Introduction

One day many years ago, when the risk manager from my hospital knocked on my door asking for a patient's chart, I experienced palpitations. The case involved a patient who had been seen because she had a child with a chromosome abnormality. She wanted and had an amniocentesis. When the laboratory reported an elevated amniotic fluid alpha-fetoprotein level, I had arranged for a targeted ultrasound scan at another institution. The level of ultrasound scan needed was only offered by a few experienced centers at that time.

Instead of keeping the scheduled ultrasound scan appointment, the patient went for an abortion. The patient planned to sue the institution, and me, for malpractice. What had I said to her? What did she misunderstand? Could I have handled the situation in a way that would have resulted in a different outcome? I did not understand it then and am not sure even now why she had the abortion or why she thought there had been malpractice. It was an unpleasant several weeks for everyone involved.

No one likes to be sued. A lawsuit is an assault on one's self-image and reputation. It is physically and financially draining. We do not, however, want to spend our professional lives looking over our shoulders. In the following pages, we will look at the day-to-day practices of genetic counselors and try to identify areas in which possible sources of liability can be found. We will discuss how a genetic counselor can change her behavior and possibly minimize her exposure to lawsuits. No one is exempt from the experience. Although there are no assurances that you or I as individuals or as members of a team will never be named in a lawsuit, we want to heighten our awareness so that we can say with conviction that nothing we have done has left us vulnerable to being sued.

One formal purpose of a medical malpractice lawsuit is to encourage practitioners to avoid injuring patients by refining and reshaping their practices. Everyone benefits from the prevention effect of such lawsuits. A medical malpractice lawsuit is also supposed to provide compensation for injuries, although very few people actually receive compensation. Finally, these lawsuits are meant to uphold the traditional values of justice and responsibility, which hold people accountable for their actions. The process of litigation is available to determine the existence or absence of liability when there is a dispute between parties.

A healthcare provider gets sued because a patient/client thinks she has been harmed in some way. Her issues can be expressed through a number of different legal actions, such as breach of contract or negligence. The profession of genetic counseling has developed as a specialty within the general field of medicine. The majority of genetic counselors work in a medical setting, so that a medical model usually applies to how we practice. We expect, for example, that a formal complaint by a patient about a genetic counselor for what has been done or not done will come under the laws that apply to medicine as opposed to business. Most commonly, complaints take the form of a lawsuit that claims malpractice or negligence.

The medical malpractice system works to discourage or minimize injury to patients, and to keep any injuries to a socially acceptable level. There is an underlying assumption that individually oriented financial liability will work as a deterrent, and will prevent future patient injuries. The failures and limitations of this type of system are beyond the scope of our discussion here. We are going to look at a general negligence lawsuit and consider how it would concern a genetic counselor. In that way we can identify and get to know where the potholes may be, and plan how we may avoid them in the first place. We will also look at specific lawsuits that have been heard by the courts. These can be used as the basis of our lessons learned.

The outcome of lawsuits with similar claims and facts is not always predictable or consistent among the states. In Becker v. Schwarz,11 the parents of a child with Down syndrome were suing for a failure to counsel on the increased risk of advanced maternal age and the failure to refer for genetic counseling. The New York court allowed the parents to recover damages for the cost of the treatment for their child. One year later in New Jersey, in Berman v. Allan,12 the New Jersey court ruled that the parents of a child with Down syndrome born to a woman who was over 35 years of age could recover for emotional, but not economic, harm.

Lawsuits do not always go away. A good example is the case of Moscatello et al. v. University of Medicine and Dentistry of New Jersey et al.13 In that case, the parents of a child born in 1982 with an unbalanced chromosome 14/18 translocation settled a wrongful birth suit against the geneticist who counseled the family and who had ordered the mother's chromosome analysis. A wrongful birth suit is a lawsuit brought by parents of a child born with a defect or a disease that they allege was caused by some act of negligence.

The settlement in the original Moscatello case was for emotional harm and the cost of extraordinary medical expenses. Fourteen years later, the family again brought a wrongful birth claim seeking more money. The family also brought a wrongful life claim in the name of the child. A child who is born with a defect or a disease alleges in a wrongful birth case that he or she should have been born without the problems at issue. The Moscatello wrongful life claim was for extraordinary medical expenses. Although the wrongful birth claim was barred by the previous settlement, the court allowed the wrongful life suit to go forward. Having a case brought up a second time imposes an emotional and financial toll on the provider who had thought the case was settled and over.

Medical malpractice case law does not always relate specifically to the area of genetics or to the profession of genetic counseling per se. In the following discussion, we will be looking mostly at cases that address medical issues that could, and may, be applied to genetics and genetic counseling. Some of the cases that will be discussed are very old. They are important for the lessons we learn from them. Some cases have historic value, some have set precedence, and decisions in some are still valid. The cases we will refer to or talk about do not represent all those that have been filed. I have chosen those that I thought are good illustrations of a point of law or an area of practice. They may not all have references to legal catalogs, since some have been settled prior to being presented to a jury.

Keep in mind that when you read "genetic counselor" or "genetic counseling" in a case discussion, it may refer to a wide range of providers (M.D., Ph.D. or M.S. geneticist) and services (clinical, laboratory, research). The genetic counseling and genetic centers referred to in some cases may not necessarily be what we know of as genetic services today. The principles raised by these cases, however, still apply.

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