Day on Torts
Insurance Journal reports that the parents of a child born with cystic fibrosis sued various Montana health care providers, saying that had they known of the genetic disorder they would have terminated the pregnancy.
Cystic fibrosis causes sticky mucus buildup in the lungs and other organs, leading to infections, digestive problems and death in young adulthood. The typical life expectancy is about 37 years, according to the Cystic Fibrosis Foundation.
The couple alleges that genetic testing the mother underwent in the first trimester failed to explore whether the child was likely to have cystic fibrosis. The parents would have terminated the pregnancy because they claim they were not emotionally or financially equipped to care for a child with that illness.
The defendants deny the claim and ask that the case be dismissed. The defense lawyer said
“In an age where prenatal testing can identify genetic indicators for traits ranging from Down Syndrome to eye color, will the court allow parents to sue for a lost right to abort any child the parent subjectively considers ‘imperfect”’ [Julie] Lichte [the defense lawyer] wrote. “Where do we draw the line?”
Tennessee has case law on wrongful pregnancy when a healthy child was later delivered (Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987)) and wrongful pregnancy where the child was later born with Downs Syndrome (Owens v. Foote, 773 S.W.2d 911 (Tenn. 1990)) but no reported case law directly on point (an allegation of failure of appropriate genetic testing that would have identified an issue that would have lead to termination of the pregnancy).
Regardless of how Tennessee courts would ultimately resolve the issue, however, it would be a real challenge to find a competent lawyer to take on such a case in Tennessee. Why? Winning the typical medical malpractice case is tough. But finding a jury in this state that will give damages for emotional distress to the parents for caring for a child with an illness and who state they would have rather aborted the child would be a hard sell.
Remember, Tennessee requires unanimity in jury trials, and finding twelve people that would give damages for emotional distress in this type of case would be very difficult. Extraordinary medical expenses associated with the condition that arguably should have been discovered? Possible. But emotional distress? Nope, I don’t think that dog would hunt in Tennessee, particularly when the disease is cystic fibrosis.
The article “Understanding Tort Law Impacts Created by Scientific Advances of Human Biomonitoring and Genetic Biomarkers” by Gary E. Marchant and Cason Schmit discusses the medicine and the law in this fascinating field. This publication is from a Defense Research Institute seminar.