New Hampshire Law Blog

NH Supreme Court Overturns Malpractice Case

The New Hampshire Supreme Court has reversed a $2.3 million jury decision in a "wrongful birth"malpractice case against Dartmouth-Hitchcock Medical Center, ruling that the hospital sufficiently informed a couple about the potential for their unborn son to have significant birth defects.

The full article follows in the extended body of this post.

Source:  Someone emailed this to me, but I believe it came from the Valley News

Moultonboro  'Wrongful birth' case overturned Couple says Dartmouth-Hitchcock fell short

By JODIE TILLMAN
Valley News

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he New Hampshire Supreme Court has reversed a $2.3 million jury decision in a "wrongful birth"malpractice case against Dartmouth-Hitchcock Medical Center, ruling that the hospital sufficiently informed a couple about the potential for their unborn son to have significant birth defects.

Sherry and Brad Hall of Moultonboro sued the hospital three years ago, saying they would have terminated the pregnancy had the hospital's genetic counselors and doctors more fully informed them of the extent of their child's disabilities, which stem from an extremely rare chromosomal disorder called partial trisomy 9q.

The Halls' son, Brandon, now 5, is severely retarded, uses a feeding tube, cannot walk and requires around-the-clock care, said the couple's lawyer, Steven Latici of Gilford. He said he plans to file a motion for the Supreme Court to reconsider its decision.

"They are emotionally devastated by this decision," Latici said of the Halls. "We think the court made significant interpretive errors."

DHMC lawyer Ron Snow of the Concord law firm Orr and Reno said that the high court was prudent in ruling that doctors must discuss potential outcomes but need not be "definitive" in their prognosis for an unborn child, particularly because current medical technology makes being definitive impossible in some cases.

The Halls brought the wrongful birth claim in Grafton County Superior Court against DHMC, cytogeneticist T.K. Mohandas and Dartmouth College, which is Mohandas'employer.

The claim against Mohandas alleged that he was medically negligent in reporting the fetus's genetic "karyotype"-- a digital image of its 23 pairs of chromosomes - as normal, when, in fact, it was not.

DHMC, the Halls said, was medically negligent because its prenatal genetic counseling team - made up of doctors and counselors -failed to provide "complete and accurate" information in a timely manner that would have allowed the couple to make an "informed decision" about whether to terminate the pregnancy.

The Grafton County jury in 2004 did not find Mohandas or Dartmouth College liable in the case, but it did rule against DHMC, which then asked Superior Court Judge Steven Houran to set aside the jury verdict because it stood in contradiction to the evidence. Houran denied the hospital's motion, and DHMC took the matter to the Supreme Court.

It was only the second ever "wrongful birth" lawsuit to reach the state's high court. Justices cited a 1986 decision that found that parents of a child born with severe defects could file a wrongful birth claim if their providers failed to inform them of an "increased possibility" of the child's problems.

Brad Hall testified that DHMC should have told them, "This is what's wrong with your baby and you need to consider termination."Justices said the couple cited no authority to support that contention.

Ethical implications

Beyond the issues of malpractice liability, the case also touched on the intricacies of genetic testing - and its broader ethical implications: What kind of message do such lawsuits send about how society values disabled people? Or, who can judge those parents who see on a daily basis the suffering of the most profoundly disabled children? And how does a woman's right to an abortion fit into the debate? Susan Crockin, a Massachusetts lawyer who specializes in reproductive law, said wrongful birth claims have been around for decades but have grown increasingly more complicated since prenatal genetic testing started to take off in the 1990s. She has dubbed such cases "reproductive wrongs."

Reproductive genetic testing has been used for decades to inform prospective parents about their risk of producing a child with a genetic disorder. Advances in recent years have made it possible to predict with varying certainty more than 1,000 types of disorders, such as Down syndrome. One motivation for "wrongful birth" suits is to seek financial resources to help pay the enormous costs of raising children with serious birth defects, said Andy Imparato, president of the American Association of People with Disabilities.

"To the extent that there's potential for liability, you can't argue with that," he said. "I try not to blame the parents who bring these kinds of cases." But Imparato said he couldn't square the essential argument in such cases with respect for people who live with disabilities. "It can reinforce the widely held notion that a disability is a fate worse than death," he said.

The Halls have indicated they will not institutionalize their son, and Sherry Hall is his full-time caretaker while her husband works at his home repair business, said Latici, their lawyer. The couple loves their son, he said, "and they are two of the most dedicated parents I've ever met in my life."

That makes these types of cases particularly complicated. Though they love Brandon, they are also arguing in court that they would not have had him if they had known just how his life would have turned out, Latici said. He recalled that he asked Brad Hall during the trial if his son would have been better off not born. Brad Hall "sat there and choked up and said if (Brandon) had the ability to communicate he (would say he) would rather not have been born," Latici said. He said the Halls, who are currently out of the state, are not speaking to the press.

