Nursing & Healthcare Directories

CytomegaloVirus Test Result, Misinterpreted By Nurse.
Did Negligence Lead to Child With Birth Defects?
Duplan v. Harper, 188 F.3d 1195 OK - (1999).

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This Case Review May Be Cited As:

Lopez, Andrew. January 13, 2000. Cytomegalovirus Test Result, Misinterpreted By Nurse. Did Negligence Lead to Child With Birth Defects? Clinical Case of The Week. Retrieved (insert date) from the World Wide Web:

Summary: Nurses access and report confidential and sensitive test results to case managers, insurance companies, physicians and other nurses as a matter of course each day. It is commonly accepted that only a physician can interpret what a test result implies for a specific patient. Nurses by training have a general knowledge of basic lab values and what they may represent. In this case, a pregnant woman with an active Cytomegalovirus infection was misinformed by a nurse reporting a result. Had an accurate explanation been given, a therapeutic abortion might have been performed.

"Cytomegalovirus is found all over the world, and it usually causes no symptoms. In the U.S., one percent of infants are infected at birth; by age six months, another 10-60 percent of infants will become infected, most often from members of their own families. After their first birthday, children tend to be most at risk for cytomegalovirus if they attend day care, where rates of infection can be as high as 80 percent."1

The pregnant woman was in her first trimester. She took ill and discovered that Cytomegalovirus was involved. The patient was aware that Cytomegalovirus was associated with birth defects when contracted during a pregnancy.

Fearing harm to her child, an obstetrician was consulted. The doctor had her worked up to determine the nature and extent of the infection. The results would show that the woman had an active infection with Cytomegalovirus noted as the primary infecting organism.

"A newborn can be infected with Cytomegalovirus before birth - almost always because the child's mother developed a first-time Cytomegalovirus infection during pregnancy. Most of the time the infected infant shows no symptoms at birth, but in 5-25 percent of cases, symptoms appear over the next several years. These symptoms may include neurologic and developmental problems, sight or hearing problems, and dental abnormalities. Rarely, a newborn may have a life-threatening infection."2

Cytomegalovirus is a common virus most people are exposed to by the time they are teenagers. It is usually a benign exposure, except in the case of a pregnant woman or an immunosupressed patient (one with AIDS, undergoing Chemotherapy, a recent Organ Transplant recipient, etc)

"Cytomegalovirus may cause serious infections in persons who have received organ transplants, and in persons whose immune systems are weakened (immunocompromised) for any reason, especially those with HIV - AIDS. In persons with AIDS, cytomegalovirus may infect the retina of the eye and causes blindness."1

In a woman with an active pregnancy, this finding would represent a serious risk of birth defects in the developing fetus.

It is commonly known and recognized that an active CMV infection in a pregnant woman can have devastating effects on the unborn child.

"Researchers have now determined that Congenital CMV is the most common infectious cause of mental retardation in the United States. It leads to more cases of mental disability each year than does the much better-known Down Syndrome. Additionally, CMV holds another dubious distinction as the leading cause of non-hereditary, sensorineural deafness. It is thought to be a leading cause of deafness overall. Other common sequelae of Congenital CMV include blindness, intrauterine growth retardation (IUGR), jaundice, pneumonia, microcephaly and numerous others."2

It would have been prudent at this point, for the physician to discuss the possibility of a child with birth defects being born. With this knowledge the woman and her husband could have made an informed decision on whether or not to continue the pregnancy.

Instead, the physician instructed a nurse to inform the patient of the test result. Apparently there was no further follow up with the patient by the physician to discuss the results.

Specifically, the physician did not ask the woman if she wished to continue the pregnancy in lieu of the high risk of birth defects.

When the nurse spoke to the patient, she initially only told her the test was "positive." The patient not understanding what that meant called the nurse to question her again about it.

At this point, the nurse should have either asked the physician, or told the patient she needed to talk to the doctor about what the test result meant and how it might affect her pregnancy.

Instead, the nurse explained what she thought was correct to the patient.

The pregnant woman left the conversation believing that there was little or no risk of birth defects to her child. The nurse had stated the positive results of the test meant "she was immune" to CMV.

No mention of the high risk of birth defects due to the active cytomegalovirus infection were disclosed during the conversation by the nurse. No further discussion of the issue was documented between the patient and the Obstetrician.

The pregnancy would continue to term. The child when born had severe birth defects characteristic of a cytomegalovirus infection during pregnancy.

The parents brought suit for wrongful birth against the clinic phyiscian, nurse and agency contracting for the U.S. Air Force at the time.

The suit alleged that the birth of a severely deformed child could have been prevented or at least anticipated. They argued that had an accurate interpretation of the test result been presented, the high-risk pregnancy would have been terminated.

