State Law and Federal Law

Another area of potential confusion is the differences between state laws and federal laws. Medicine is generally regulated at the state level, and consequently most clinicians find themselves in state court subjected to state laws. Significant restrictions exist that keep most cases out of federal court. A civil rights case, a dispute involving the Americans with Disabilities Act (ADA), or a malpractice case that occurred at a military hospital are three examples of cases that could be adjudicated in federal court. Unless a case meets narrow criteria to qualify for federal adjudication, most legal disputes involving perinatal or neonatal practitioners are tried in state court.

How do laws in one state affect clinical practice in another state? Practitioners may wonder how a Michigan court decision would affect a practitioner in Ohio or Nevada. Generally state court decisions are binding only in that state. If the Texas Supreme Court has ruled on an issue, the court’s findings are viewed as state law in Texas, and the legislatures and courts of California, North Carolina, or Wyoming are not bound by the Texas court ruling. A state court’s ruling could be persuasive in other states, but the conclusions of one state court are not generally viewed as binding on courts in other states.

This concept of one state’s laws affecting another state also holds true for laws passed by state legislatures. If the California legislature passes a law concerning access to prenatal care, the law would have essentially no effect on citizens of Connecticut or Virginia. Issues such as the definition of “live birth” are treated differently by different state governments. Clinicians should be familiar with their applicable state laws before relying on case law or statutes cited in this chapter.

General Structure of the Federal and State Court Systems

Several of the cases cited in this chapter mention the holdings of various state and federal appellate courts, and several US Supreme Court decisions are also discussed. How does a case get to an appellate court or to the US Supreme Court? Various rules determine which court hears a dispute and which appellate court has the jurisdiction to review the decisions of the lower courts. Most of the cases discussed in this chapter would be adjudicated in the state court system. The general hierarchies of the federal and state court systems are depicted in Figure 5-1.

Attending neonatologists carry substantial responsibility. Generally they bear ultimate medical responsibility for the neonates under their care. Practically speaking, it is impossible for one physician to provide all of the care for a sick newborn. Depending on the clinical setting, nurses, NNPs, PAs, respiratory therapists, social workers, residents, fellows, consultants, and many others all contribute greatly to patient care. The exact demarcation of responsibility and liability borne by attending physicians for these alternate providers is often difficult to determine.

In holding attending physicians liable for the acts of others, courts tend to rely on three different theories of liability. An early theory of attending liability was known as the “captain of the ship doctrine.” Physicians, particularly surgeons, were assumed to be similar to naval captains and to have complete control over the operating room (the “ship”) and all the medical personnel (the “crew”) within. With this control came responsibility for all negligent actions performed by anyone under the surgeon’s “command.”⁶³ Most courts now recognize the increasing complexity of health care provision and have rejected the captain of the ship doctrine as “an antiquated doctrine that fails to reflect the emergence of hospitals as modern health care facilities.”⁴⁹

Respondeat superior is a more accepted doctrine of physician liability for negligence of others under his or her control. Respondeat superior literally means “let the master answer.” Because an attending physician has a right of control over an NNP or resident, the negligence of that provider is imputed to the attending physician in certain circumstances. Under respondeat superior, the attending physician would be responsible if a resident negligently places umbilical lines or an endotracheal tube. The attending physician would not be liable, however, under respondeat superior if a bedside nurse was negligent in the observation or reporting of a significant intravenous infiltrate. Under the earlier “captain of the ship” doctrine, the attending physician may have been deemed to be responsible for the intravenous infiltrate.

