Wrongful birth verdict overturned in NH
I posted this entry over in my NH Law Blog. It has relevance to this cerebral palsy law blog, so I thought I would post it here as well.
The New Hampshire Supreme Court has reversed a $2.3 million jury decision in a "wrongful birth"malpractice case against Dartmouth-Hitchcock Medical Center, ruling that the hospital sufficiently informed a couple about the potential for their unborn son to have significant birth defects.The full article follows in the extended body of this post.
Source: Someone emailed this to me, but I believe it came from the Valley News
Moultonboro 'Wrongful birth' case overturned Couple says Dartmouth-Hitchcock fell short
By JODIE TILLMAN
Valley News
T
he New Hampshire Supreme Court has reversed a $2.3 million jury decision in a "wrongful birth"malpractice case against Dartmouth-Hitchcock Medical Center, ruling that the hospital sufficiently informed a couple about the potential for their unborn son to have significant birth defects.
Sherry and Brad Hall of Moultonboro sued the hospital three years ago, saying they would have terminated the pregnancy had the hospital's genetic counselors and doctors more fully informed them of the extent of their child's disabilities, which stem from an extremely rare chromosomal disorder called partial trisomy 9q.
The Halls' son, Brandon, now 5, is severely retarded, uses a feeding tube, cannot walk and requires around-the-clock care, said the couple's lawyer, Steven Latici of Gilford. He said he plans to file a motion for the Supreme Court to reconsider its decision.
"They are emotionally devastated by this decision," Latici said of the Halls. "We think the court made significant interpretive errors."
DHMC lawyer Ron Snow of the Concord law firm Orr and Reno said that the high court was prudent in ruling that doctors must discuss potential outcomes but need not be "definitive" in their prognosis for an unborn child, particularly because current medical technology makes being definitive impossible in some cases.
The Halls brought the wrongful birth claim in Grafton County Superior Court against DHMC, cytogeneticist T.K. Mohandas and Dartmouth College, which is Mohandas'employer.
The claim against Mohandas alleged that he was medically negligent in reporting the fetus's genetic "karyotype"-- a digital image of its 23 pairs of chromosomes - as normal, when, in fact, it was not.
DHMC, the Halls said, was medically negligent because its prenatal genetic counseling team - made up of doctors and counselors -failed to provide "complete and accurate" information in a timely manner that would have allowed the couple to make an "informed decision" about whether to terminate the pregnancy.
The Grafton County jury in 2004 did not find Mohandas or Dartmouth College liable in the case, but it did rule against DHMC, which then asked Superior Court Judge Steven Houran to set aside the jury verdict because it stood in contradiction to the evidence. Houran denied the hospital's motion, and DHMC took the matter to the Supreme Court.
It was only the second ever "wrongful birth" lawsuit to reach the state's high court. Justices cited a 1986 decision that found that parents of a child born with severe defects could file a wrongful birth claim if their providers failed to inform them of an "increased possibility" of the child's problems.
Brad Hall testified that DHMC should have told them, "This is what's wrong with your baby and you need to consider termination."Justices said the couple cited no authority to support that contention.
Ethical implications
Beyond the issues of malpractice liability, the case also touched on the intricacies of genetic testing - and its broader ethical implications: What kind of message do such lawsuits send about how society values disabled people? Or, who can judge those parents who see on a daily basis the suffering of the most profoundly disabled children? And how does a woman's right to an abortion fit into the debate? Susan Crockin, a Massachusetts lawyer who specializes in reproductive law, said wrongful birth claims have been around for decades but have grown increasingly more complicated since prenatal genetic testing started to take off in the 1990s. She has dubbed such cases "reproductive wrongs."
Reproductive genetic testing has been used for decades to inform prospective parents about their risk of producing a child with a genetic disorder. Advances in recent years have made it possible to predict with varying certainty more than 1,000 types of disorders, such as Down syndrome. One motivation for "wrongful birth" suits is to seek financial resources to help pay the enormous costs of raising children with serious birth defects, said Andy Imparato, president of the American Association of People with Disabilities.
"To the extent that there's potential for liability, you can't argue with that," he said. "I try not to blame the parents who bring these kinds of cases." But Imparato said he couldn't square the essential argument in such cases with respect for people who live with disabilities. "It can reinforce the widely held notion that a disability is a fate worse than death," he said.
