Failure to notify parents of newborn's abnormal blood screen. (Legal Focus on Hospital Law Issues).

CASE ON POINT: Hanshaw v. River Valley Health Systems, 2003 WL 21040300 N.E.2d -OH

ISSUE: In this unusual Ohio case, the courts were confronted with the issue of whether a hospital had a responsibility to communicate to the parents of a newborn abnormal test results from a blood screen test mandated by state law. The test results were sent from a state lab to both the physician who attended the delivery as well as the hospital at which the birth took place. For reasons unknown, the attending physician, despite having received the abnormal test results, failed to notify the newborn's parents. Consequently, no further diagnostic tests were performed or were any efforts undertaken to address the cause of abnormal results. When the newborn's parents brought suit against the hospital, the courts were faced with making a decision as to whether or not the hospital (which had received the abnormal test results) had a duty to disclose the results to the parents.

CASE FACTS: On December 14, 1986, Karen Lewis gave birth to Terria Lewis at Lawrence County General Hospital. At that time, Ohio law required all newborns to undergo newborn screening. Dr. Thomas Tsou ordered a newborn screening test to be performed on Terria. On December 1986, the newborn's blood was drawn for testing. The test results subsequently were sent to both Dr. Tsou and the hospital. The test results indicated that Terria had homocystinuria. Upon receiving the results, the hospital placed them in Terria's medical chart. The hospital did not contact Terria's mother. Dr. Tsou also received the test results. He maintained that upon receiving results, he notified Terria's parents of the results and advised the parents of the need for a follow-up. For reasons not entirely clear, no follow-up tests were performed. Consequently, Terria's condition went untreated. Terria's parents individually and on behalf of Terria brought suit against the hospital. The hospital's motion for summary judgment was granted on the grounds that the hospital had no duty to notify the plaintiffs of the abnormal results. The hospital maintained that Ohio law required that the physician who ordered the screening had the duty to notify the parents of the test results. The Court of Common Pleas granted the hospital's motion for summary judgment. The plaintiffs appealed.

COURT'S OPINION: The Court of Appeals of Ohio affirmed the summary judgment for the hospital. The court held, inter alia, that it was satisfied that the hospital had no common law duty to notify the newborn's parents of the abnormal test results. The court perceived the hospital as simply the location, which "happened to be" the place where the child was born. The court stated that whether a defendant owes a plaintiff a duty is a fundamental aspect of establishing actionable negligence. If there is no duty then, no legal liability can arise on account of negligence. Where there is no obligation of care or caution, there can be no actionable negligence. Only when one fails to discharge an existing duty, can there be liability for negligence.

LEGAL COMMENTARY: The court reviewed Ohio law, which required the screening in order to determine whether the hospital had a duty to notify parents of test results. According to Ohio law, the result of each test performed was to be transmitted to the person "who submitted the specimen to the hospital." In addition, any abnormal or suspicious test result is to be reported to "such person" in the manner prescribed by the Director of Health. The court found that the test was to be completed within 30 days after the receipt of the properly collected and submitted specimen, and the result of each test performed was to be submitted to "the person" who submitted the specimen or to the hospital in the manner prescribed and provided by Director of Health. The court concluded that Dr. Tsou was "the person" who submitted the specimen, and that the hospital was not "the person." Editor's Note: It is respectfully submitted that not all courts would agree with the decision reached by the Ohio court in this case. In fact, the court stated, inter alia, that "initially, we agree generally with the appellant (plaintiff) that [Ohio law] does not abrogate the appellee's [hospital's] common law duty of care. It is interesting to note that a dissenting opinion was filed. Another judge joined in the dissent. The rationale of the dissenting judges was that the hospital had a common law duty to notify the newborn's parents of the abnormal test results. The dissenting judges reasoned that if a newborn is not born in a hospital, the law provided that the test results should be sent to the child's attending physician, certified nurse midwife, certified nurse practitioner, or clinical nurse specialist. The dissenting judges went on to state that many courts have found physicians liable for malpractice for failure to communicate important information to patients. Although the dissenting judges were firm in their conviction that the attending physician had a responsibility to notify the parents of the abnormal test results, the judges did not find, ipso facto, that this in any way relieved the hospital of its responsibility to give notice to the newborn's parents.

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.