The court's account

The Supreme Court's decision provides the following account of the case:

Sherry Hall learned she was pregnant in December 2000. Three months later, her prenatal care provider in Moultonboro referred her to DHMC in Lebanon for genetic counseling after a test showed the fetus carried an elevated risk for a chromosomal disorder called trisomy 18.

The Halls met that month with Valerie Hani Lacroix, a certified genetic counselor at DHMC, and Emily Baker, a physician. An ultrasound revealed nothing out of the ordinary - with the exception of clenched hands, a well-known marker for the disorder.

The doctor recommended an amniocentesis to get more information about the fetus, and Hall told doctors "she would terminate her pregnancy if the testing revealed any chromosome abnormalities."

The fluid sample from the amniocentesis was sent to a cytogenetics lab run by T.K. Mohandas, an employee of Dartmouth College. Hall was told that it would be at least two weeks before she could get the results; about a week later, she told Lacroix that she wanted to terminate her pregnancy. Lacroix urged her to wait for the results of the amniocentesis before making a decision.

The lab examined the fluid and issued a report saying the digital image of the fetus's chromosomes were characteristic of a normal male. Trisomy 18 was ruled out, and on March 20, 2001, Lacroix called the Halls and told them they had a "normal, healthy baby boy."She added that the clenched hands were often indicative of a "simian crease," a single crease across the palm of the hand, which the Halls understood to have no genetic significance. As a result of the report, the Halls were no longer talking about terminating the pregnancy.

A week later, however, a follow-up ultrasound revealed that in addition to the clenched fists there also was the possibility of a congenital deformity in which the foot is shaped like a convex, rocker bottom. Upon reviewing the latest ultrasound, Lacroix issued an order to the laboratory to save any remaining amniotic fluid for further testing. She did not share this information with the Halls. No member of the DHMC genetic counseling team contacted the Halls about the follow-up ultrasound results.

The next time the Halls heard from DHMC was to schedule another ultrasound, on April 24, 2001. Following the ultrasound, the couple met with Michelle Lauria, a DHMC physician. At the time of the meeting, Hall was at almost 24 weeks of gestation; DHMC performs abortions only up to 22 weeks of gestation. Boston-area providers, however, terminate pregnancies up to 24 weeks of gestation.

Lauria told the Halls that in addition to the continually clenched hands and the possible rocker-bottom foot, the fetus also exhibited additional problems on the ultrasound, including an unusually small lower jaw, possible heart problems and a possible head deformity that suggested an underlying brain abnormality. During that meeting, Lauria discussed a broad range of possibilities, ranging from a "very minor problem that perhaps would require some physical therapy or maybe some surgery, all the way to be just severely affected, dying at birth or being severely mentally retarded."

Transferring care

The Halls decided at that point to transfer her medical care to Brigham & Women's Hospital in Boston. An additional ultrasound there showed the clenched hands and small lower jaw but did not detect the other problems DHMC found, and Hall decided to carry the fetus to term.

On July 25, 2001, Brandon Hall was born with multiple severe congenital anomalies. A cytogeneticist at Brigham & Women's Hospital examined a sample of blood taken from the umbilical cord, "looking carefully for something abnormal."Eventually, the lab found that one of his chromosomes had a slightly unusual appearance. Given that, the lab called for parental blood samples.

When the lab examined a blood sample of the child's father, it concluded he had what is known as a "balanced translocation": He had the correct number of chromosomes, but two pieces of material had switched positions. Like most people who have such a trait, Brad Hall does not suffer from any physical or mental abnormalities. But because the child had inherited half of his chromosomes from his father and half from his mother, he had an "unbalanced translocation."The particular switch of chromosomal material was diagnosed as partial trisomy 9q.

"This diagnosis was more than extremely rare," the court notes. "It was the first reported occurrence of this particular configuration of chromosomal abnormality."

Crockin, the Massachusetts attorney who studies reproductive law, said her understanding of the justices' opinion is that the rarity of the abnormality played into their decision.

She said the Halls "make a sympathetic argument" that they should know probability, not just possibility, of the defects. "If it was a less rare disorder," she said, "it might've gone the other way."

NH Medical Malpractice Rates will be reviewed.

The New Hampshire State Insurance Commissioner ruled last week that:

New Hampshire's marketplace for medical malpractice insurance for doctors, surgeons and hospitals is too concentrated and noncompetitive

What this basically means is that the Insurance Commission will review rate changes before they go into effect and will have the authority to make changes to those rates.

Read the Article Here at the Union Leader

State looks at Medical Malpractice Insurance Rates

The State Department of Insurance had a public hearing to help determine if the medical malpractice insurance environment in the state was competitive.  It seems that a few people agree that it is not.  If the state rules that it is not competitive , then the Department of Insurance will review rates before they are set.

The top four firms share 68 percent of the market, and the top eight share 82 percent...