The attending physician can also be held liable for providing “negligent supervision.” For supervisees under his or her charge, the attending physician is responsible for providing adequate training and supervision. The attending physician must be readily available and promptly respond to requests for assistance. This responsibility was underscored in a 2004 obstetric malpractice case in which the attending anesthesiologist was not immediately available for an emergency cesarean section, and the fetus allegedly suffered as a result. The case was settled for $35 million.¹⁴

Finally, in many cases, an attending physician becomes liable for the actions of supervisees by the creation of a physician-patient relationship that flows from the patient through the supervisee to the attending physician. In a case in New York, a patient was seen by a nurse practitioner in an emergency department, and the nurse practitioner misdiagnosed the condition. The attending physician discussed the patient with the nurse practitioner and signed the chart, but did not personally examine or speak with the patient. The court, interpreting New York’s law regarding nurse practitioners, held that “the ultimate responsibility for diagnosis and treatment rests with the physician.”⁶⁶

Duty

“The duty of care owed to an individual, for purposes of a claim of medical malpractice, is based primarily on the existence of the physician-patient relationship.”⁷³ To proceed with a negligence case, the plaintiff must show that the defendant had a duty to the plaintiff. This has been described as a “threshold issue.” Does the defendant owe a duty to the injured party? If there is no duty, no claim of negligence can be sustained.

If a neonatologist has privileges only at hospital A, and the physician is called and refuses to attend a high-risk delivery at hospital B, the physician likely would have no professional relationship with the pregnant woman or her infant at hospital B. The neonatologist cannot breach his or her duty if no duty to the defendant exists. This concept of duty is separate from the moral or ethical obligation to provide care. A physician cannot be liable to a patient if there is no legal duty. Likewise, if NNP Smith is on call for the evening, and NNP Jones has left town with his family for a scheduled vacation, it would be difficult for an injured plaintiff to show that NNP Jones had a duty to attend a high-risk delivery while he was out of town.

Does a physician caring for a pregnant woman have a duty to the newborn even after the infant is born and being cared for by another physician? In Nold v Binyon,⁵⁹ a woman tested positive for hepatitis B. Her newborn did not receive hepatitis B immunoglobulin or the hepatitis B vaccine, and the infant subsequently became a chronic carrier for hepatitis B. The trial court ruled, and the Kansas Supreme Court agreed, that the delivering physician had a duty to inform the woman of her hepatitis B status. The Supreme Court stated, “A physician who has a doctor-patient relationship with a pregnant woman who intends to carry her fetus to term and deliver a healthy baby also has a doctor-patient relationship with the fetus.”

Supervising Others

As discussed earlier, neonatologists are often asked to supervise the care provided by others. This supervisory role generally establishes a physician-patient relationship with any patient who is cared for by the supervised NNP or PA. In these cases, the physician has a duty to the patient even if the supervised NNP is providing all of the bedside care.

Telephone Advice

Is “duty” established when one physician consults with another over the phone? Telephone advice and transport present an interesting legal challenge. On many transports, the responsible physician at the receiving facility is not physically present with the transport team. The receiving physician often begins to offer clinical advice, however, when first contact is initiated by the referring facility. Generally this can be a situation of shared duty. The referring physician and the receiving physician may have a duty to the patient. The receiving physician may have no duty to the patient, however, if the receiving physician is acting more in the role of a consultant.

In Sterling v Johns Hopkins,⁷³ a woman was admitted at approximately 32 to 33 weeks’ gestation to a hospital, and she developed severe preeclampsia and suspected HELLP (hemolysis, elevated liver enzymes, low platelets) syndrome. The treating physician called the emergency transport service to arrange transport to Johns Hopkins because the receiving hospital had an NICU that could potentially care for a premature infant. The receiving physician spoke with the referring physician on the telephone. The woman became unresponsive during the transport. She experienced an intracranial bleed and later died.

The husband sued the receiving hospital, alleging negligent advice given over the phone. The court determined that there was no physician-patient relationship between the receiving physician and the pregnant woman. Because the receiving physician was acting more in the role of a consultant and the referring physician was free to make his own management decisions, the court ruled that the receiving physician did not have a duty to the pregnant woman. “Where the treating physician exercises his or her own independent judgment in determining whether to accept or reject [a consultant’s] advice, … the consultative physician should not be regarded as a joint provider of medical services with respect to the patient.” In this case, the court determined that the treating physician maintained decision-making power and that the physician at the receiving facility was acting more as a consultant than co-managing the patient. The court determined that no duty existed between the receiving facility and the patient.

