Steven E. North, Esq.

Zika is all over the news. This mosquito-borne disease can be so devastating to a fetus that re-booking vacation plans to avoid Zika-ridden areas is de riguer. Oddly, little is heard about cytomegalovirus (CMV), a more common flu-like virus often present in children and adults which, in a pregnant woman, can lead to deafness, brain death, and other catastrophic outcomes, including death, of the baby.

Like Zika, there is no vaccination or standard treatment for CMV, although there is some suggestion that new antiviral drugs may benefit newborns. A member of the herpes family, CMV can be transmitted by contact with saliva and/or urine. Pregnant women can get it from their diaper-wearing toddlers whose saliva is omnipresent; sharing eating utensils, too, can give the virus entry into a pregnant woman’s body.

Pregnant women, it is reported, do not worry about CMV; they do not know about it because obstetricians as a rule do not properly counsel pregnant woman about its dangers. In fact, criticism has been lodged against the American College of Obstetricians and Gynecologists, which discourages patient counseling, noting that “Patient instruction remains unproven as a method to reduce the risk of congenital CMV infection.”

On the other hand, one infectious disease specialist said that the failure to advise pregnant mothers about the dangers of CMV is a missed opportunity to save a baby from the devastating effects of the disease. Indeed, studies have shown that brief counseling about CMV including hygiene tips resulted in a decreased incidence of CMV in babies.

Is the absence of advice about CMV medical malpractice? The standard for establishing a medical malpractice case is whether a doctor departed from the accepted standards of practice in the community.

Unless community standards require that pregnant women are advised of the dangers of CMV and given instructions about symptoms to report along with hygiene advice, there is no basis for a lawsuit. Even if such a protocol is standard care in a community, it would be very difficult to establish to a jury’s satisfaction that the doctor failed to do so. Rarely is it found that the physician will admit to having failed to comply with community standards despite the patient’s insistence to the contrary.