Genetic Testing Doctors' Liability Grows As Tests Become Widely Used

In Molloy, doctors were held accountable when Kimberly Molloy's second child was born with Fragile X Syndrome, a genetic disorder that causes retardation and autism, because of their failure to test her first child for the same disorder. The case will return to a lower court later this year.

Molloy is an example of a newer strain of wrongful conception litigation, where plaintiffs are alleging that had they known about the possibility of passing on an abnormal gene, they would not have conceived a child. “This court has opened up a Pandora's box,” said Katherine McBride of Minneapolis' Meagher & Geer, one of the attorneys for the plaintiff doctors in Molloy. “I think it puts doctors in a most troubling and difficult situation.”

The court ruled that in “this case, the patient suffered from a serious disorder that had a high probability of being genetically transmitted and for which a reliable and accepted test was widely available. The appellants should have foreseen that parents of childbearing years might conceive another child in the absence of knowledge of the genetic disorder.”

Inevitable Increase?

Molloy's attorney, Terry L. Wade of Minneapolis' Robins, Kaplan, Miller & Ciresi, shrugged off the idea that Molloy is a landmark case. But he added that “it may occur more frequently because of the evolution of genetic testing.” However, other attorneys echo McBride. “The human genome has been completely mapped,” said Stephen Winnick of the Law Offices of Stephen M. Winnick in Watertown, MA, who handled one of the pioneer wrongful birth cases, Vicarro v. Milunsky, 406 Mass. 777 (1990). “It's almost inevitable that there will be an increase in these cases.”

Wrongful conception cases aren't a new phenomenon — they were once the result of failed sterilization — but new possibilities are arising as genetic testing becomes more common. The newer class of wrongful conception cases differs slightly from wrongful birth litigation. Wrongful birth cases arise when a physician fails to detect or warn of genetic disorders early enough in a pregnancy for a woman to abort the child. Wrongful birth is controversial because of the claim that a woman would have aborted a baby if she knew of its genetic defects. Several states have abolished wrongful birth causes of action by case law or through legislation. They include Kentucky, Michigan, Utah, Minnesota and Georgia. Yet wrongful birth actions continue to be filed in other jurisdictions where the results are mixed. Many cases are settled confidentially.

In New Jersey, a state where courts have often ruled in favor of plaintiffs claiming wrongful conception, a Superior Court decided that a physician was negligent for not following up another physician's advice that a father be tested for the Tay-Sachs gene while his wife was pregnant. Geler v. Akawie, 358 N.J. Super. Ct. 437 (2003). The child was born with Tay-Sachs, a fatal genetic disorder that destroys the central nervous system and occurs most often in Eastern European Jews.

Attorney Dennis Donnelly of Chatham, NJ's Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, said that he's handling about 30 wrongful birth cases and is frequently asked to lecture on the topic to the medical community. “Genetic testing for an ever increasing number of genetic defects … will dramatically increase the number of negligent conception treatment or counseling claims,” Donnelly noted. Donnelly won a $3.84 million verdict this year in a case where physicians allegedly neglected to provide genetic testing, despite a woman's inquiries, when she was bleeding during the pregnancy. The child was born with Wolf-Hirschhorn syndrome, a disorder that causes severe growth retardation and mental retardation. Branca v. Miro, No. 0735/2001 (Rockland Co., N.Y., Sup. Ct.). Donnelly settled another case in 2003 for $1.2 million when a doctor allegedly failed to give genetic tests to a woman with unexplained retardation in a sibling. The woman bore a child with Fragile X Syndrome. Sabeh v. Khosla, No. L-6754-00 (Bergen Co. Super. Ct.).

In Ohio, the state Supreme Court has agreed to hear its first wrongful birth case, Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs., 2004 Ohio 3068. In Schirmer, a mother asked her doctors to test her fetus for a potential genetic defect that she was known to carry, to determine whether or not to have an abortion. The doctors provided incorrect results, and her child was born mentally and physically disabled. Schirmer's attorney, Cincinnati solo Mark Smith, said that the outcome will be a critical ruling for wrongful birth litigation in the state. “It's going to set precedent one way or the other, that's for sure,” said Smith. “But the defendants are playing the abortion card, which is very much a political decision, so we'll see what happens.”

A defense attorney for one of the doctors involved, Frank Woodside III of Dinsmore & Shohl in Cincinnati, agreed that it would be a case of first impression for the Ohio Supreme Court, but said that it closely mirrors the issue of wrongful life, which the Ohio courts don't recognize.

