BOZEMAN, Mont. – A jury in Montana heard opening statements Wednesday in the case of a mother who is suing her health care providers because they failed to diagnose her unborn daughter’s cystic fibrosis, denying her a chance to have an abortion.
Kerrie Evans of Gardiner is seeking nearly $14.5 million in damages from Park Clinic in Livingston, Billings Clinic’s Bozeman OB/GYN, nurse practitioner Peggy Scanson and Dr. William Peters — including $10 million for her daughter’s medical and psychological care. The girl, who’s nearly 6, has a severe form of cystic fibrosis.
The case lays bare an emerging medical ethics struggle. Lawsuits dealing with so-called wrongful births were recently before judges in Washington state and Oregon, while a dozen states prohibit such legal claims.
Jurors are being asked to determine whether Evans expressed concern about cystic fibrosis during her first prenatal visit, which she says she did. Attorneys for her medical providers said she spoke specifically about Down syndrome and did not participate in recommended genetic counselling.
Evans sued in October 2011. Her attorney, E. Casey Magan, told jurors that a systemic failure led to the lack of diagnosis and the girl needing extensive and expensive medical care for the rest of her life.
Magan said Scanson, the nurse practitioner, did not offer Evans blood screening to determine if she was a carrier for the disease and the doctor did not ask whether she received genetic counselling. Evans also had difficulty contacting genetic counsellors, the attorney said.
“Your job is to fix, help and make up for this error,” Magan said.
In response, Park Clinic and Scanson said the mother only expressed concern about Down syndrome and did not request testing for cystic fibrosis.
It is an inherited disease in which the cells that produce mucus instead produce thick and sticky fluid that damages the lungs and digestive system. While each case is different, many patients now live to be adults with proper treatment and care.
The doctor spoke with Evans about cystic fibrosis and other genetic issues because she had not gone through genetic counselling, said Lisa Speare, an attorney for Peters. She said he will testify that he explained the process and that she declined a blood test to determine if she was a carrier for the disease.
Both parents would have to be carriers for a child to have a 25 per cent chance of having cystic fibrosis. The screening results are needed to determine what mutation of the disease a lab should test for, Speare told jurors.
“Dr. Peters did not give (the girl) cystic fibrosis,” the attorney said. “She was either going to be born with cystic fibrosis or (she) was not going to be born.”
The life expectancy for someone with the disease is approaching 40, and medical advancements are occurring all the time, said Julie Lichte, Scanson’s attorney.
Evans’ daughter is attending school, participating in gymnastics and has received all the recommended medical care.
“It’s far from the death sentence or life not worth living that some would have you believe,” Lichte said.
In related cases, the Washington State Court of Appeals upheld a $50 million verdict last fall in the case of a couple whose son was born with severe birth defects due to a genetic disorder that the parents specifically asked that he be screened for. Lab mistakes led to incorrect information being given to the parents.
The Oregon Court of Appeals said last month that the parents of two boys with muscular dystrophy can proceed with an $11 million lawsuit, in which they argue they never would have conceived another child if doctors treating their oldest son had diagnosed his muscular dystrophy in a timely manner.