The pregnant woman was prepared to request a therapeutic abortion when the initial possibility of CMV infection and birth defects was made known to her. Based on the misinformation presented by the nurse, the decision was made to continue the pregnancy.

The child would require significant supervision and medical care throughout it's life.

The Court award was in excess of $3,000,000.

Questions to be answered:

1. Was the nurse acting within her scope of practice when she "interpreted" the test result as it applied to that patient's condition?

2. Was an accurate description provided to the pregnant woman of what the test result meant and potential risks it could pose for her unborn child.

3. Was the physician ultimately responsible for informing the patient of the potential consequences of continuing the pregnancy.

The nursing scope of practice as defined in The State Nurse Practice Acts do not include "interpretation" of test results as they apply to patients. That is within the scope of practice of a physician.

It might be acceptable for a nurse to tell a patient that a positive pregnancy test in a female can signal either an active pregnancy, ectopic or a testicular tumor in a male patient. It is not acceptable or within the defined scope of a nurse's duties to state what that test result indicates for a specific patient.

To state that a test result has a definite indication for a particular patient requires the ability to diagnose a medical condition. That is not the responsibility or domain of the practicing nurse.

Had the physician told the nurse to tell the patient that the positive CMV infection had the potential for birth defects, the nurse would simply have been passing the information on from the physician with his authorization.

The argument can be made that a practicing licensed nurse in an Obstetrician's office is reasonably expected to know and be familiar with CMV. This was not the case.

It seems the doctor assumed that the nurse was familiar with the disease process and implications of a cytomegalovirus infection in a pregnant woman.

That was not the situation in this case. The nurse went beyond telling the patient that the test was "positive" by adding it MEANT that the patient was immune to CMV.

It is clear that the nurse did not give an accurate interpretation of the test result's true meaning. She stated that the test result meant the patient was "immune" to CMV and that it would pose no threat to the pregnancy.

This amounts to negligence in that the information given was incorrect and even worse, misleading. It did not inform the pregnant woman of the possible risks and consequences of continuing her pregnancy despite the CMV infection.

The plaintiff justifiably focused the case on the nurse that gave the results interpretation and the physician who had ordered the test.

The physician, aware of the pregnant woman's active CMV infection, left the situation entirely in the hands of the nurse. Did he assume that the nurse or patient was aware of what the test result might implicate? Apparently yes.

Did the physician instruct the nurse to discuss the possibility of birth defects or therapeutic abortion with the patient. If he had, it would be expected that "something would have clicked" in the nurse's mind that the test result meant something other than the patient was immune to CMV.

The nurse in this case relied on inaccurate information, perhaps on memory. It may never have occurred to her that she should discuss the possibility of severe birth defects in the unborn child with the mother.

The mother never had the option to consider the likelihood of her child being born with deformities. Because neither the physican or the nurse informed her properly, she could not discuss the issue with her husband.

Had they been aware that the pregnancy was high risk, it is likely they would have chosen to end the pregnancy. This option was through negligence, denied them.

Both the trial and appeals court in their rulings recognized:

"a wrongful birth suit is designed to compensate parents for being deprived of the option of making an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child."3

A nurse when unsure of a physician's order, it is the physician alone who can clarify the situation with certainty. This can apply to the meaning of a test result, why a patient is receiving a drug , undergoing a procedure, owes a duty to the patient to clarify the situation with the ordering physician. It is the physcian, not the nurse who is ultimately responsible for clarifying orders and interpreting test results.

Related Link Sections:

Clinical Charting and Documentation, Nurses Notes, Direct Patient Care

Direct Patient Care

Infertility, Contraception & Fertilization, Direct Patient Care Links

Informed Consent

Midwifery Links

Neonatal Intensive Care (NICU) Nurses

Nurse Practice Acts, Legal and Medical Links

Nursing Professional Malpractice & Liability Insurance

Obstetric Nurses

Torts Law & Personal Injury, Legal Resources

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Downey v. Mobile Infirmary Med. Ctr. - 662 So. 2d 1152 (1995).

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July 11, 1999: Nursing Home Rehabilitation Stay Proves Terminal. Was Quality of Care Given An Issue?
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Lloyd v. County of Du Page, 707 NE.2d 1252 - IL (1999)


1. Granju, Katie Allison. No Date Given. "CMV-The Most Dangerous Pregnancy Complication You Never Heard Of."

2. No Date Given. Childhood Infections - Cytomegalovirus (CMV). Nemours Center for Children's Health Media. Retrieved December 13, 1999 from the World Wide Web:

3. 40 RRNL 6 (November 1999)

Send comments and mail to Andrew Lopez, RN

Created on January 30, 2000

Last updated by Andrew Lopez, RN on March 23, 2017

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