EMAIL TO A FRIEND COMMENT

 

Failure to Prevent Rh-Sensitization during Pregnancy; Discovery Rule


During her first pregnancy, a woman sought the care of a doctor. Testing revealed that the woman’s blood type was Rh-negative. Testing revealed that the baby’s blood type was Rh-positive, creating a risk for Rh-sensitization if their blood mixed.

 

Complications sometimes arise during pregnancy because a pregnant woman may have a different Rh-factor than her fetus. A woman may become Rh-sensitized, which causes the woman’s body to react to the fetus’s Rh-positive blood as if it is an infection or a foreign substance. Once a woman is Rh-sensitized, the woman is permanently Rh-sensitized. An Rh-sensitized woman has no symptoms until the woman has a fetus with Rh-positive blood, at which point the woman’s body may break down the fetus’s blood cells, potentially causing severe harm to the fetus and sometimes even resulting in a miscarriage.

 

To protect against Rh-sensitization, doctors can administer an injectable medication called RhoGAM. RhoGAM is preventative, meaning it can only prevent Rh-sensitization, and cannot undo the sensitization once it has occurred. Accordingly, RhoGAM has no beneficial effect if the woman who receives it is already Rh-sensitized. Where a pregnant woman is Rh-negative and her fetus is Rh-positive, a doctor would typically order that the woman receive RhoGAM twice, once between 26 and 28 weeks gestation, and once upon delivery. Not all Rh-negative pregnant women become Rh-sensitized, even without a RhoGAM shot. A woman who has been Rh-sensitized may be entirely asymptomatic until the next pregnancy.

 

The woman did not receive a RhoGAM injection prior to the delivery of the woman’s first child. The woman became Rh-sensitized. While the birth was uncomplicated, the infant suffered complications associated with Rh-positive infants born to Rh-sensitized mothers. The woman received a RhoGAM injection after the birth. Lab tests after the birth confirmed that the woman had become Rh-sensitized. No one informed the woman that the woman had become Rh-sensitized.

 

Approximately three months after the birth, the woman conducted internet searches regarding RhoGAM because the woman recalled receiving a RhoGAM injection after the delivery. The woman did not learn that the woman had become RH-sensitized at that time.

 

Approximately two years later, the woman became pregnant a second time. During this pregnancy, the woman received treatment from a different doctor. The woman never told the second doctor that the woman knew the woman was Rh-sensitized or that the woman was concerned about potential problems associated with Rh-sensitization. The woman’s second child was born with serious complications that required blood transfusions and were consistent with injuries caused by a mother’s Rh-sensitization. At this point, the second doctor informed the woman that the woman had become Rh-sensitized.

 

The woman sued the doctor who cared for the woman during the first pregnancy and the doctor’s practice group for negligence. The complaint alleged that the doctor failed to order that the woman receive a RhoGAM injection during the first pregnancy and that this negligence caused the woman to become Rh-sensitized.

 

The doctor moved for summary judgment. The motion argued that the claim was barred by the applicable two-year statute of limitations.

 

During pretrial proceedings, the Seventh District Court, Moab Department, narrowed the issues to be tried by ruling on summary judgment that, while genuine issues of material fact precluded a summary ruling regarding when the woman learned that the woman was Rh-sensitized, the woman knew no later than three months after the first child’s birth when the woman conducted the internet searches for RhoGAM that the woman should have been given RhoGAM during the first pregnancy but was not. The trial court bifurcated the trial into two phases: one phase concerning whether the statute of limitations barred the woman’s claim and, if necessary, a second phase concerning the merits of the woman’s medical malpractice claim, including the question of whether the doctor was negligent.

