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Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback on this column via email to
Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback on this column via email to firstname.lastname@example.org.
On October 7, 2008, a woman began prenatal treatment at the defendant clinic. Her expected date of delivery was calculated to be April 26, 2009. Her medical history was significant for having suffered from seizures (which were treated with medication) during adolescence. She had routine visits and normal ultrasounds through March 2009. On March 4, she reported having some slight light-brown vaginal discharge on 2 occasions. She was instructed that if she had bright red bleeding or black secretions to go directly to the labor and delivery department.
On March 17, the patient was at 34.2 weeks and reported having had an episode of dysuria. The fetus was noted to have positive movement and there was no evidence of any loss of fluid or vaginal bleeding. The fetal heart rate (FHR) was 140. The patient was to undergo weekly visits and to have a group B Streptococcus (GBS) test at 36 weeks. At this point, the record indicates that the patient’s care was transferred to the defendant ob/gyn’s private clinic, where she presented for the first time on March 23. At that time, the patient was complaining of a sore near her anus. The patient underwent an endocervical culture. This study was negative for chlamydia and gonorrhea. At the same visit, she also underwent a vaginal/rectal swab to rule out herpes simplex virus (HSV). The patient was to return in 1 week and to follow up on the HSV culture.
On March 25, ultrasound (U/S) revealed normal amniotic fluid volume with the placenta anterior in implantation, grade II in appearance and no placenta previa. The fetal growth appeared normal and the anatomy details were normal. The infant had a regular fetal heart rate of 155. The gestational age was 34 weeks, 4 days.
The report on the HSV and GBS cultures indicated that the specimen taken on March 23 was “negative to date" and that the status was “preliminary.” According to the defendant ob/gyn, both these forms were printed from the hospital computer, to which she had access in her office. The vaginal/rectal swab culture was reported as positive for “herpes simplex virus, Type II, isolated” on April 1. On the morning of April 2, the patient presented to the “triage room” and stated that she had fallen in the subway (although she had not fallen on her abdomen). At that visit, the patient reported a surgical history of polypectomy cone biopsy but indicated that her Pap smears had been normal since then. She was found to be 3- to 4-cm dilated and was given intravenous (IV) hydration, re-evaluated, and discharged home with labor precautions and instructions to follow up with the defendant ob/gyn “on Monday.” There is no reference in the record to the positive culture results.
On the following day, the patient came to the triage area with complaints of a small amount of spotting. She also complained of the fetus having “jerky movement.” A vaginal examination was performed by the defendant ob/gyn and the patient was noted to be 4-cm dilated and 90% effaced. Furthermore, the FHR was normal at 150, with positive accelerations, no decelerations, and runs of marked variability. The patient was noted to have irregular contractions, and an U/S indicated the amniotic fluid index to be normal at 10 and the fetus in vertex position with an anterior placenta. The fetus was cephalic. After being monitored, the patient was sent home with instructions. Again, there is no mention of the positive HSV culture results in these records.
The defendant ob/gyn saw the patient on April 6 and April 13. Her records contained the final report regarding the HSV culture, but she did not convey the results of the final culture to the patient, nor did she start her on any prophylactic treatment for herpes on either of those visits.
At around 2 am on April 23, the patient presented to the triage area in active labor. She denied any history of sexually transmitted infection (STI). A vaginal examination revealed that the patient was fully dilated with bulging membranes and that the fetus was at +1 station. The patient was immediately transferred to a labor room, accompanied by a resident and an attending physician. The patient’s membranes ruptured at or around the time of transfer and the fluid was noted to be clear. At 2:27 am, the infant was delivered with Apgar scores of 9 and 9. Following the delivery the attending physician wrote the following note:
“HSV positive – pt. did not know the results of this test – she stated during our rapid history in triage before delivery that she had no STD. After delivery, I was reviewing her labs and she was HSV 2 positive. She states she was told by Defendant OB she was HSV 2 negative. She states she may have had a lesion around her anus. I informed the patient of the risk of pediatric herpes, meningitis/encephalitis with an active lesion. If we had known that she had an active lesion, she would have been advised for cesarean section, but, now the baby was possibly exposed to the virus. Pediatrics was informed.”
According to the neonatal attending physician’s admission note, the infant was transferred to the NICU because the mother possibly had an active herpes lesion at the time of delivery. He further indicated that “on 03/23, there was a lesion noted near her anus, which grew out HSV Type II. She had no knowledge of having had a herpes infection.”
After delivery, the infant was noted to be vigorous and without any lesions. When admitted to the neonatal intensive care unit (NICU), the infant was active and pink and in no acute distress. The infant was started on acyclovir and cultures were ordered on April 23. He had an active sepsis workup and a lumbar puncture. The infant’s neurological exam was appropriate for his gestational age. The records indicate that the rectum, nose, and umbilicus cultures were negative for HSV. In addition, on April 25, blood, urine, and cerebrospinal fluid (CSF) cultures were also reported to be normal. As of April 27, the infant was noted to be asymptomatic and was pink and well saturated on room air. The infant had no episodes of apnea or bradycardia. He was feeding well. The plan was to discharge the infant home with close follow-up by his pediatrician, who was to perform weekly HSV surface cultures (conjunctival, anal, and nasal) until the infant was 1 month old. The infant was discharged on April 28.
