The New Hampshire Supreme Court recently overturned a medical malpractice case against Dartmouth-Hitchcock Medical Center involving a "wrongful birth" claim, holding that DHMC adequately met its burden of care.
Sherry and Brad Hall sued DHMC, Dartmouth and cytogeneticist T.K. Mohandas for failing to inform them soon enough that their son Brandon, now 5, would be born with severe deformities. They testified that, had the doctors informed them of his condition, they would have aborted the fetus.
The Halls were first referred to DHMC for genetic testing because of the high likelihood that their baby would be born with Trisomy 18, a chromosomal disorder.
After conducting an amniocentesis, Mohandas produced a karyotype, a digital image of all 23 pairs of chromosomes, and declared the fetus completely normal.
At a follow up ultrasound 23 weeks into the pregnancy, the fetus exhibited clenched hands, a possible "rocker-bottom" foot, an abnormally small lower jaw, possible heart problems and a "lemon head deformity" indicating genetic problems. DHMC physician Michelle Lauria informed the Halls at that time of the 95 percent likelihood that their son would be born with some genetic deformities ranging from "a very minor problem that perhaps would require some physical therapy or maybe some surgery, all the way to being just severely affected, dying at birth or being severely mentally retarded," according to the opinion of the case.
Sherry Hall elected to carry the baby to term and Brandon was born severely retarded without the ability to walk or to eat without a feeding tube. He requires around-the-clock care and Hall has become his stay-at-home caregiver.
After Brandon was born, blood samples from the parents and child revealed that he suffered from Partial Trisomy 9q, the first ever reported case of this particular chromosomal abnormality. The plaintiffs argued that the rarity of the disease should not affect the outcome of the case.
"Admittedly it is a rare condition, but it is only rare because of where the translocation occurred. A partial trisomy 9 is not rare, but a partial trisomy 9q is rare. Again that's got nothing to do with the ability to detect it. They didn't detect it because they didn't do their job," said Steven Latici, the Halls' lawyer.
In the decision, the court declined to extend the precedent established in Smith v. Cote, the "wrongful birth" decision in 1986, to require caregivers to provide a specific diagnosis, rather than just the possibilities of genetic abnormalities. It also held that DHMC's caregivers are not required to suggest the termination of pregnancy.
Hall obtained second opinions at other Boston hospitals that pronounced the baby normal. It was these opinions, the defense believes, that contributed to her decision to keep the baby, even though DHMC had already informed her of the genetic problems.
The three judges unanimously overturned the $2.3 million jury verdict, saying that the trial judge made a mistake by refusing to set aside a verdict that no "reasonable" juror could have reached based on the evidence.
"We were gratified about the decision because basically the Supreme Court agreed that the caregivers were operating within the stand of care by giving the parents information about the strong possibility of birth defects," said Ron Snow, a lawyer for DHMC.
The case raises ethical issues dealing with genetic testing and abortion. Some worry that genetic testing will result in "designer babies" and higher abortion rates, while others contend that it spares parents the heartache and financial strain of raising a debilitated child.
"The family is obviously absolutely devastated by this news," Latici said. "It has a direct impact on the quality of life that they are going to be able to offer this child, more importantly on who's going to take care of this child when the parents are no longer able to do it. This is not a situation when the child is going to die any time soon. He's going to live a very long time."
The plaintiffs are currently preparing a petition to reconsider the case. They believe that the decision failed to take into account the difficulty of obtaining an abortion at that late date when they were informed of their son's disabilities.
Latici asserts that not only would Hall have been unable to obtain an abortion in Boston after the 24th week, but that she would have been unable to obtain one anywhere in the nation without a specific diagnosis from a geneticist, which DHMC did not provide.
Snow expressed doubts regarding the possibility of success of the petition for reconsideration.
"They can't reargue the case because it has already been decided. If there's some obvious thing that the court has failed to understand or misapprehended, then you can bring that to their attention. We're beyond that at this point I think," Snow said.
