Parents of Child Born With Cystic Fibrosis May Sue Doctors Who Performed In-Vitro Fertilization for Negligence and Malpractice
April, 2003
NEW YORK SUPREME VENTURES
INTO QUESTIONS OF FIRST IMPRESSION – NEGLIGENT IN-VITRO FERTILIZATION AND NEW WRONGFUL DEATH PLAINTIFFS
Editor’s Note:
In two recent cases, the Supreme Court of New York County has been presented with questions of first impression – one arising from the use of medical technology to achieve pregnancy and the other from changing societal views of marriage. Plaintiffs in cases such those we report on below present the courts with new tort-based causes of action and important choices as to whether to recognize or reject them. We will continue to monitor these issues and update our readers as new developments occur.
The Supreme Court of New York County, per Justice Eileen Bransten, has found that the parents of a child conceived through in vitro fertilization (“IVF”) and born with cystic fibrosis may sue the doctors who performed the IVF for medical malpractice and negligence. In Paretta v. Medical Offices for Human Reproduction d/b/a Center for Human Reproduction, et al., 2003 N.Y. Slip Op. 23510, 2003 WL 1922819, Justice Bransten also found that plaintiffs may seek punitive damages.
Facts
Plaintiffs Josephine and Gerald Paretta sought fertility treatment from the defendant Center in 1998. Defendant Dr. Mark Sauer recommended that the Parettas undergo IVF using an ovum (egg) donor. Dr. Sauer allegedly also recommended that the Parettas use Mr. Paretta’s sperm and the egg of a “prescreened” donor. The Parettas agreed with Dr. Sauer’s recommendation and entered the Center’s Ovum Donor Program, directed by defendant Dr. Steven Lindheim.
Dr. Lindheim provided the Parettas with detailed information about the egg donor he recommended to them – she was white, a second-time donor, a heterosexual, of English and Irish ancestry, and a Protestant. Per the Parettas’ request, Dr. Lindheim also provided them with information about the donor’s appearance – she was five feet six inches tall, had dark brown hair and brown eyes, was long necked with small eyes and ears, had a short thin nose, dimples, high cheekbones, and no freckles. According to the Parettas, Dr. Lindheim also told them that the donor did not have a history of mental illness or genetic diseases. Based on this information, the Parettas decided to use the donor.
Dr. Lindheim deposed that the custom and practice of the Ovum Donor Program was to screen donors for various diseases, including cystic fibrosis, and to give that information to the potential recipients. No one remembers ever telling the Parettas that the donor recommended to them was a carrier of cystic fibrosis and Mr. Paretta was not tested to ascertain whether he was also a cystic fibrosis carrier. Cystic fibrosis must be inherited from both parents in order to present.
Through use of the egg donor and IVF, the Parettas achieved conception and their daughter, Theresa, was born in May, 2000. She was immediately diagnosed with cystic fibrosis and will require extensive medical care and treatment throughout her life. Two months after Theresa’s birth, Dr. Sauer wrote to the Parettas and told them that the donor was screened and found to be a carrier of cystic fibrosis; he also stated that the Center had no records of genetic screening performed on Mr. Paretta.
The Parettas’ Lawsuit
The Parettas filed suit in October, 2000 alleging that defendants committed medical malpractice when they failed to properly screen the egg and inform them that the egg tested positive for the cystic fibrosis gene. They further alleged that defendants were negligent in failing to screen Mr. Paretta for the cystic fibrosis gene. They sought a variety of damages – damages for emotional distress they suffer as the parents of a child with cystic fibrosis; compensation for medical expenses and lost wages incurred because of Theresa’s needs; and punitive damages for defendants’ “egregious, grossly negligent and reckless conduct.” On Theresa’s behalf, the Parettas also sought recovery for emotional distress incurred as a result of her birth with a congenital disease. The parties cross-moved for summary judgment.