The Halls have indicated they will not institutionalize their son, and Sherry Hall is his full-time caretaker while her husband works at his home repair business, said Latici, their lawyer. The couple loves their son, he said, "and they are two of the most dedicated parents I've ever met in my life."
That makes these types of cases particularly complicated. Though they love Brandon, they are also arguing in court that they would not have had him if they had known just how his life would have turned out, Latici said. He recalled that he asked Brad Hall during the trial if his son would have been better off not born. Brad Hall "sat there and choked up and said if (Brandon) had the ability to communicate he (would say he) would rather not have been born," Latici said. He said the Halls, who are currently out of the state, are not speaking to the press.
The court's account
The Supreme Court's decision provides the following account of the case:
Sherry Hall learned she was pregnant in December 2000. Three months later, her prenatal care provider in Moultonboro referred her to DHMC in Lebanon for genetic counseling after a test showed the fetus carried an elevated risk for a chromosomal disorder called trisomy 18.
The Halls met that month with Valerie Hani Lacroix, a certified genetic counselor at DHMC, and Emily Baker, a physician. An ultrasound revealed nothing out of the ordinary - with the exception of clenched hands, a well-known marker for the disorder.
The doctor recommended an amniocentesis to get more information about the fetus, and Hall told doctors "she would terminate her pregnancy if the testing revealed any chromosome abnormalities."
The fluid sample from the amniocentesis was sent to a cytogenetics lab run by T.K. Mohandas, an employee of Dartmouth College. Hall was told that it would be at least two weeks before she could get the results; about a week later, she told Lacroix that she wanted to terminate her pregnancy. Lacroix urged her to wait for the results of the amniocentesis before making a decision.
The lab examined the fluid and issued a report saying the digital image of the fetus's chromosomes were characteristic of a normal male. Trisomy 18 was ruled out, and on March 20, 2001, Lacroix called the Halls and told them they had a "normal, healthy baby boy."She added that the clenched hands were often indicative of a "simian crease," a single crease across the palm of the hand, which the Halls understood to have no genetic significance. As a result of the report, the Halls were no longer talking about terminating the pregnancy.
A week later, however, a follow-up ultrasound revealed that in addition to the clenched fists there also was the possibility of a congenital deformity in which the foot is shaped like a convex, rocker bottom. Upon reviewing the latest ultrasound, Lacroix issued an order to the laboratory to save any remaining amniotic fluid for further testing. She did not share this information with the Halls. No member of the DHMC genetic counseling team contacted the Halls about the follow-up ultrasound results.
The next time the Halls heard from DHMC was to schedule another ultrasound, on April 24, 2001. Following the ultrasound, the couple met with Michelle Lauria, a DHMC physician. At the time of the meeting, Hall was at almost 24 weeks of gestation; DHMC performs abortions only up to 22 weeks of gestation. Boston-area providers, however, terminate pregnancies up to 24 weeks of gestation.
Lauria told the Halls that in addition to the continually clenched hands and the possible rocker-bottom foot, the fetus also exhibited additional problems on the ultrasound, including an unusually small lower jaw, possible heart problems and a possible head deformity that suggested an underlying brain abnormality. During that meeting, Lauria discussed a broad range of possibilities, ranging from a "very minor problem that perhaps would require some physical therapy or maybe some surgery, all the way to be just severely affected, dying at birth or being severely mentally retarded."
Transferring care
The Halls decided at that point to transfer her medical care to Brigham & Women's Hospital in Boston. An additional ultrasound there showed the clenched hands and small lower jaw but did not detect the other problems DHMC found, and Hall decided to carry the fetus to term.
On July 25, 2001, Brandon Hall was born with multiple severe congenital anomalies. A cytogeneticist at Brigham & Women's Hospital examined a sample of blood taken from the umbilical cord, "looking carefully for something abnormal."Eventually, the lab found that one of his chromosomes had a slightly unusual appearance. Given that, the lab called for parental blood samples.
When the lab examined a blood sample of the child's father, it concluded he had what is known as a "balanced translocation": He had the correct number of chromosomes, but two pieces of material had switched positions. Like most people who have such a trait, Brad Hall does not suffer from any physical or mental abnormalities. But because the child had inherited half of his chromosomes from his father and half from his mother, he had an "unbalanced translocation."The particular switch of chromosomal material was diagnosed as partial trisomy 9q.