On May 5, all of the infant’s cultures were again negative. On May 15, the cultures were repeated and both the conjunctival and rectal swabs were reported to be negative. However, the nasal culture was positive for “herpes simplex virus, Type II, isolated.” As a result, the pediatrician referred the infant to an emergency room on May 15. Following an evaluation that indicated the infant was having no problems, he was admitted to the hospital for IV acyclovir. He remained in the hospital until May 31. During that stay, a sepsis work-up was performed and all cultures, including CSF, were normal. At the time of discharge, the family was instructed to return if the infant’s fever rose above 100.4 F or if he had a rash, vomiting, diarrhea, decreased oral intake, decreased urine output, or any other problems.
On June 2, the infant was treated in the pediatric clinic and was found to be “clinically well, with no skin lesions, no fevers, eating very well.” The infant’s head circumference was 15.05 in. He was described as very alert, active, and vigorous. His extraocular muscle was intact bilaterally and he was normal cephalically. The mother said that he cried just before feeding. At the next visit on July 7, the parents “denied problems.” At this point, the infant was 2 months old and physical examination demonstrated a “well baby,” with no evidence of any skin lesions, fevers, rashes, or vesicles.
NEXT: ALLEGED INJURIES >>
The plaintiff alleged that as a result of the defendant’s negligence, the infant-plaintiff suffered from HSV type II; underwent multiple lumbar procedures; received IV fluids and an IV antiviral regime; experienced (or would experience) excruciating pain, swelling, inflammation, marked tenderness, fatigue, blanching, discoloration, blisters, redness, severe disfigurement, development of a chronic and permanent disease that will require administration of medication for the duration of his life, unsightly appearance, discomfort, interference of future sexual encounters and relations, wound injections, scarring, severe and permanent disability, post-traumatic depression, embarrassment, self-consciousness, inferiority complex, mental distress, anxiety, anger, irritability, tension, and loss of self-esteem.
We retained an expert in pediatric infectious diseases, who expressed the opinion that the failure to read the final culture report diagnosing the mother with Type II HSV was a departure by the defendant ob/gyn. It was also a departure not to advise the mother that she had Type II HSV and to prescribe treatment. It is not uncommon for the preliminary results of the culture to be negative and the final results to be positive, since the culture can take up to 8 days. The defendant should have scheduled a cesarean delivery in order to prevent the HSV from being spread to the infant. While ob/gyns are taught to prescribe Valtrex to the mother during pregnancy to prevent outbreaks, this is not proven to prevent transmission of HSV to the infant. The only true “prevention” is caesarean delivery.
While the child was HSV-positive, it does not necessarily mean that he suffered from herpes. Four scenarios could occur: First, the child could never develop HSV; second, the child could have a skin, eye, and/or mouth (SEM) occurrence; third, the child could develop encephalitis; and fourth, the child could develop disseminated disease. Because this child was not symptomatic in the first few days of life, he will not have genital herpes or central nervous system or disseminated herpes as an adult. The expert felt, given the results of testing, that at most the child might suffer from SEM occurrences in the future.
The defendant ob/gyn said that she never saw the word “preliminary” on the report and as a result did not look for any other report in her file. The facility’s policy was that the lab would fax “final” results to the ob/gyn’s office. It was the responsibility of her medical assistant to log in the results and then place them in the patient’s record.
NEXT: RESOLUTION AND ANALYSIS >>
The plaintiff’s initial demand was $1.75 million. At a later settlement conference, that demand was lowered to $950,000. Although the defendants were interested in early resolution in lieu of depositions given the fairly clear liability in the case, we were not interested in negotiating at those numbers because there was little likelihood the infant would suffer from much more than fever blisters in the future. After a few more settlement conferences and continued negotiations between the parties, with the assistance of the Court, the case ultimately settled for $200,000.
I frequently stress the importance of documentation to the defense of malpractice litigation. In this case, documentation played a crucial role in 2 distinct ways: the defendant physician’s failure to be aware of test results that her office had received and the hospital staff’s decision to document that failure in the patient’s chart. These incidents rendered this case untenable to defend through trial. The physician’s oversight was obvious, and while it may have been innocent, it was indefensible.
Any time a physician orders testing it is his or her responsibility to follow up on it, no matter the “office protocol.” The attending physician had every right to protect herself by documenting the manner in which she discovered the mother was HSV-positive, but she could have noted the series of events without throwing the defendant ob/gyn under the proverbial bus. That note eliminated any other less damning explanation. Fortunately for the defendants and the infant, the oversight did not have severe (if any) consequences, so the opposing parties were able to resolve the case quickly and reasonably.