Father can sue lab for ‘wrongful birth’

Father can sue lab for ‘wrongful birth’

By Paul Fletcher
Published: November 17, 2011

Tags: Tucker Griffin Barnes, , ,

The father of a girl born with a blood disorder can bring a negligence claim against the lab that told him and his wife that the child would not have the disease.

The parents both were unaffected carriers of a genetic defect; there was a one in four chance that any child of theirs would inherit both defective genes, resulting in a condition called Cooley’s anemia. People who suffer from this condition lack a blood protein that maintains iron levels in the body; they must go through frequent blood transfusions.

The wife became pregnant, and the couple underwent genetic testing. They agreed they would have an abortion if the child was affected. But the lab advised the couple that the unborn child would be an unaffected carrier.

After their daughter was born, they discovered she had Cooley’s anemia. At the age of one month, she had her first blood transfusion.

The couple sued in state court, and the defendant, LabCorp, removed the case to federal court in Charlottesville. In Khadim v. Laboratory Corporation of America (VLW 011-3-604), U.S. District Judge Norman K. Moon heard LabCorp’s arguments that the father could not bring a claim. He also considered whether LabCorp was a “health care provider” subject to the damages limits in the Virginia Medical Malpractice Act.

The Supreme Court of Virginia first recognized a negligence claim for “wrongful birth” in 1982 in Naccash v. Burger, 223 Va. 406. The claim allowed damages for emotional distress, creating an exception to the general rule that physical injury is necessary for a distress claim to succeed.

LabCorp sought dismissal of the father’s claim here, arguing among other things, that the man was not their “patient.” Moon observed that the Virginia high court did not limit Naccash to the claims of the mother, using plural terms instead, such as the “parents,” “them” and “they.”

He also looked to a 2001 Supreme Court case, Didato v. Strehler, 262 Va. 617, that had a similar factual pattern: A child was born with a blood condition comparable to that of the girl here. The couple sued, stating they would not have had a baby had they known. Responding to the defense argument that the parents were not “patients,” the high court found a cause of action separate from the doctor-patient relationship, Moon wrote.

In Khadim, Moon said, LabCorp tested genetic material from both parents, even asking for additional samples in an effort to get the most accurate result. He let the man’s claim proceed.

Moon also considered cross-motions of the parties on the issue of whether LabCorp is a “health care provider” under the Virginia Medical Malpractice Act. If so, the company would have the ability to take advantage of the act’s limits on med-mal damages.

The judge said that the act applies: The VMMA covers corporations that employ licensed health care providers and primarily render health care services. He found that definition applies. Also, LabCorp qualified for the act’s protections because it was an independent contractor working for a physician who ordered the genetic testing.


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