Electronic Fetal Monitoring and The Law


  • Barbara F. Katz J.D.

    1. Deputy General Counsel for the Massachusetts Department of Public Health. She has spoken at several recent meetings of the International Childbirth Education Association on legal issues relating to obstetric care and patients' rights.
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  • This paper was adapted from a report prepared by a task force for a Consensus Development Conference on Antenatal Diagnosis, sponsored by the National Institute of Child Health and Human Development on March 5–7, 1979 in Bethesda, MD.


ABSTRACT: This paper concerns whether electronic fetal monitoring (EFM) has become a standard of care, such that physicians who do not use it can be held liable for injury to the offspring which would have been avoided by the use of EFM. Several defenses against potential liability are described. These include the “respectable minority rule” whereby physicians are protected when they choose between competing regimens of treatment; the “best judgement rule” by which it is the duty of a physician not to follow standards of care which show evidence of being erroneous; and the questioning of a standard of care as negligent in and of itself. These defenses, and the potential liability of a physician for over-utilizing a technology, or taking a course of action which unnecessarily causes surgery, hospitalization or increased cost, are illustrated with court decisions. Hospitals may be liable for loss or injury which results from failing to inform prospective patients that necessary staff and/or facilities are unavailable to complete an offered treatment and handle its complications. The potential impact of the new FDA medical device regulation, and of any future state or local regulations on EFM are discussed.