Fertility clinic makes $3.3 million mistake  

An arbitration panel awarded more than $3 million to a married couple after a fertility clinic helped them conceive without warning the mother that she carried a deadly disease which could be passed on to her child.

Reproductive Endocrinology Associates of Charlotte mishandled the results of a medical screening test that showed Sally Ware was a carrier of cystic fibrosis, and her daughter ended up inheriting the disease, according to Ware’s attorneys, William H. Elam and David S. Rudolf of Charlotte.

Ware and her husband, Christopher Ware, went to the clinic in November 2005 seeking in-vitro fertilization treatment from Dr. Daniel B. Whitesides. He had Sally Ware take several pre-treatment screening tests, but a nurse at the clinic incorrectly entered her positive cystic fibrosis result as being normal.

Whitesides did not catch the error and went ahead with the treatment. After Ware became pregnant, Whitesides referred her to an obstetrician/gynecologist, who had her undergo another round of screening tests.  This time the cystic fibrosis result did not go unnoticed. Chris Ware was also tested, and discovered that he too carried the disease.

The Wares spent the next five months of the pregnancy knowing that their baby had a one-in-four chance of being born with cystic fibrosis.

“What should be the most joyous time of their lives turns out to be a sort of purgatory,” said Rudolf, a partner at Rudolf Widenhouse & Fialko. “To get all the way to the end of what is already such an emotionally and physically draining treatment only to have the rug pulled out from under you is almost beyond imagination.”

The Wares’ daughter, Vivian, was born in October 2006 with a severe form of cystic fibrosis. She has been in and out of the hospital since her birth, requires daily physical therapy and eats through a feeding tube attached to her stomach, Rudolf said.

“They’re always thinking, ‘How long will she live?’” he said of the Wares. “It’s a nightmare.”

‘Outrageous’ arguments

Before they could go through with the in-vitro fertilization treatment, the Wares had to sign an arbitration agreement with the clinic. They did not contest the agreement when they sued, partly because it contained a clause that required the losing party to pick up the winner’s legal tab.

“You could challenge [that clause], which is meant as a deterrent, as unconscionable,” Rudolf said. “But we decided that if we got a decent panel of arbitrators, people who understand life, we could appeal to them in the same way that we could appeal to any jury.”

The panel consisted of Melzer A. Morgan Jr., a retired Superior Court judge; arbitrator Rene S. Ellis, a senior lecturing fellow at Duke University School of Law in Durham; and Barbara B. Weyher of Raleigh’s Yates, McLamb & Weyher, which defends healthcare providers against medical-malpractice cases.

“We did our research and we found that she [Weyher] was fair, and she was,” said Elam, a partner at Elam & Rousseaux. He added that having two women on the panel might have given the Wares an advantage. “We thought they would be more empathetic with Mrs. Ware, which was significant on the damage issues.”

The arbitration hearing began in March in Mecklenburg County and spanned nearly three weeks. The defense argued during the hearing that even if the arbitrators concluded that the alleged bungling of the cystic fibrosis test result constituted malpractice, the clinic and Whitesides could not be held liable for the mistake, according to Elam.

The defendants’ attorneys did not return phone messages seeking comment. They are James P. Cooney III of Womble Carlyle Sandridge & Rice in Charlotte, Norman F. Klick Jr. of Carruthers & Roth in Greensboro, and Samuel H. Poole Jr. of Cranfill, Sumner & Hartzog, also in Charlotte.

The defense also contended that the N.C. Supreme Court’s 1985 decision in Azzolini v. Dingfelder barred the Wares’ claim. In that case, the court dismissed a med-mal suit accusing a doctor of failing to tell a woman about medical tests that might have predicted she would give birth to a boy with Down syndrome. The opinion states that “claims for relief for wrongful birth are not cognizable at law in this jurisdiction.”

But the arbitration panel denied the defense’s motion, along with another request for summary judgment made on similar grounds, according to Elam. Because state law does not allow wrongful birth and wrongful life claims, the Wares sued the clinic and Whitesides for negligent infliction of emotional distress.

“It’s not truly a backdoor. We couldn’t talk about the thousands of dollars of what it costs to care for Vivian, only the Wares’ fear and the emotional drama of how they deal with all of this,” Elam said. “And the real fear that they have a child who may not outlive them.”

In the end, the defense’s refusal to accept responsibility for what happened to the Wares helped the couple win the case, Elam and Rudolf said. The defense had contended that the couple was not suffering emotionally – despite testimony from a psychologist who said otherwise – and suggested that Sally Ware could have gotten an abortion, Rudolf added.

“These arguments, in my mind, were just outrageous,” he said.

Anti-tort reform ‘poster child’

The arbitration panel awarded nearly $2.3 million in compensatory damages and interest to the Wares in April. In September, the panel ordered the defendants to pay the couple more than $1 million in attorneys’ fees and court costs.

The defense’s highest settlement offer had been less than $500,000, and they had also rejected the Wares’ offer to settle for the defendants’ insurance policy limits of about $2.75 million, Elam said.

Despite the outcome of the arbitration hearing and the clause in the clinic’s arbitration agreement regarding attorneys’ fees and court costs, the defense argued that it did not have to pay the Wares’ legal bills. They asserted that the Wares needed to pay the defense’s expenses because the arbitration panel had declined to award the couple punitive damages, which the defense construed as a loss.

That argument fell flat, and Superior Court Judge Robert C. Ervin confirmed both awards on Oct. 24. The defendants’ insurers have paid the Wares in full, according to Elam and Rudolf, who had not received a notice of appeal from the defense as of press time.

Ware v. Reproductive Endocrinology Associates of Charlotte would have turned out very differently had it been filed after North Carolina’s controversial tort reform law took effect in October, Rudolf noted.

Under the new law, the Wares could have collected just a fraction of their $3.3 million award – tort reform placed a $500,000 limit on non-economic or quality-of-life damages, such as emotional distress.

“This is the perfect case to illustrate why this change in the law is so incredibly unfair,” Rudolf said. “It’s the poster child for why this cap is unconscionable.”

Verdict Report

Type of action: Medical malpractice

Injuries alleged: Child born with cystic fibrosis

Case name: Ware v. Whitesides

Case number: 09-CVS-19191

Court: Arbitration in Mecklenburg County

Judge: Three-member arbitration panel

Verdict or settlement: Arbitration award

Date: April 11; Judicial confirmation Oct. 24

Amount: $3.3 million

Special damages: $1 million in attorneys’ fees and costs

Highest offer: $500,000

Plaintiff’s attorney: William H. Elam, William R. Elam and David S. Rudolf  (Charlotte)

Defendant’s attorneys: James P. Cooney III (Charlotte); Norman Klick (Greensboro); and Samuel H. Poole Jr. (Charlotte)