'Wrongful Life'

Wrongful life is similar to wrongful birth, except that the child assumes the position of the plaintiff, claiming that a doctor's failure to detect the disorder in the fetus resulted in his or her wrongful life. Many courts do not recognize the claim. “Even if the health care providers were somehow negligent in conducting the test, nevertheless, it is not a case where the health care providers caused the defect, they only allowed the birth,” Woodside asserted. “If you didn't cause the defect, can you be held liable for it? [Schirmer] is trying to shift the blame to the health care providers … What the parents are really saying is they don't want to bear the risks and saying that Michael Schirmer should never have been born, which brings you back to the wrongful life decision.”

Last February, a case in New York settled confidentially in favor of the plaintiff when a woman gave birth to a child with cystic fibrosis after undergoing in-vitro fertilization. The egg donor tested positive as a carrier of the disorder, yet the woman allegedly was never informed, nor was her husband tested. Paretta v. Medical Offices of Human Reproduction, No. 122555/00 (New York Co., N.Y., Sup. Ct., 2004).

Another Twist

A newer genre of cases involving genetic testing made its presence known last year when a woman claimed “wrongful abortion” in Georgia. Breyne v. Potter, No. A02A1946 (Ga. Ct. App., 2003). Linda Breyne had an abortion after a doctor warned her that a genetic test indicated that her child would be born with Down syndrome. He later told Breyne that he was mistaken — the child actually tested positive for a less severe disorder. Breyne claimed that had she known, she would not have had an abortion. The case settled confidentially in favor of the plaintiff.

There have been several other key cases involving genetic testing and a doctor's duty to warn in recent years. In a 2001 case, the Supreme Court of Virginia ruled that a doctor had a duty to test parents genetically because their first two children had blood disorders. When the couple gave birth to a third child with a severe blood disorder, the doctor was held liable in Didato v. Strehler, 262 Va. 617 (2001). The court said that the medical standard of care required a doctor to provide and perform genetic screening and counseling for the parents.

In one of the first “duty to warn” cases, the Florida Supreme Court ruled in 1995 that a physician is not obligated to warn a patient's family members of the patient's hereditary disorder, but must warn the patient about the disorder's hereditary nature. Pate v. Threlkel, 661 So.2d 278 (1995).

Court rulings across the country are showing that the increased use of genetic testing has substantially expanded physicians' liability for failure to counsel patients about hereditary disorders. In recent years courts in Minnesota, North Carolina, Massachusetts, New Jersey, Utah, Michigan, New York, Ohio, Georgia, Pennsylvania and Virginia have ruled on medical malpractice cases stemming from genetic testing issues. Decisions issued in those courts have tried to carve out rules on when physicians have a duty to relay information gleaned from genetic testing.

The cases have involved a number of issues, ranging from the chances of family members passing on an abnormal gene to a child, to whether parents can collect damages for conceiving or giving birth to a child with severe genetic defects due to a physician's failure to detect the likelihood of the disorder. In a landmark wrongful conception case, the Minnesota Supreme Court recently found that a doctor owes a patient's biological parents a duty of care if the results of a test or diagnosis could foreseeably injure them. Molloy v. Meier, 679 N.W.2d 711 (2004).

Molloy v. Meier

In Molloy, doctors were held accountable when Kimberly Molloy's second child was born with Fragile X Syndrome, a genetic disorder that causes retardation and autism, because of their failure to test her first child for the same disorder. The case will return to a lower court later this year.

Molloy is an example of a newer strain of wrongful conception litigation, where plaintiffs are alleging that had they known about the possibility of passing on an abnormal gene, they would not have conceived a child. “This court has opened up a Pandora's box,” said Katherine McBride of Minneapolis' Meagher & Geer, one of the attorneys for the plaintiff doctors in Molloy. “I think it puts doctors in a most troubling and difficult situation.”

The court ruled that in “this case, the patient suffered from a serious disorder that had a high probability of being genetically transmitted and for which a reliable and accepted test was widely available. The appellants should have foreseen that parents of childbearing years might conceive another child in the absence of knowledge of the genetic disorder.”

Inevitable Increase?

Molloy's attorney, Terry L. Wade of Minneapolis' Robins, Kaplan, Miller & Ciresi, shrugged off the idea that Molloy is a landmark case. But he added that “it may occur more frequently because of the evolution of genetic testing.” However, other attorneys echo McBride. “The human genome has been completely mapped,” said Stephen Winnick of the Law Offices of Stephen M. Winnick in Watertown, MA, who handled one of the pioneer wrongful birth cases, Vicarro v. Milunsky , 406 Mass. 777 (1990). “It's almost inevitable that there will be an increase in these cases.”

Wrongful conception cases aren't a new phenomenon — they were once the result of failed sterilization — but new possibilities are arising as genetic testing becomes more common. The newer class of wrongful conception cases differs slightly from wrongful birth litigation. Wrongful birth cases arise when a physician fails to detect or warn of genetic disorders early enough in a pregnancy for a woman to abort the child. Wrongful birth is controversial because of the claim that a woman would have aborted a baby if she knew of its genetic defects. Several states have abolished wrongful birth causes of action by case law or through legislation. They include Kentucky, Michigan, Utah, Minnesota and Georgia. Yet wrongful birth actions continue to be filed in other jurisdictions where the results are mixed. Many cases are settled confidentially.

