Ermoian v . Desert Hospital 152 Cal. App 4 th 475, 61 Cal Rptr 3d 754

1. Ermoianv. Desert Hospital152 Cal. App 4th 475, 61 Cal Rptr 3d 754 Legal Guru Case Presentation By Kristina Begres

2. FACTS • In 1994, the hospital operated Desert Hospital Outpatient Maternity Services Clinic • The hospital contracted with a corporation controlled by Morton Gubin, M.D., which employed Masami Ogata, M.D. to provide obstetrician services to the clinic’s patients • The physicians are not employees of the Hospital and they have a private practice located elsewhere • January 1994, Jackie Shahan went to the hospital ER and was told she was pregnant and was referred to Drs. Gubin and Ogata

3. FACTS • She here filled out a questionnaire stating she wanted to have the baby and hoped to have a healthy baby • Shahan signed a Patient Rights and Responsibilities document with a witness present that gave her the right to receive any explanations for any tests or procedures as well as gave her the right to review her medical record with a doctor or nurse to participate in plans about her care or her babies care during pregnancy, labor, delivery, or postpartum • Shahan also signed an Informed Consent form for alpha-fetoprotein testing

4. What is alpha-fetoprotein testing ?

5. alpha-fetoprotein testing • Is a blood test used to detect fetuses with neural tube defects, such as spina bifida and anencephaly • Can also be used as a screening test for other genetic problems such as down syndrome and edwards syndrome

6. facts • January 25th 1994, Shahan met with Dr. Gubin where she confronted him about the option of abortion • Dr. Gubin told her he did not perform abortions and she would have to go somewhere else but after she heard the babies heartbeat she decided she would not have one • She then met with Sterling a registered nurse who scheduled an ultrasound on January 28th • On the 28th she had the ultrasound and was told that her baby (Amanda) “was fine”

7. facts • Dr. Ogata met with Shahan on February 22nd to assure her that her baby was healthy • On March 21st, Shahan called Sterling complaining of abdominal pain and hallucinations and was told to go to the hospital • At the hospital she underwent another ultrasound although Shahan claimed she “was not aware that an ultrasound was being done”

8. facts • The ultrasound report stated, • “the fetus is viable and scans on the fetal head show minimal prominence of the lateral ventricles… follow-up ultrasound scanning is recommended… no morphologic abnormalities are seen within the fetal skeleton or body”

9. facts • On March 22nd, Dr. Ogata examined Shahan at the clinic, but had not received the written report of the ultrasound yet • Sterling’s notes for the 22nd visit said that the doctor listened to heart tones and took measurements and suggested a repeat ultrasound next visit to determine the size of the baby vs. the date of delivery • Sterling also told Shahan about bed rest and symptoms of pre-term labor as well as told her they would contact her if there were any problems from the previous ultrasound

10. facts • On March 29th, Shahan had another visit where a ultrasound was not given because the new measurements were very good according to her due date • On April 11th, Shahan called the clinic with complaints of headaches, cramping, spotting, hallucinations, and vomiting. They told her to get bed rest and come in on April 19th • Her April 19th visit she was told the previous ultrasound came back fine and that she might be going into premature labor and to rest

11. facts • On May 6th, Dr. Ogata ordered an ultrasound for Shahan to be performed on May 9th • This ultrasound stated, • “there is evidence of microcephaly, which may be worsening from the previous study and there is also evidence of enlargement of the lateral ventricles, probably not significantly changed”

12. What is Microcephaly ?

13. microcephaly • Microcephaly is a condition where the head (circumference) is smaller than normal. • Microcephalymay be caused by genetic abnormalities or by drugs, alcohol, certain viruses, and toxins that are exposed to the fetus during pregnancy and damage the developing brain tissue • Signs and symptoms of microcephaly may include a smaller than normal head circumference that usually remains smaller than normal as the child grows, dwarfism or short stature, delayed motor and speech functions, mental retardation, seizures, facial distortions…

14. microcephaly

15. facts • Shahan missed her scheduled appointment at the clinic on May 10th and did not contact the clinic after the ultrasound • On May 13th, she was admitted to the hospital with premature rupture of membranes and two days later she had Amanda • Amanda was born with abnormalities and is microcephalic, mentally retarded, and according to a Pediatric Neurologist, will always be a child under the age of one. She also suffers from cerebal palsy on both sides of her body • These conditions could not have been cured in the womb • Shahan claims she would’ve had an abortion if she had known the fetus would be born with severe injury

16. Expert testimony • Dr. Gubin stated he believed in 1994 that it was illegal to perform or recommend abortion of a viable fetus • Dr. Filly testified that the March 21st ultrasound did not absolutely indicate a birth defect, but there was 80% chance of anomaly and that the fetus was not viable

17. Expert testimony • Dr. Cutler testified that Sterling’s conduct in the case fell below the applicable standard of care, including her failure to inform Shahan of potential defects from the March 21st ultrasound, the failure to seek referral to a specialist, the failure to ensure follow up ultrasound was performed in timely manner, and the failure to inform Shahan of her options • Dr. Sollman testified that the March 21st ultrasound showed an abnormal result indicating potential brain damage leading to mental retardation, blindness, or deafness

18. Procedure Court Affirmed the Trial Courts Judgment

19. What is the issue? ?

20. issue Whether or not the clinic physicians and nurses are acting under Apparent Authority and whether or not they were negligent?

21. decision The court affirmed the judgment, stating that although the physicians were acting as Apparent Agents, they were not negligent in this case

22. Rule-Black Letter Law • Apparent Authority is when you believe an agent was acting for a principal based on actions. Apparent Authority includes 2 elements: • (1) principal held out supposed agent as an agent • And • (2) it was reasonable of the 3rd party to rely on that representation • Negligence is failing to take proper care in doing something.

23. Reasoning-apparent authority They found that the trial court reasonably concluded that the two physician’s that the child’s mother had been referred to for care were not the employees of the hospital, but were physicians with a private practice who contracted with the hospital to perform obstetric services at its outpatient clinic. Substantial evidence did not exist to support the trial court’s implied finding that the physicians were not apparent agents of the hospital. The evidence showed that the outpatient clinic was a part of the hospital.

24. Reasoning-negligence The court also stated that the report of an ultrasound stating that there was evidence of microcephaly was not received by the clinic until after the child was born. The physicians could not be negligent for failing to advise the mother of the alternative of an abortion based upon ultrasound results they did not have knowledge of.

25. WORKS CITED LEXISNEXIS LAW CASE: 152 Cal. App 4th 475, 61 Cal Rptr 3d 754 MEDICAL INFORMATION: www.Medicinenet.com www.webmd.com

26. Thank you! QUESTIONS? COMMENTS? CONCERNS? AND OF COURSE COMPLIMENTS 