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Burying Your Head in the Sand is Not Going to Make a Potentially Bad Result Go Away

Take charge of your health care!

Written by Patricia I. James**

Today I present to you Walker v. Sonora Regional Medical Center. 202 Cal.App.4th 948 (2012). The basic issue was whether a hospital is liable due to its failure to notify a woman that she was a carrier of cystic fibrosis.

The facts are that, subsequent to her first miscarriage, Amber Walker (“Amber”) again became pregnant. She was a patient of Donavon Teel, M.D. (“Dr. Teel”). He ordered routine prenatal laboratory tests which included a cystic fibrosis screening test. 1  Amber went to the outpatient laboratory at Defendant Sonora Regional Medical Center (“Hospital”) for the cystic fibrosis screening. A blood specimen was taken but the hospital sent it to an outside laboratory for the genetic testing. The result showed that Amber was a carrier. The laboratory sent the results to the Hospital on February 3, 2005 which, in turn, conveyed the results to Dr. Teel. He made notations on that report to review the chart and put a circle around the results so he would be sure to inform Amber of the results at her upcoming appointment. That appointment was set for February 15, 2005. By that time, she had experienced another miscarriage. Unfortunately, Dr. Teel failed to inform her of the test results at that appointment.

On June 28, 2005, Amber returned to Dr. Teel’s office at which time she was found to be five to six weeks pregnant. During the course of her pregnancy, Amber had nine additional appointments with Dr. Teel, none of which resulted in the disclosure of the positive cystic fibrosis test.

On February 12, 2006, Amber gave birth to her daughter, Payton. On October 10, 2007, Payton was officially diagnosed with cystic fibrosis.

On July 7, 2007, Amber and her husband, Adam, filed a complaint against, among others, Dr. Teel and the Hospital. They alleged that, had they been advised of the risk that their offspring would have cystic fibrosis, they would not have conceived Payton.

They alleged four causes of action. Two were for medical negligence against all defendants on behalf of Payton and Amber and Adam, respectively. The third alleged corporate negligence against the Hospital stating that, as a hospital, it owed a duty to (I) directly inform and counsel Amber concerning the laboratory results; (ii) invoke policies to ensure that Amber would be informed and counseled concerning the laboratory results; and (iii) use reasonable care in selecting and supervising staff physicians such as Dr. Teel. The third cause of action also included a potential claim that Dr. Teel was the Hospital’s ostensible agent. Finally, they alleged negligent infliction of emotional distress which was based on the negligence allegations set forth in the first three causes of action.

The Hospital moved for summary judgment2 primarily on the ground that it had no duty to directly notify Amber of the laboratory results. I am only going to address that issue simply because I find it the most interesting. You don’t really want to read about ostensible agency, do you?

According to the Walker case, federal regulations governing clinical laboratories provide that medical tests are to be released “only to authorized persons and, if applicable, the individual responsible for using the test results and the laboratory that initially requested the test.” Id. at page 960-961. “An “[a]uthorized person” is defined as “an individual authorized under State law to order tests or receive test results, or both.” Id. at page 961.

California law defines these “authorized persons” to whom such laboratory reports may be released as licensed medical professionals (e.g. the doctors or other licensees who ordered the tests). In other words, the statute establishes a standard protocol that clinical laboratory reports are made to the physician who ordered the test, not to the patient for whom the test was ultimately performed. Of course, upon receipt of the test results, the physician would then presumably inform his or her patient of any important or material results and the medical significance thereof, within the context of the existing physician -patient relationship.” Id.

The court went on to state that this rule makes sense since “the physician who ordered a medical test is likely to be the professional who can best explain the meaning and significance of the test results to the patient in the context of that patient’s individual circumstances.” Id. at page 962. The court concluded that the Hospital satisfied its duty of care by promptly and accurately transmitting the laboratory results to the authorized person to whom the results may be sent, i.e., Dr. Teel.

Therefore, the facts not being in dispute, and as a matter of law, the Hospital was not liable to tell Amber about the results of her test. Its sole duty under the circumstances was to transmit the laboratory results to Dr. Teel, which it did. It turn, it was Dr. Teel’s responsibility to inform and counsel his patient regarding these results.

Hopefully, you found this case to be of some interest but I bring it up merely as a springboard for my real problem with these facts. What was not addressed in the case, because it was not an issue on appeal, was Amber’s potential comparative negligence, i.e., Plaintiff’s total damages are not recoverable to the extent of his or her own negligence contributed to the injuries. Rather, the awardable damages must be proportionately reduced to reflect the percentage of plaintiff’s fault. Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 828-829.

Dr. Teel, a medical group and the nurse practitioner were dismissed from the case. Whether that was based on a settlement or otherwise, I will not speculate. However, since the Hospital was not liable for telling Amber about the results, I would surmise that at least Dr. Teel would have had the benefit of the comparative negligence defense.

Health and Safety Code section 123148(a) states, in so many words, that the health care provider, e.g., a doctor, who requested that a laboratory test be done, shall provide the results to the patient if it is requested by the patient, either orally or in writing. What I find mind-boggling is that Amber admitted that she never made a request for her laboratory results.

Additionally, a nurse practitioner, who had filled out a new prenatal chart during Amber’s office visit on July 13, 2005, wrote that Amber had declined the cystic fibrosis screening since her prior test was negative. Since she denies ever saying that, this indicates to me that she did not know one way or the other what the test results were, i.e., SHE NEVER ASKED ABOUT HER TEST RESULTS. Correct me if I’m wrong here but, if she had asked about this test result, there would have been no Payton (remember, they said that, had they been advised of the risk that their offspring would have cystic fibrosis, they would not have conceived Payton, see above) and, therefore, there would not have been the need for this lawsuit.

Let’s put it this way. You know you have been tested for…. whatever. Why would you not ask about the outcome? Fear? As the title says, burying your head in the sand is not going to make a potentially bad result go away. On the other hand, the result could be good. We have to take some personal responsibility and be pro-active in our own health care.

I believe that there is a lesson to be learned from this. That lesson is quite simple: If you have any medical testing done, ASK FOR THE RESULTS!

FN1 The purpose of that test is to determine whether a person has a genetic predisposition to having a child with cystic fibrosis. If the test is positive, it means that the person is a “carrier” and the chances of that person having a child with cystic fibrosis is one in four if his or her reproductive partner is also a carrier.

FN2 See Post #3, FN 4.

**No portion of this Post is intended to constitute legal advice. The views expressed are solely those of the author.