"This diagnosis was more than extremely rare," the court notes. "It was the first reported occurrence of this particular configuration of chromosomal abnormality."
Crockin, the Massachusetts attorney who studies reproductive law, said her understanding of the justices' opinion is that the rarity of the abnormality played into their decision.
She said the Halls "make a sympathetic argument" that they should know probability, not just possibility, of the defects. "If it was a less rare disorder," she said, "it might've gone the other way."
I just came across this posting and I thought that I would post a response to put a different perspective on the outcome of the Supreme Court case. The jury in this case returned a defendants verdict in favor of the cytogeneticist who misinterpreted the chromosome study. To those of you who are interested in standard of care issues there is no standard of care in the interpretation of cytogentic studies. To be sure there are standard tests that are run but the final interepreation of matched chromosomes is a judgment call of the cytogenticist and he alone determines if further testing is warranted. I agree with the analysis that the Court considered the rarity of the chromosome disorder. However the Court ignored the uncontroverted evidence from every single expert that if the lab had gone on to do parental blood studies that the exact genetic anomaly would have been detected despite its rarity.
The jury did however return a verdict in favor of plaintiffs against the hospital for the negligence of its genetic counselor who failed to coordinate the treatment of the patient among the cytogenetic team comprised of the lab, the counselor, clinical geneticists and the maternal fetal medicine team. Specifically the jury found that the counselor failed to timely report to the patient the results of an adnormal ultrasound study done after the report of the normal chromosome study by the lab. More importantly, the counselor on her own intiative, after getting the abnormal US study went to the lab and order the lab to freeze the remaining amniotic cells. This effectiviely killed the cells for futher cytogentic analysis and therefore there was not time to repeat the chromosome study within the 22 time limit.
The case was appealed on the grounds that the plaintiffs failed to introduce expert testimony as to the likely outcome of a meeting between the genetic team had one been called. There was ample evidence from plaintiffs two experts that if the team meeting had been called that further genetic testing would have been conducted and the disorder would have been discovered. The Supreme Court ignored that evidence and instead decided this case on an issue that was not preserved in the trial, was not briefed and not argued. Therefore the plaintiffs never had an opportunity to address the very issue on which the case was deciced. The court ruled that our genetic counseling expert was required to testify that the plaintiff could not have obtained an abortion after 22 weeks anywhere in the country. The client was discharged from Dartmouth on April 24 of 2001 and as of that date the records indicate that she was at 23.4 weeks gestational age. Massachusetts prohibits abortions after 24 weeks. The court ruled that that there was a window of three or four days in which she could have terminated the pregnancy in Massachusetts and our expert did not testify that she could not have termianted within that time frame. The reality of course is that Massachusetts doctors do not accept cases after 23 weeks because gestational age is an estimate and a doctor could be criminally prosecuted if the fetus was subsegently determined to be more than 24 weeks old. The court also ignored the testimony of the nurse mid-wife who had experience in arranging late second term abortions in Massachusetts and she testified that plaintiff could not have terminated in Massachusetts after her discharge from Dartmouth. The Court also misinterpreted Massachusetts abortion law by stating in the opinion that abortion was available in Massachusetts on demand without proof of medical necessity. This is just simply wrong and we pointed this out to the court and the court ignored it.
The Supreme Court went out of its way to kill this case. It went outside the record and ignored a long standing tradition of not deciding cases on issues not preserved for appeal. So the question is why? This case was decided by a three judge panel all of whom were Catholic. In fact one of the justices had actually entered the seminary for one year before becoming a lawyer. Another judge had suffered a still born child. None of this was disclosed to the parties.
New Hamphsire has killed wrongful birth claims by essentially holding that a woman who bring a wrongful birth claim must now prove that she could not have obtained a termination anywhere in the country. Why stop there; what about the rest of the world; what about Canada?
The Court ignored the fact that 22 weeks is considered by most doctors as the date of viability of the fetus. Doctors in New Hampshire don't do abortions after 22 weeks not because there is a statute preventing but for purely personal reasons; they don't want to terminate a pregnancy that is medically viable. Why shouldn't expectant mothers be entitled to the same rights?
Thank You Steve. Great followup comments.