Telemedicine

With changes in technology, there has been a rapid increase in the use of telemedicine, which is defined by the American Telemedicine Association as “the use of medical information exchanged from one site to another via electronic communications to improve a patient’s clinical health status.”¹² A number of legal issues have arisen with respect to telemedicine, and the law has not been able to keep pace with the technology. Many of these issues have to do with licensure, credentialing, and reimbursement as well as liability. For example, a physician based in state A who cares for a patient via telemedicine located in state B may be found to be practicing without a license and subject to disciplinary action in state A as well as medically liable in state B. Some states have created special laws or offer limited telemedicine licenses. Other states have specific regulations about the care provided. Colorado, for example, requires that “Any health benefits provided through telemedicine shall meet the same standard of care as for in-person care.”²³ Additionally, many malpractice insurance policies specifically exclude telemedicine coverage. There is little question that telemedicine has significant potential to improve quality and access to care for patients, especially in underserved areas. Given the legal risks, however, it is important to seek legal counsel and be aware of relevant laws and regulations.

Prenatal Consultation

Prenatal consultations might or might not give rise to a duty between the neonatologist and the pregnant woman and her child. Among the determining factors, courts seem to evaluate the formality of the consultation and the presence or absence of contact between the parties. In Hill v Kokosky,³⁷ an obstetrician informally consulted with a neonatologist. The plaintiff had been admitted to the hospital at 22 weeks’ gestation with a diagnosis of incompetent cervix. The two physicians informally discussed the case over the telephone. The obstetrician discussed the case in the abstract, and the neonatologist tended to agree with the obstetrician’s management. There was no referral or formal consultation. From the record, it seemed that the neonatologist did not review the chart, speak with the mother, or even know the mother’s name. The infant was born 2 weeks later and developed severe cerebral palsy.

In her malpractice action against the neonatologist, the mother maintained that the neonatologist gave substandard advice concerning birthing options and that this substandard advice contributed to her infant’s injuries. Given the facts, the court concluded that no physician-patient relationship existed between the neonatologist and the family. It is important to understand why the court ruled for the defendant in this case. Casual telephone advice was given to a colleague. The neonatologist did not know the name of the patient and never spoke with her. The court concluded that the neonatologist did not prescribe a course of treatment, but rather gave recommendations that could be accepted or rejected by the obstetrician.

In contrast to this case, if a neonatologist is formally consulted and speaks with a family and makes recommendations concerning management, there may be a duty to the mother and her infant. Judicial decisions also seem to hinge on whether or not a consulting physician is recommending a specific course of therapy or merely making suggestions that the original physician either can follow or can ignore.

Generally it is not difficult for a plaintiff to establish that a clinician had a duty to the patient. Usually the physician has provided care to the patient, and the plaintiff easily establishes that the duty requirement has been met. Especially in the case of hospital-based physicians, such as neonatologists, the element of “duty” is generally established.

What is the duty that is owed? The duty is to provide reasonable care under the circumstances. Although generalists are held to a standard of “same or similar community,” specialists and subspecialists, such as neonatologists, NNPs, and perinatologists, are generally held to the higher national standard of care.⁶⁰ An expert witness from a different state can testify about the national standard of care for a neonatologist. In these cases, the neonatologist’s care is not being compared with the care provided in a similar community; the care is evaluated in light of national standards.

In many malpractice suits involving obstetricians, perinatologists, and neonatologists, considerable emphasis is placed on this element. Often the defense vigorously maintains that “the doctor did nothing wrong.” The defense often takes the position that there has been an unfortunate outcome, but the defendant practiced within the standard of care. If the defense can prove that the physician acted within the standard of care, the plaintiff cannot successfully maintain a malpractice action.

A typical case is a brachial plexus injury after birth. In Knapp v Northeastern Ohio Obstetricians,⁴⁶ a mother alleged that her infant’s brachial plexus injury was the result of excessive traction applied by the obstetrician. The trial court found, and the appellate court affirmed, that the evidence did not support the mother’s allegations. The court concluded that the obstetrician had not breached the standard of care.

