Parents, physicians settle over missed cystic fibrosis in fetus

June 14, 2008

During the course of a couple’s pregnancy, both parents were found to be genetic carriers of cystic fibrosis. Their OBGYN referred them to a geneticist for counseling.

The geneticist discussed with them the 25 percent likelihood that their child would be born with the disease and referred the mother for an amniocentesis to test for cystic fibrosis.

The parents agreed that if the amniocentesis revealed that the fetus had cystic fibrosis, they would terminate the pregnancy within the 24-week gestational time window.

The amniocentesis was performed by a second OBGYN, who returned the amniotic fluid sample and requisition form to the geneticist and his lab. The lab performed chromosomal analysis but failed to test the sample specifically for cystic fibrosis. As a result, the lab report did not mention cystic fibrosis analysis and stated only that all findings were normal.

The parents were informed by telephone of the results. It was not until after the birth of the child that the parents were informed that their daughter did, in fact, have cystic fibrosis.

The parents filed suit, seeking damages for the extensive costs associated with caring for a child with cystic fibrosis as well as the emotional harm caused by the failure to diagnose the disease.

The parents maintained that the geneticist and his lab failed to properly test the amniotic sample for cystic fibrosis. They also claimed that the two OBGYNs failed to follow up and ensure that cystic fibrosis testing was properly performed.

The geneticist and his lab argued that the OBGYN who performed the amniocentesis filled out the lab requisition form incorrectly and did not specifically request the cystic fibrosis test. The OBGYN who performed the amniocentesis claimed that he stated on the requisition form that the purpose of the procedure was to test for cystic fibrosis and this was sufficient to identify the results he was seeking.

The parents’ initial OBGYN claimed that he was informed by the lab that all test results were normal and he abided by the standard of care in relying upon the report.

The parents submitted a lifecare plan with respect to the future medical needs associated with caring for their daughter. They planned to call an economist to testify as to the present value of the anticipated medical costs, liability experts and a pulmonary expert specializing in the care and treatment of cystic fibrosis.

The physicians argued that the parents’ projected costs for treatment for their daughter were too high, and that their daughter has a mild form of the disease and would not require much of the projected medical care, such as lung and liver transplant surgeries.

The doctors further argued that the actual costs were less than presented by the parents, given that health insurance would cover most of the claimed medical expenses, and maintained that because the claims for emotional harm are offset by the enjoyment derived from their daughter, the emotional harm claim was nominal.

After negotiations, the parties agreed to settle all claims for $2,375,000.

Type of action: Medical malpractice, failure to diagnose cystic fibrosis in a fetus.

Injuries alleged: Loss of parental chance to terminate pregnancy; extraordinary costs
associated with caring for a child with cystic fibrosis; and emotional harm

Date of settlement: January 2008

Submitted by: Neil Sugarman, Sugarman & Sugarman, Boston (for the plaintiff)