Legal Analysis
Supreme Court first granted summary judgment to defendants on Theresa’s claim, finding that she did not have a cognizable cause of action against them. In so doing, the court relied upon the Court of Appeals’ opinion in Becker v. Schwartz, 413 N.Y.S.2d 895 (1978), a case in which the plaintiff child sought to recover damages as a result of being born with Down’s Syndrome. Citing Becker, the court here found that “[b]ecause a child does not have a fundamental right to be born free of disease, the Court [of Appeals] refused to subject the obstetricians and gynecologists to liability to the infants. ‘Whether it is better to have never been born at all than to have been born with even gross deficiencies,’ the Court stated, ‘is a mystery more properly left to the philosophers and theologians’ * * * Becker makes clear that the Parettas cannot recover on Theresa’s behalf. . . .”
In reaching this conclusion, the court rejected plaintiffs’ argument that defendants owed Theresa a higher duty of care because they were actually responsible for her conception, had a role in her genetic composition, and combined the sperm and egg, both of which carried the cystic fibrosis gene. “Theresa. . ., like any other baby, does not have a protected right to be born free of genetic defects,” Justice Bransten wrote. “A conclusion to the contrary, permitting infants to recover against doctors for wrongs allegedly committed during in-vitro fertilization, would give children conceived with the help of modern medical technology more rights and expectations than children conceived without medical assistance. The law does not recognize such a distinction and neither will this Court.”
The court then denied defendants’ motion against the Parettas themselves, finding that – unlike Theresa – they could state a cognizable claim. Again looking to Becker, the court found that “irrespective of the label coined, plaintiffs’ complaints sound essentially in negligence or medical malpractice.” In reaching this conclusion, however, the court limited the types of damages which plaintiffs could seek to recover. Relying on Becker, the court found that plaintiffs could seek recovery of “the pecuniary expenses which they have borne, and . . . must continue to bear, for the care and treatment of [Theresa]. Certainly, assuming the validity of plaintiffs’ allegations, it can be said in traditional tort language that but for the defendants’ breach of their duty to advise plaintiffs, the latter would not have been required to assume those obligations.”
The court also found that the Parettas could seek recovery of Mrs. Paretta’s lost wages in that she had to quit her job in order to care for Theresa full time. The court distinguished case law holding that there is no recovery for future lost wages where a parent quits work to care for a healthy but unwanted child, focusing on the “tremendous amount of care and attention” that must be provided to a child with cystic fibrosis as opposed to a healthy child. “Here, by contrast, the Parettas are caring for a very dependent child with heightened needs. . . Theresa was born diseased.”
The court rejected the Parettas’ claims for emotional distress they suffer as a result of Theresa’s birth and the trauma they endure witnessing Theresa’s suffering. Looking to Becker, the court found that, as a matter of public policy, “recovery for psychic or emotional harm based on the birth of an infant in an impaired state must of necessity be circumscribed... [N]otwithstanding the birth of a child afflicted with an abnormality, and certainly depending on the nature of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen.” In reaching this conclusion, the court again rejected the argument that defendants owed the Parettas a higher duty because Theresa was conceived through IVF: “There is no compelling legal authority permitting a distinction where a child has been conceived with the help of medical technology and is born with a genetic disease. This Court cannot treat the emotional distress and psychic pain suffered by parents who give birth to a sick child after in-vitro fertilization any differently from that sustained by other parents. The emotional distress experienced as a result of watching a genetically diseased child suffer, horrible as it may be, is the same regardless of how the child was conceived. It unfortunately is not compensable.”
Finally, the court found that the Parettas could also seek punitive damages. “It is certainly possible that defendants’ conduct was at the very least grossly negligent – possibly even fraudulent – and that defendants could have prevented the Parettas from having a baby with cystic fibrosis. There is evidence that defendants may have known that the egg donor ways a cystic fibrosis carrier; yet, they failed to inform the Parettas or test Mr. Paretta’s sperm to assess whether he too was a carrier. Had the Parettas been informed of the potential for cystic fibrosis they themselves may have chosen to have Mr. Paretta tested or may have altogether opted on using a different egg donor.” •
Back to New York CM Report of Recent Decisions (2003v2) 2003 Volume 2 Table of Contents
