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‘Wrongful birth’ cases are before high court

One issue: May a father be the patient of an obstetrician

The Supreme Court of Virginia apparently will have the final say on a Fairfax County couple’s claims against two obstetricians based on the birth of twins with Down syndrome. The court’s decisions could provide guidance for medical malpractice lawyers on several critical points, including whether a father can be a patient of an obstetrician.

The couple claimed that they lost the chance to consider aborting the pregnancy because the doctors failed to properly advise about early testing for abnormalities. A Fairfax County jury returned verdicts totaling $4.5 million for the couple in 2006. The mother’s $4 million verdict was one of VLW’s “Virginia’s Largest Verdicts of 2006.”

The Supreme Court has agreed to hear two separate appeals from the cases.

The latest issue to be taken up by the court is whether the father has any claim at all. The dispute turns on whether the father could be considered a patient of one of the defendant obstetricians when the doctor provided advice to the couple about genetic testing. The jury awarded $500,000 for the father’s wrongful birth claim, but the trial judge threw out the verdict, concluding that the father was not a patient of the obstetrician.

Robert Hovis, the attorney for the couple, acknowledges, “It’s kind of a novel thing, a husband being a patient of an obstetrician.” Nevertheless, Hovis points to a 2006 Supreme Court of Virginia opinion allowing parents to try a case against a pediatrician who performed tests on the parents’ daughter. “This was a couple making decisions about the pregnancy as a couple.”

The Supreme Court agreed to hear the father’s appeal just last month. Already pending on the Supreme Court docket was the doctors’ appeal of the mother’s $4 million dollar verdict (reduced to $1.6 million to comply with Virginia’s medical malpractice damages cap at the time).

In their appeal of the mother’s win, the doctors point to evidence that the mother chose not to pursue certain counseling and testing and would not have terminated her pregnancy regardless of any test results. According to the doctors’ briefs, she “attempts to seek substantial compensation from others for choices which she herself made.”

Moreover, the doctors argue, the mother failed to present medical evidence that the omitted tests would have shown the fetal abnormalities. The lack of expert evidence about what the tests would have said was a “fatal deficiency” in the mother’s case, according to the doctors’ brief. Resolution of that issue by the high court could provide direction as to the required level of certainty about the results of omitted tests.

Asking the high court to uphold her award, the mother argues that the omitted tests would have shown that both twins had Down syndrome and “could have given her the opportunity to make an informed choice” of whether or not to accept or reject continuation of the pregnancy.

The parents’ case focused on the timing of the available testing. Hovis contended that the obstetricians failed to advise the mother of the chorionic villus sampling, or CVS, test that could have identified a chromosomal abnormality at 11 to 12 weeks of gestational age. The mother chose not to get undergo amniocentesis, another type of test, at 15 to 18 weeks gestational age because she thought that was too late in her pregnancy to consider abortion. She told the jury that she would have undergone the earlier CVS test if she had been advised of it.

Hovis presented evidence that it will cost the parents more than $2.5 million to care for the children over their lifetimes.
A lawyer for the physicians, Stephen L. Altman, presented entries from the mother’s diary suggesting that she would not have terminated the pregnancy at any point. When a later test indicated the possibility of Down syndrome, she wrote, “We would rather pray for healthy babies and be blessed with whatever God chooses for us.”

The doctors’ appeal of the mother’s case is Fruiterman v. Julie Granata (No. 071894). The father’s appeal is Joseph Granata v. Fruiterman (No. 071897).

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