The lawyers are getting into genetic testing

I do not dislike lawyers, but I often see ads on t.v. for people "harmed by taking drug X". From this, I learn about the problems with drug X. I haven't seen ads yet for people harmed by genetic testing, but I do know of several lawsuits that have made the national (and, in this case, international) news. Here's the information on the news I received yesterday from one of my Google alerts.

The Ohio Supreme Court in the US ruled this month that parents may sue on the basis of medical malpractice in the event of negligent genetic counselling or the negligent failure to diagnose a severe or fatal condition in the fetus that would have caused them to seek an abortion. This decision arose in response to the suit of couple whose eight year-old son was born with trisomy 22, a genetic condition that means he is severely disabled.

The results of genetic testing prior to conception showed a balanced translocation between two choromsomes (part of the DNA was switched, or transposed). When the woman became pregnant, she had a chorionic villus sampling (CVS) test. The test stated that the fetus was female and had the same translocation. Therefore, no ill effects were expected (the woman, after all, was not affected). Ultrasound tests showed normal development.

Unfortunately, the newborn was male and severely disabled. The parents sued, claiming that the hospital had

"negligently performed and interpreted the diagnostic tests and that they were negligent in their failure to recommend further tests that would have revealed Matthew's genetic abnormality" (see law report) with the result that they were denied the option to terminate the severely affected pregnancy. They claimed damages for the costs of pregnancy and delivery, of raising and supporting a disabled child, and for the emotional and physical suffering associated with having a severely disabled child.

The court allowed the claim for 'wrongful birth' to stand, but ruled that only those costs associated with pregnancy and birth could be claimed for, overruling a lower court decision that the parents could sue for the additional costs of raising their disabled child over those for raising a normal child.

Courts in the US appear to be reluctant to grant claims by parents for the financial burden of caring for a severely disabled child where the cause of the disability is genetic in origin. However damages for ongoing care costs as part of a 'wrongful birth' suit have been awarded by a few US states where the disabling condition arose during delivery.

Genetic testing is beginning to have more legal consequences.

Oh, you may wonder how the test could have been wrong. Most likely the CVS sampled the mother's tissue, not the fetus's and ultrasound is reported to often be unreliable, so not picking up facial problems typical of this type of abnormality (or even the gender of the fetus) is not uncommon. And why did the parents wait so long? Perhaps the growing interest in genetic testing is part of the picture.

Let's watch how this situation, and others, develops.

Marie Godfrey, PhD

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