Parents Can Sue Genetics Doctor For Handicapped Child

By Ertel Berry, Legal Editor

A couple whose son was born with sickle cell anemia can sue a doctor for not disclosing the risk of genetic disease, the Appeals Court held May 20.

The ruling is the first time that a North Carolina appellate court has allowed parents to sue over negligent genetic counseling. Similar actions are permitted in 22 other states. Gene testing has become more common as women wait later in life to start families.

In another first, the panel also allowed the plaintiffs to seek not only the expenses related to the pregnancy, but also the extra costs of rearing a child with sickle cell disease.

The case is McAllister v. Ha (North Carolina Lawyers Weekly No. 7-07-0703, 8 pages). The opinion was written by Judge K. Edward Greene. Judges Patricia Timmons-Goodson and James A. Wynn Jr. concurred.

The parents in McAllister sought genetic counseling before the pregnancy. They claimed their doctor, who practices family medicine, failed to tell them their children had a one-in-four chance of developing sickle cell problems.

That error deprived them of information they needed to decide whether to have any more children, the plaintiffs alleged.

That allegation stated a claim for wrongful conception, the court said. A 1985 Supreme Court case, Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528, already bars claims for wrongful birth.

The plaintiffs’ attorney, Bill Britt of Lumberton, said the line between wrongful birth and wrongful conception claims may depend in part on timing.

“In wrongful birth claims, the parents know after conception that it’s going to be a bad fetus and don’t have the opportunity for an abortion,” he said. “In wrongful conception, the parents are deprived, prior to conception, of an informed choice about whether or not to get pregnant.”

The plaintiffs’ doctor will ask for discretionary review, according to his attorney, Gregory Kash of Raleigh.

“I don’t think you can read Azzolino as only prohibiting claims for post conception negligence,” said Kash. “We hope to have some amicus interest in our appeal.”

Facts

The plaintiffs had a blood test for sickle cell disease at the defendant’s office in 1991. He told them that he would call if there were any problems. If they did not hear from him, then “there was nothing to be concerned about,” he allegedly stated.

The blood test indicated they were both carriers of the disease, putting future offspring at high risk.

However, the plaintiffs were not informed of the results. In May 1994, the wife gave birth to a son with Hemoglobin O Arab, a sickle cell disease.

The plaintiffs sued, claiming the defendant was negligent and reckless in failing to relay the test results. They said they had suffered extreme emotional and mental distress, as well as financial loss.

The trial judge dismissed the complaint at the pleading stage, holding that the claim boiled down to an action for wrongful birth, and was barred under Azzolino. The plaintiffs appealed.

Ruling

The plaintiffs argued their claim was for wrongful conception, and permitted under the Supreme Court’s holding in Jackson v. Bumgardner, 318 N.C. 172, 358 S.E.2d 489 (1986). In that case, the court allowed a lawsuit for a negligent sterilization procedure when the plaintiff gave birth to a healthy but unplanned baby.

The Appeals Court agreed and sent the case back, holding the claim was for wrongful conception, not wrongful birth.

Wrote Judge Greene: “In this case the plaintiffs allege the defendant owed them a duty to provide information they sought to allow them an opportunity to make an informed decision about whether to have children and that the defendant breached that duty. These allegations are sufficient to allege a claim for `wrongful conception’ as that tort has been defined by Jackson.”

The Jackson ruling was not limited to its facts, the panel said, but actually broadened recovery by contemplating similar cases, said Judge Greene.

“In a `wrongful birth’ action, as defined by Azzolino, the medical treatment rendered by the physician `deprives the parents of the opportunity of deciding to abort a deformed fetus,'” the court said, quoting Jackson. “In this case, as in Jackson, the plaintiff wife carried the child to term and the child was born and there is no allegation that the acts of the physician precluded her from having an abortion.

“A `wrongful conception’ claim exists not only when a normal child is born, but also when a child is born with impairments, as the health of the child is not relevant to the validity of the claim,” said Judge Greene, citing a 1988 Fourth Circuit case, Gallager v. Duke Univ., 852 F.2d 773.

The court also noted that holdings from other states allow actions when health care providers fail to provide information that future children will be born with defects.

• Damages. In Miller v. Johnson, 343 S.E.2d 301.

But here the child was impaired — unlike Miller — and the injury was the conception of a child with a genetic defect, not the child’s birth — as in Azzolino.

“Accordingly we do not read Jackson as prohibiting the recovery of damages for the extraordinary care (in excess of the cost of raising a normal child) involved in the treatment of a child’s abnormalities which were the foreseeable consequence of a physician’s negligence in failing to inform the parents, prior to conception, of the possibility of such abnormalities,” wrote Judge Greene.

“These extraordinary expenses `naturally and proximately’ flow from the injury in this case, the conception of a child with sickle cell disease.”

• Emotional distress. Citing Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990), the panel said the complaint stated a claim for negligent infliction of emotional distress.

It was reasonably foreseeable that the defendant’s failure to inform the plaintiffs of the blood test results would cause them severe emotional distress, the court said.