Retinopathy of prematurity (ROP) is another common source of negligence cases involving newborns. In Brownsville Pediatric Associates v Reyes,²⁰ a pediatrician was found liable for substandard ventilator management. The expert witness testified that the child’s resulting brain damage and ROP were related to hyperventilation and hyperoxia. The plaintiff was awarded $8 million, and the defendant’s appeal was denied.

Another ROP case³⁴ dealt with the responsibility of the neonatologist, the pediatricians, the pediatric ophthalmologist, and the parents when 29-week gestation twins missed their follow-up appointments for ROP evaluation. The twins became legally blind. In this case, the neonatologist apparently provided all necessary referrals and documentation, and she was not named in the resulting suit.

Role of the Expert Witness

In tort proceedings other than medical malpractice, a person with common knowledge generally knows and understands “due care.” If someone is walking down the street with closed eyes and bumps into someone else and injures the other person, a lay juror does not need an expert witness. The lay juror understands that one should not walk down the street with closed eyes because someone else could be injured as a result. In medical malpractice cases, however, the lay juror generally does not have a grasp of “reasonable care under the circumstances.” This is one of the roles of the expert witness. To serve as an expert witness, an individual must have specific knowledge and training that qualifies him or her to serve in this capacity. The Rhode Island statute,⁶⁸ for example, states “only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice.”

If a fetal monitoring strip shows severe, repetitive, late decelerations, should the obstetrician perform a cesarean section? It is the role of the expert witnesses to educate the jury so that the jurors have a grasp of what is (and is not) reasonable care under the circumstances. Both sides (plaintiff and defendant) usually hire their own expert witnesses. The plaintiff’s expert generally maintains that the physician practiced outside of the standard of care. The defense expert maintains just the opposite. After the expert witnesses are examined and cross-examined, it is up to the jury (or arbitrators) to decide whether the clinician committed a breach in the standard of care.

Expert witness testimony is often required in neonatal-perinatal malpractice cases. Expert witnesses were used in the 2000 Pennsylvania case, Sonlin v Abington Memorial Hospital.⁷¹ In this case, a premature infant girl who was born at approximately 34 weeks’ gestation had an umbilical line. The infant developed vascular compromise in her left leg, which resulted in a thrombus that required amputation of the extremity. The plaintiff maintained that the neonatologist did not recognize the thrombus and that he did not institute corrective action in a timely fashion.

Expert witnesses would have to explain to a jury why umbilical lines are placed, how long they are left in place, and the potential complications from indwelling arterial catheters. In this case, an expert would have to explain the effect of prematurity on lung development and the subsequent necessity for monitoring blood oxygen levels. Basically, the expert must explain the standard of care, the indications for the procedures, and the potential complications.

In the Louisiana case, Hubbard v State,³⁹ a full-term newborn was admitted with meconium aspiration and hypoglycemia. A peripheral intravenous infusion of 10% dextrose in water was ordered. After a change was made in the intravenous fluid, it was noted that the infant’s hand became red and swollen, and the infant became lethargic. His blood glucose was 450 mg/dL. Because of an error, the infant had received 50% dextrose in water instead of the 10% dextrose in water that was ordered. The infant sustained third-degree burns that left permanent disfigurement of the hand, and a computed tomography scan showed a “possible venous thrombosis of the transverse and sagittal sinus.” By the time this case reached the Louisiana Appellate Court, the child was almost 8 years old. In the interim, the child had been found to have Russell-Silver syndrome, a condition known to be associated with developmental impairment. The expert witnesses were extensively questioned about whether the dehydration and possible venous thrombosis contributed to the child’s observed mental delays.

These cases represent a potential breach in the standard of care. Mistakes were made, infants were harmed, and the families attempted to hold the caregivers responsible for the damages that occurred. In both of these cases, expert witnesses were needed to assist in delineating the standard of care for the legal decision makers.

Unbiased and truthful expert witnesses are an important component of the American tort system. An American Academy of Pediatrics policy statement describes professional expectations for expert witnesses, including “thorough, fair, objective, and impartial” testimony provided for reasonable compensation.¹¹ Additionally, the experts must base their opinions on “sound scientific principles.”

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