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After allegedly failing to notify a mother of her status as a hepatitis B carrier or to protect her baby from the virus at birth, six managed-care physicians may be liable to the child for medical malpractice, the Kansas Supreme Court ruled on Sept. 24 in Nold v. Binyon, No. 84,292. In a first-impression case, the court announced the general rule that while a woman is pregnant and intent on having a healthy baby, her doctors also have a doctor-patient relationship with the fetus. Named in the suit filed on behalf of the baby, Audra Nold, were the mother’s two primary care physicians (PCPs), two obstetricians, the baby’s pediatrician, a hospital resident and HCA Health Services Inc., which operates the Wesley Medical Center in Wichita, Kan. According to the court, the mother’s doctors recorded her hepatitis B status in her medical records so that gamma globulin and a vaccine could be given to the baby at birth, but the prenatal records did not make it on to hospital charts prior to delivery. No treatment was administered and the virus was transmitted to the baby. Arguing Audra’s case, Arden Bradshaw of Wichita’s Bradshaw, Johnson & Hund asked the court to rule that each treating physician had a duty to disclose the mother’s condition. But the trial court went further, instructing the jury that the duty of each doctor was not extinguished until the baby was effectively inoculated and was not excused just because another doctor had assumed primary care of the mother or the baby. A jury awarded Audra $800,000, finding Dr. Scott Moser, the obstetrician who delivered her, to be 90 percent at fault. The state supreme court agreed that a pregnant woman is entitled to be informed if tests reveal that she has a communicable disease transmissible to her baby during delivery and it agreed that the doctors owed a duty to the fetus “in the abstract.” But it curtailed the trial court’s rulings by holding that each doctor’s duty had to be established by expert testimony on the standard of care and it remanded the matter for a new trial. On remand, the doctors will be able to present testimony that once a pregnant patient is transferred to another doctor, the transferring doctor is governed by a different standard of care. Bradshaw said, “This is one of the first times the issue of a doctor’s duty to inform has come before a jury, outside of the traditional informed consent cases.” He added, “We were hoping a broader rule would emerge.” Bradshaw also said he does not think the results of the new trial will be much different and is disappointed that he will have to present his case all over again. But Moser’s attorney, Gary Austerman of Klenda, Mitchell, Austerman & Zuercher in Wichita, countered that “Dr. Moser had duties to the baby, but those duties ended when the pediatrician took over the baby’s care. My client depended on normal hospital procedures.” Citing a lack of evidence after it excluded a doctor’s expert testimony on the nurses’ negligence, the trial court had dismissed the case against the hospital. “Now that the hospital’s been brought back as a defendant,” Austerman said, “the fault allocation will be different.”

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