Public Health Law Map - Beta 5 - Medical and Public Health Law Site

covered in signs that ask women if they might be pregnant. Many internists, however,
do not ask a woman about pregnancy and contraception before prescribing a drug that
is not accepted for use in pregnancy. The risks, both medical and legal, are much
greater for some drugs than they are for a chest X ray.
On the other hand, there is no laboratory test that can establish pregnancy beyond
doubt. A physician should never tell a woman that she is or is not pregnant on the basis
of a laboratory test alone. A history and physical examination are as necessary to
making this diagnosis as any other. A patient who is assured that she is not pregnant
may expose herself to agents that can harm her fetus. Even if there are no expected
problems, failure to diagnose the pregnancy can interfere with the patient’s receiving
proper prenatal care and will reduce her options about abortion or prenatal diagnosis.
1. Maternal Disease
Pregnant women should be tested for diseases that directly affect their health and
thus secondarily affect the outcome of the pregnancy. Some of these tests are
mandated by law or public health regulation. Others are widely accepted as the
standard of care. Failing to diagnose or manage maternal illness properly is a major
source of liability in obstetrics. The problem arises because most pregnant women
are healthy. This makes it easy to attribute what would otherwise be symptomatic
illness to the normal effects of pregnancy.
Once the tests are done, the physician must be very careful to evaluate the results in
every patient and take action when necessary. In caring for a pregnant woman, a few
days can make a tremendous difference in the outcome, so a physician should pay
particular attention to the timely evaluation of test results. If a result has not been
received, it should be treated as bad news until the result is available. If the syphilis
serology or the blood type has been lost, it should be repeated promptly. The only
true negative screening test is the one that has been reported by the laboratory and
evaluated by the physician.
Tests should never be ordered simply as a defensive measure. It is legally more
dangerous not to act on a test that indicates maternal illness than not to do the test.
For example, if a patient has a negative rubella titer, her physician should be
concerned if she develops a rash. What may be dismissed as an allergy in an immune
patient should be worked up in a woman who may have rubella. In addition, this
patient should be immunized as soon as she delivers. The obstetrician who failed to
immunize a patient after her first pregnancy may be liable for a congenital rubella
baby from her second pregnancy.
2. Legally Mandated Testing
Although congenital rubella has almost been conquered, the risk of congenital
infection with herpes, hepatitis, syphilis, or HIV is increasing. [ACOG Technical
Bulletin 114. Perinatal Viral and Parasitic Infections. March 1988.] The laws
requiring the reporting of such infections should be carefully followed to allow
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