 

Regarding the evidence for the first part of the bifurcated trial, the trial court excluded part of the woman’s discharge summary medical record stating that the doctor had ordered a RhoGAM injection for the woman during the first pregnancy and some of the doctor’s other medical records that contradicted this assertion by indicating that no RhoGAM injection had ever been ordered for the woman. The woman wanted to use the medical records to argue that the doctor misrepresented in the records that the doctor had ordered a RhoGAM injection for the woman but in fact had never done so. The woman hoped that, by so doing, the woman could cast doubt upon the doctor’s credibility, including, specifically, the credibility of the doctor’s assertion that the doctor had informed the woman of the Rh-sensitization on or about the first child’s birth. The trial court reasoned that the probative value of the evidence was outweighed by the risk that it would confuse the jury.

 

During jury selection, some issues arose with one of the potential jurors. First, the potential juror stated that the potential juror had once been a patient at the practice group, although the potential juror had not been a patient of the doctor. Second, the potential juror indicated that the potential juror’s wife had once been a patient of the doctor himself. Third, the potential juror indicated that the potential juror had known of the doctor and the doctor’s wife for several years, although the potential juror did not know the couple personally. Fourth, the potential juror indicated that the potential juror was involved in a scouting program and one of the boys involved in that program was the son of one of the doctor’s nurses, who was identified as a trial witness. The trial court allowed the woman’s attorney to ask the potential juror follow-up questions about these disclosures. After asking these questions, the woman raised a challenge to strike the potential juror for cause, expressing concern that the potential juror’s acquaintance with the doctor and personal relationship with the doctor’s nurse’s son would bias the potential juror in favor of the doctor and the practice group. In response, the trial court asked the potential juror if the potential juror would be affected if the nurse testified as a witness in the case. When the potential juror stated that the potential juror would not be, the trial court denied the woman’s challenge for cause. The woman used all of the allowable peremptory challenges during jury selection and the potential juror was seated on the jury.

 

The doctor’s counsel contacted the doctor’s nurse the day before the nurse testified at trial. The doctor’s counsel and the nurse discussed the doctor’s practice habits in general. During the nurse’s testimony, the woman discovered this communication had taken place. The woman moved that the trial court deem the communication improper and determine how to mitigate the impropriety. The trial court denied the motion.

 

The trial court instructed the jury that discovery of an injury from medical malpractice occurs when an ordinary person through reasonable diligence knows or should know that the person might have sustained an injury.

 

The jury found that the woman knew that the woman might have sustained an injury more than two years before the woman filed the complaint. The trial court then dismissed the woman’s lawsuit on the ground that it was not timely filed.

 

The Court of Appeals of Utah affirmed the trial court’s summary judgment decision, but reversed the trial court’s dismissal of the woman’s lawsuit. The court held that (1) the trial court did not err in ruling on summary judgment that the woman discovered the doctor may have been negligent no later than three months after the first child’s birth when the woman conducted the internet searches for RhoGAM, (2) the trial court erred by including the words “might have” in the jury instruction and special verdict form, (3) the trial court did not abuse its discretion when it did not dismiss the potential juror after the woman challenged the potential juror for cause, (4) the trial court abused its discretion when, during the first phase of the bifurcated trial, it excluded from evidence the doctor’s medical records generated during the doctor’s treatment of the woman, and (5) the trial court erred in concluding that the conversation between the doctor’s counsel and the doctor’s nurse was not improper.

 

The trial court did not err in ruling on summary judgment that the woman discovered the doctor may have been negligent no later than three months after the first child’s birth when the woman conducted the internet searches for RhoGAM. A plaintiff may discover that a medical provider may have been negligent where the results of any such negligence would not necessarily be immediately apparent. Considering the specific nature of Rh-sensitization, the trial court was reasonable in finding as a matter of law that the woman discovered the possibility of the doctor’s negligence when the woman learned the woman should have received RhoGAM during the first pregnancy and knew that the woman did not actually receive it.

 

The trial court erred by including the words “might have” in the jury instruction and special verdict form. Including the words “might have” in the jury instruction and special verdict form incorrectly stated the law and effectively lowered the doctor’s and the practice group’s burden of proof required for the statute of limitations defense. The doctor and the practice group needed to establish that the woman knew or should have known about the injury in order to trigger the statute of limitations. Under the trial court’s instruction, the doctor and the practice group needed to establish only that the woman was or should have been aware of a possibility that the woman might be injured. Accordingly, the trial court’s decision to include those words in the jury instructions and special verdict form was erroneous.

