Negligent prenatal care may result in liability to child.
ISSUE: Are you aware that when you provide prenatal care to an expectant mother, her child can sue you for negligent prenatal care, if it can be proven that it has caused him or her injury?
CASE FACTS: Oil March 6, 2003, Patricia Johnson and Charles Johnson, parents and next friends of their minor child Evan Johnson, filed a medical malpractice complaint against Wellstar Health System, Inc. (Wellstar), Cobb Hospital, Inc., South Cobb-Ob-Gyn, P.C., Nurse Michael McCann, and Dr. Karen Weldon. The Johnsons alleged that the defendants committed acts of negligence during the delivery of Evan. Specifically, the Johnsons alleged that during the delivery, excessive downward traction was exerted on Evan's head while his shoulders were impacted, resulting in a shoulder dystocia causing Evan to suffer from Erb's and Klumpke's palsy. The Johnsons amended their complaint to correct some factual allegations and dismissed Dr. Weldon and Cobb Hospital from their suit. In April 2004, the Johnsons moved to add parties to the case. In their amended complaint, the Johnsons alleged claims against the doctors and nurses at defendant Wellstar who provided "prenatal" services during the course of Mrs. Johnson's pregnancy. Specifically, they alleged that Wellstar's nurses and doctors were negligent for failing to diagnose Evan as large for his gestational age based on an ultrasound examination performed several months prior to his birth and for failing to recommend a cesarean section. The Wellstar doctors and nurses, known as Prenatal Care Defendants, moved for summary judgment on the grounds that the statue of limitations for bringing suit against them had run. The trial court found that the Prenatal Care Defendants owed a duty of care to Evan while he was in utero. The trial court found that Georgia law recognizes a claim for prenatal injuries so long as the child in question is born alive. The trial court considered whether the claims for negligent acts performed by the Prenatal Care Defendants were performed while Evan was a fetus, since Georgia law requires that a live birth is a prerequisite to the right to bring suit. However, the trial court granted the motion of the Prenatal Care Defendants (in spite of the fact that the statute of limitations for bringing suit by or oil behalf of Evan had run would not have run until a full two years after Evan's fifth birthday. The Johnsons appealed.
COURTS OPINION: The Court of Appeals of Georgia reversed the judgment of the trial court and reinstated the case for trial against the Prenatal Care Defendants. The court held, inter alia, that since Evan was born alive, the Georgia Statute of Limitations regarding minors who are born alive was applicable. That provides that they must bring suit within two years after their fifth birthday for any alleged cause of action. Accordingly, the court reversed the judgment of the trial court
LEGAL COMMENTARY: Georgia law should have been applied to determine whether the claims asserted on behalf of Evan were within the limitations period. The applicable section of Georgia law provides, inter alia, that a minor has two years from the date of his fifth birthday within which to bring suit for medical malpractice if the cause of action arose before the minor attained the age of live years. Here, the cause of action arose before Evan's fifth birthday. Under Georgia law; Evan had up to two years after his fifth birthday to bring suit. Accordingly, the court determined thai Evan's parents, who had amended their complaint to add the Prenatal Care Defendants on April 20, 2004, had filed their suit against those defendants in a timely manner. Evan turned seven on April 27, 2004, and suit was commenced against the Prenatal Care Defendants on August 20, 2004, within the time permitted by the statute of limitations. Editor's Note: Nurses should be aware that, depending on the law in their particular state, they may he subject to suit by a minor child who at the time they rendered prenatal care, was a fetus in a mother-to-be, for whom they were rendering prenatal care and treatment. Nurses rendering such care and treatment have a responsibility to notify attending physicians and other health care providers that a particular patient may he a potential candidate for a cesarian section, if in their judgement there there is a sound basis for alerting all care, givers, as well as the patient that the patient may be a candidate for a cesarian section,. Failure to do so can result in nurses being joined in lawsuits against physicians and hospitals. Had the nurses and/or physicians who provided prenatal care in this case been proactive, they might have avoided having been joined as dependants in this suit.
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|Title Annotation:||Nursing Law Case of the Month|
|Author:||Tammelleo, A. David|
|Publication:||Nursing Law's Regan Report|
|Article Type:||Case overview|
|Date:||Aug 1, 2007|
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