In New Jersey, a state where courts have often ruled in favor of plaintiffs claiming wrongful conception, a Superior Court decided that a physician was negligent for not following up another physician's advice that a father be tested for the Tay-Sachs gene while his wife was pregnant. Geler v. Akawie , 358 N.J. Super. Ct. 437 (2003). The child was born with Tay-Sachs, a fatal genetic disorder that destroys the central nervous system and occurs most often in Eastern European Jews.

Attorney Dennis Donnelly of Chatham, NJ's Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, said that he's handling about 30 wrongful birth cases and is frequently asked to lecture on the topic to the medical community. “Genetic testing for an ever increasing number of genetic defects … will dramatically increase the number of negligent conception treatment or counseling claims,” Donnelly noted. Donnelly won a $3.84 million verdict this year in a case where physicians allegedly neglected to provide genetic testing, despite a woman's inquiries, when she was bleeding during the pregnancy. The child was born with Wolf-Hirschhorn syndrome, a disorder that causes severe growth retardation and mental retardation. Branca v. Miro, No. 0735/2001 (Rockland Co., N.Y., Sup. Ct.). Donnelly settled another case in 2003 for $1.2 million when a doctor allegedly failed to give genetic tests to a woman with unexplained retardation in a sibling. The woman bore a child with Fragile X Syndrome. Sabeh v. Khosla, No. L-6754-00 (Bergen Co. Super. Ct.).

In Ohio, the state Supreme Court has agreed to hear its first wrongful birth case, Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs ., 2004 Ohio 3068. In Schirmer, a mother asked her doctors to test her fetus for a potential genetic defect that she was known to carry, to determine whether or not to have an abortion. The doctors provided incorrect results, and her child was born mentally and physically disabled. Schirmer's attorney, Cincinnati solo Mark Smith, said that the outcome will be a critical ruling for wrongful birth litigation in the state. “It's going to set precedent one way or the other, that's for sure,” said Smith. “But the defendants are playing the abortion card, which is very much a political decision, so we'll see what happens.”

A defense attorney for one of the doctors involved, Frank Woodside III of Dinsmore & Shohl in Cincinnati, agreed that it would be a case of first impression for the Ohio Supreme Court, but said that it closely mirrors the issue of wrongful life, which the Ohio courts don't recognize.

'Wrongful Life'

Wrongful life is similar to wrongful birth, except that the child assumes the position of the plaintiff, claiming that a doctor's failure to detect the disorder in the fetus resulted in his or her wrongful life. Many courts do not recognize the claim. “Even if the health care providers were somehow negligent in conducting the test, nevertheless, it is not a case where the health care providers caused the defect, they only allowed the birth,” Woodside asserted. “If you didn't cause the defect, can you be held liable for it? [Schirmer] is trying to shift the blame to the health care providers … What the parents are really saying is they don't want to bear the risks and saying that Michael Schirmer should never have been born, which brings you back to the wrongful life decision.”

Last February, a case in New York settled confidentially in favor of the plaintiff when a woman gave birth to a child with cystic fibrosis after undergoing in-vitro fertilization. The egg donor tested positive as a carrier of the disorder, yet the woman allegedly was never informed, nor was her husband tested. Paretta v. Medical Offices of Human Reproduction, No. 122555/00 (New York Co., N.Y., Sup. Ct., 2004).

Another Twist

A newer genre of cases involving genetic testing made its presence known last year when a woman claimed “wrongful abortion” in Georgia. Breyne v. Potter, No. A02A1946 (Ga. Ct. App., 2003). Linda Breyne had an abortion after a doctor warned her that a genetic test indicated that her child would be born with Down syndrome. He later told Breyne that he was mistaken — the child actually tested positive for a less severe disorder. Breyne claimed that had she known, she would not have had an abortion. The case settled confidentially in favor of the plaintiff.

There have been several other key cases involving genetic testing and a doctor's duty to warn in recent years. In a 2001 case, the Supreme Court of Virginia ruled that a doctor had a duty to test parents genetically because their first two children had blood disorders. When the couple gave birth to a third child with a severe blood disorder, the doctor was held liable in Didato v. Strehler , 262 Va. 617 (2001). The court said that the medical standard of care required a doctor to provide and perform genetic screening and counseling for the parents.

In one of the first “duty to warn” cases, the Florida Supreme Court ruled in 1995 that a physician is not obligated to warn a patient's family members of the patient's hereditary disorder, but must warn the patient about the disorder's hereditary nature. Pate v. Threlkel , 661 So.2d 278 (1995).