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Court Decides Case Regarding Medical Malpractice for Failure to Diagnose


A couple, who are carriers of genetic mutations that cause cystic fibrosis were residents of the State of Colorado. When the wife became pregnant with triplets via in vitro fertilization, they decided to have a genetic test to determine the health of the fetuses. A doctor, who is the Chief of the Columbia Center for Genetics, Fetal and Maternal medicine gave the mother the option where to do the procedure, either to go to New York or to go to Philadelphia, Pennsylvania. The couple chose to go to Philadelphia.

The doctor performed a chorionic villus sampling (CVS) procedure on the triplet fetuses. This procedure involves taking a small sample of the placental tissue of each fetus to perform chromosomal and DNA analysis. A New York Injury Lawyer said the samples taken were split and labeled as belonging to fetus A, B and C. The results showed that they had one healthy fetus and two with cystic fibrosis. Based on the DNA analysis, Fetus C was a carrier of cystic fibrosis but did not have the disease. On the other hand, A and B had cystic fibrosis. On the belief that two fetuses had cystic fibrosis, the parents decided to have the doctor reduce those two fetuses, while allowing the pregnancy to continue as to the third fetus which believed to be carrier. However, the confirmatory studies done were incomplete due to the DNA insufficiency in the samples. The parents continue the pregnancy of the third fetus. When the baby was born, he was diagnosed with cystic fibrosis.

Now the parents are suing the doctor for damages based on the alleged “wrongful birth” of their son, who was born with cystic fibrosis. According to the parents, they consulted the doctor before the baby was born with the specific purpose of confirming whether the infant would be born with cystic fibrosis and with the intention to terminate the pregnancy if cystic fibrosis was confirmed. Due to the doctor’s medical malpracticeconnected with the pre-natal genetic testing and reduction of the two fetuses, they were not informed of the condition of the third fetus and would have chosen not to continue the pregnancy.

The parents commenced the action against the doctor and Columbia in New York. The parents have engaged in extensive discovery which included numerous depositions of the various persons involved in the testing and related procedures in the various states. The residence of these depositions and the parents include Colorado, New York, Pennsylvania and New Jersey.

The legal issues they are facing relates to forum non conveniens and choice of law.

There is forum non conveniens when the court finds that in the interest of substantial justice the action should be heard in another forum. A Suffolk Personal Injury Lawyer said the defendants move to dismiss the action on this ground. The doctor emphasizes that he performed all the procedures in Pennsylvania and most of the relevant witnesses reside in that state. However, the parents support to maintain jurisdiction in New York asserting that there are no available forum exists as the State of Pennsylvania does not recognize claims for wrongful birth.

The court agrees with the parents that the place where the injury occurred is Colorado, where the baby is born and the damages incurred by the parents for the baby’s care and treatment all occurred, even if the doctor performed his procedure in Pennsylvania.

According to jurisprudence, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred. The location in this case should be determined where the parents’ injuries occurred. Based on this, said a Long Island Personal Injury Lawyer, the court denied the motion to dismiss of the defendants and Colorado law shall be applied.

Stephen Bilkis and Associates can give you advice on remedies that can help you with your cause. Our skilled legal team are also available if your newborn baby suffered injury due to negligence of the doctors and medical staff. The asking for their help, we can understand more what our rights are and how we can fight for them.

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