert. denied, 379 U.S. 945(1984) care of patients. Reporting should always be prompt; this 25. Furrow ER. Impaired children and tort remedies: the emergence of a becomes even more important in the event of an abnormality, consensus. Law, Medicine, and Health Care 1983;10:148-154 because the patient may opt to abort. A significant delay may 26. Uu AN. Wrongful life: some of the problems. J Med Ethics 1987;13: result in claims for wrongful birth and wrongful life if the 69-73 27. Botkin JR. The legal concept of wrongful life. JAMA 1988;259(10): patient is denied the opportunity for elective abortion. 1541 -1 545 7. Document the study. The best defense to any malprac- 28. Turpin v. Sortini, 31 Cal. 3d 220, 182 Cal. Aptr. 337, 643 P2d 94 (1982) tice action is documentation. If the study is normal, repre- 29. Gleitman v. Cosgrove, 49 N.J. 22, 227 A2d 689(1967) sentative images of the normal fetal structures, fetal position, 30. Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 81 1 , 165 Cal. placenta, and amniotic fluid volume should be taken. Video is Rptr. 447(1980) 31 . Cal. Civ. Code 43.6 (West 1983) an excellent permanent record of fetal heart activity. If the 32. Harbeson v. Parke-Davis Inc., 98 Wash. 2d 460, 656 P2d 483(1983) results of the study are abnormal, obtain multiple images of 33. Procanik v. Cub, 97 N.J. 339, 478 A2d 755(1984) the abnormality. Note when and to whom written and verbal 34. Continental Casualty Co. v. Empire Casualty Co., 713 P2d 384 (Cob. App. reports were delivered. 1985) 35. James AE, FleiSCher AC, Thieme G, et al. Diagnostic ultrasonography: certain legal considerations. J Ultrasound Med 1985;4:427-431 36. James AE, Bundy AL, Fleischer AC, et al. Legal aspects of diagnostic Conclusions sonography. Semin US, CT, MR 1985;6:207-215 The changing social climate dictates that every physician 37. Canterbury v. Spence, 464 F2d 772 (D.C. Civ.), cert. denied, 409 U.S. 1064(1972) be familiar with current legal and ethical issues. The radiologist 38. Jones v. Karraker, 109 III. App. 3d 247, 440 N.E. 2d 420(1982) who performs obstetric sonography is no exception. Appli- 39. Leopold GR. Antepartum obstethcal ultrasound examination guidelines. J cation of basic negligence law to the unborn child has resulted Ultrasound Med 1986;5:241-242 The reader’s attention is directed to the commentary on this article, which appears on the following pages.
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