The hearing could be a preliminary step to Insurance Commissioner Roger Sevigny's determining that the market is uncompetitive, under RSA 412:13, which would allow him to review rates before they are put in place and disapprove rates he finds unreasonable.

The New Hampshire Medical Society Agrees that rates are not competitive.

New Hampshire Medical Society Executive Director Palmer Jones testified that his organization agrees the market in New Hampshire is non-competitive. "There are only a few major companies that are providing insurance at this time," he said. "Options are limited."

Source:  The Union Leader;  The Nashua Telegraph

How about a NH Medical Commision to study medical errors?

Sounds good to me.  Currently when a medical error takes place, a hospital in New Hampshire can investigate that error and not have to reveal the investigation in court as part of a lawsuit.  That is because you want to encourage hospitals to fix problems that come up in that investigation.  If the investigation could be used against the hospital in court then they wouldn't do it.

So now the idea is to create a Commission that studies medical errors and SHARES the results between hospitals.  That way an error that occurs in Manchester might be investigated and the cause of the problem solved. Then through this commission that solution gets shared with hospitals all over the state in Laconia, Concord, Portsmouth...wherever.  Those hospitals can then implement the improvements and make medical care safer all over New Hampshire

Source:  NH Public Radio

Early Detection of Lung Cancer

Here's why early diagnosis of lung cancer is important...

The survival rates for early stage disease are quite high, approaching 80 percent in some series.

According to this recent study,

Researchers have shown that low-dose spiral computer-based tomographic (CT) screening for the early detection of lung cancer can lead to an early diagnosis in a high proportion of cases, potentially increasing the chances for a cure.

Read the article here at Medical News Today

Because early detection can be so successful with cancer, it is important that the testing be read correctly.  This is where misdiagnosis of lung cancer cases come from.  Once the window of opportunity to treat a disease is closed, then the chances of survival drop.  This loss of chance is what drives a cancer misdiagnosis medical malpractice case.

Subarachnoid Hemorrhage: Missed Diagnosis

More on our focus on Emergency Room medical malpractice.  The problem with missing this diagnosis is that the results can be disastrous.

A Subarachnoid hemorrhage is a disorder involving bleeding between the middle membrane covering of the brain and the brain itself, within the cerebrospinal fluid-filled spaces surrounding the brain (also known as the subarachnoid space). Medline Plus

Headaches are one of the leading reasons why people go to an emergency room in the first place.  If the headache is a sudden headache and feels like one of the worst you have ever experienced, then chances are higher that the headache is more than a chronic headache.

A subarachnoid hemorrhage is sometimes misdiagnosed as TIA, trauma, chronic headache, meningitis, neck strain or arthritis.  If the ER staff move too quickly toward one of these results then you may not get a CT scan which is probably going to pick up the bleeding in about 90 percent of cases.  One other fact to consider is whether there was another headache that was somewhat severe in nature several days before this one.  That previous headache may indicate that the bleed was about to happen.  Not asking for a good patient history might miss this fact.

 

Misdiagnosis of Pulmonary Embolism

2/3 of pulmonary embolism cases are misdiagnosed. Over 600,000 cases of pulmonary embolism occur every year and only 1/3 are ever diagnosed correctly.    If you go to an emergency room and they miss the diagnosis and send you home the chances of dying increase because there is a chance an emboli will recur.

Symptoms:

• Shortness of breath (dyspnea)
• Chest pain
• some sort of shock (sometimes low blood pressure)
  
• syncope (fainting)

Diagnostic tests used to find Pulmonary Embolism:

• Chest x-ray
• Sometimes you will see the doctors rule out a DVT (Deep Vein Thrombosis),
• Blood gases to check for oxygen levels

98,000 medical errors deaths yearly

It's a number that has been used a lot over the past several years.  In a study released on May 18, 2005, the Journal of the American Medical Association reports that the rate of death has not changed much since 2000 when a previous study was released.

98,000 deaths nationwide...How many people is that in New Hampshire?

Source:  www.USAToday.com

Aspirin and Colon Cancer

A study has been released indicating that aspirin "MIGHT" reduce the risk of Colon Cancer recurring.  Read the article here in the Detroit News.

Legislature approves new medical malpractice bill

The New Hampshire Legislature has approved a bill that will allow a doctor to apologize to a patient and NOT have that apology held against him or her in court.  This is a good thing.  Currently if a doctor admits a mistake and says "I'm Sorry" that statement can be used in court because it is an admission by a party to the lawsuit (the doctor).  An evidence rule allows statements like this into court.

That rule has kept doctors from apologizing and that is bad.  Doctors should be allowed to apologize without it being held against them.  Many people just want to hear that apology and it helps with the doctor patient relationship.  By passing this law you will likely reduce, by a little, the number of small malpractice lawsuits that are filed by people without lawyers who just want an apology.  It won't have an effect on most malpractice lawsuits, because in most cases the damages are so large that the injured person has to file in order to reconstruct their life in some way.

See article at the Nashua Telegraph
The bill is HB 584.