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

the health department to investigate the source of the disease. It does not help to treat
a woman for syphilis in her first trimester if her consort remains infectious. If she
contracts the disease again in the third trimester, the risk of fetal infection is greater
than it was before. If the patient or the child is injured by the failure to comply with
testing and reporting laws, the physician can be held liable for negligence per se.
It is imperative to consider the possibility of HIV infection in every pregnant woman.
[ACOG Committee Opinion 85. Human Immunodeficiency Virus Infection:
Physicians’ Responsibilities. Committee on Ethics, September 1990.] Ideally,
women should be counseled and tested before becoming pregnant. [ACOG Technical
Bulletin 169. Human Immune Deficiency Virus Infections. December 1988.] It is
important to counsel and offer testing to every pregnant woman. In some urban
centers, more than 1% of pregnant women are already HIV infected, and the rate
appears to be increasing. [Novick LF, et al. New York State HIV Seroprevelance
Project, Chapter II Newborn Seroprevalence study: methods and results. Am J Pub
Health Supp. 1991;81:15–21.] As HIV becomes more prevalent, it is anticipated that
states will require prenatal testing for HIV. Until this happens, it is critical that
physicians stress the medical necessity of knowing a patient’s HIV status when
managing maternal and child health problems. If the patient refuses testing, this
should be carefully documented.
F. Medical Interventions
There is evidence that induction of labor and Cesarean sections have been overused in
the United States. This overuse has been driven by nonmedical factors such as fear of
legal liability, physician and patient convenience, and reimbursement policies that
encourage medical procedures. Unlike most other forms of defensive medicine,
however, there is a rational basis for the perception that performing a Cesarean section
makes it easier to defend a potential birth injury case. It is easier for a plaintiff’s
attorney to attack a physician’s decision to do nothing or to operate too late than it is to
prove technical errors in the performance of the Cesarean section.
More fundamentally, whereas a medically unnecessary Cesarean section subjects the
mother to operative risks and increased morbidity, these risks are inherent in the
procedure. If a proper informed consent is obtained or the jury does not believe that the
patient would have refused the operation had she been properly informed, it is difficult
to convince a jury that a patient should recover for the consequences of a properly
performed but unnecessary operation. Paradoxically, efforts to reduce unnecessary
medical interventions may exacerbate this problem.
As patients become more reticent to consent to Cesarean sections and induction of
labor, and insurance companies increase financial incentives not to perform these
interventions, the probability increases that necessary interventions will be delayed or
omitted. There is no evidence, however, that juries will accept cost containment as a
defense. Juries are also skeptical about a patient’s refusal to consent to needed
treatment. When the question is refusal of necessary care, juries tend to believe that
physicians ultimately can convince patients to consent. These factors require that
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