 

The trial court did not abuse its discretion when it did not dismiss the potential juror after the woman challenged the potential juror for cause. The potential juror’s statements that the potential juror had met both the doctor and the doctor’s nurse and had been treated at the practice group were not sufficient to raise a presumption of bias because, without more, the statements did not indicate any relationship beyond the level of a mere acquaintance. Bias cannot fairly be inferred from a mere acquaintanceship alone. The trial court gave the woman ample opportunity to question the potential juror to determine the extent and depth of any potential bias and the woman was unable to unearth anything more than the fact that the potential juror was merely acquainted with both the doctor and the nurse. Because no presumption of bias was raised by the potential juror’s disclosures, the trial court asking the potential juror if the potential juror’s relationship with the nurse would affect the potential juror’s ability to be fair and impartial was appropriate and the potential juror’s negative response bolstered the trial court’s conclusion that the juror could be fair and impartial.

 

The trial court abused its discretion when, during the first phase of the bifurcated trial it excluded from evidence the doctor’s medical records generated during the doctor’s treatment of the woman. The evidence was relevant to whether and when the woman knew about the injury. This evidence would have at least some tendency to make it more or less probable that the doctor informed the woman of the woman’s Rh-sensitization as the doctor claimed because it touched on whether the doctor’s testimony was generally credible. The court found that there would be no potential for unfair prejudice to the doctor as a result of introducing medical records the doctor created. The court reasoned that the proffered evidence may reflect poorly on the doctor by indicating to the jury that the woman did not receive a RhoGAM injection during the first pregnancy (a stipulated fact), the doctor had no contemporaneous record of ordering a RhoGAM injection, or the doctor wrote that the doctor ordered an injection in order to conceal the doctor’s negligence. But the risk of evidence reflecting poorly on the doctor’s credibility is not the same as a danger of unfair prejudice. The court found that there would be no appreciable risk that admission of the doctor’s own medical records would have constituted an undue waste of the jury’s time. The proffered evidence was not voluminous and would not have added significant time to the trial. Moreover, the evidence was not utterly unrelated to the question the jury was asked to answer. The court disagreed with the trial court’s conclusion that the probative value of the excluded evidence was substantially outweighed by the danger that it would have confused the jury. The court reasoned that merely because a piece of evidence is relevant to more than one issue does not mean it is inherently confusing. The court concluded that it was improper to exclude relevant evidence in the first phase of a bifurcated trial simply because that evidence might be more relevant to the second phase.

 

The trial court erred in concluding that the conversation between the doctor’s counsel and the doctor’s nurse was not improper. Any ex parte communication between a defense attorney and a plaintiff’s treating physician that is related to the merits or substance of the plaintiff’s case in any respect violates the duty of confidentiality between physicians and patients, regardless of whether the confidential details of the patient’s care are in fact discussed and regardless of whether actual prejudice results. The conversation between the doctor’s counsel and the doctor’s nurse was improper, even though it did not include any discussion of the doctor’s or the nurse’s specific treatment of the woman, because the conversation related to the merits or substance of the case.

 

The Court of Appeals of Utah affirmed the trial court’s summary judgment decision, but reversed the trial court’s dismissal of the woman’s lawsuit on the grounds that it was not timely filed.

 

See: Lee v. Williams, 2018 WL 563977 (Utah App., January 25, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability Risks

 

See the Medical Law Perspectives Blog: Is Stillbirth Medical Malpractice Success Directly Proportional to Weeks of Pregnancy?

 

See the Medical Law Perspectives Blog: Florida’s No-Fault Compensation System for Severe Birth Injury Claims Fails Again

 

 

REPRINTS & PERMISSIONS COMMENT