Wrongful birth case crosses state lines

A Maryland couple alleges that if it weren't for the erroneous interpretation of a fetal test for cystic fibrosis by two geneticists at North Carolina-based Laboratory Corporation of America, they would have aborted the child who was born with the disease.

Karen and Scott Hood filed a wrongful birth lawsuit against the company, seeking to recover money to cover the costs of caring for an ill child. But they've run into a problem that an increasing number of couples could face: Maryland, where they live, recognizes parents' right to recover damages for the wrongful birth of a child; North Carolina, where the lab performed the tests, does not.

Not surprisingly, the couple wants Maryland's law to apply; the company wants North Carolina's to apply.

In a preliminary ruling in June, U.S. District Court Judge Catherine C. Blake asked the Maryland Court of Appeals, the state's highest court, to resolve the conflict. Oral arguments are expected to take place in the fall.

"Indeed if a medical testing company were only subject to the laws of the state in which the actual testing was conducted, and not the laws of the state in which its patients were located, medical testing companies would have an incentive to locate in states that provide the most protection to the company and the least protection to patients," Blake wrote.

The decision, legal experts say, could mean more litigation for doctors if these cases are allowed to reach across state lines.

"As genetic technologies improve and we have more sophisticated kinds of testing, the legal structures are breaking down," said attorney Susan L. Crockin, a legal expert on reproductive genetics and a consultant to the Genetics and Public Policy Center at Johns Hopkins University. The center studies human genetics and the related ethical, legal and social concerns.

State high courts and federal court decisions covering 25 states and the District of Columbia have upheld wrongful birth claims, according to a 2005 article Crockin authored for Reproductive BioMedicine Online, an independent international journal on human conception.

Because not all states acknowledge wrongful birth, "it's inevitable that we are going to have more issues around state laws with national testing," Crockin said.

The Maryland-North Carolina conflict

Karen Hood had an amniocentesis in 2001 to find out if her fetus had cystic fibrosis; she and her husband carry the gene. Two LabCorp geneticists in North Carolina determined that the fetus did not have the disease, but Luke Hood was born with cystic fibrosis in May 2002. LabCorp issued a corrected report in September 2002 showing Luke was positive for the disease, and the geneticists admitted that the original report was "incorrect," court records show.

The Hoods sued LabCorp in federal court in 2004 under Maryland's wrongful birth claim, which the Maryland Court of Appeals recognized in a 1993 decision.

The North Carolina Supreme Court, in a 1985 decision, rejected a wrongful birth claim, finding that the parents of a child born with severe congenital anomalies did not sustain legal injury. The court also said it did not want physicians and health care professionals to be legally responsible for genetic defects they did not cause.

E. Dale Adkins III, the Hoods' attorney, said it would be unfair for the North Carolina law to apply in the Hoods' case.

"People who get treatment in a given state expect to have the law of that state apply, and it would not be fair for a large national lab company to choose states whose laws are more favorable and simply send everybody's specimens to that state," he said.

The Maryland federal district court agreed in its June ruling that to try the case under North Carolina laws would deny the parents their right to a wrongful birth claim. Under Maryland's "choice of law" rules for multistate cases, Blake noted, the place where the injury occurred determines which laws should apply.

"The injury in this matter took place in Maryland because that is where Luke Hood was born," the ruling states.

LabCorp declined to comment on the case, but according to court records, the company argues that the 4th U.S. District Court of Appeals, which includes Maryland and North Carolina, has recognized a "common sense" exception to Maryland's choice of law rule. Under the exception, the court said that if the issue is the standard of care, doctors can expect to have their state laws apply because that is where they render their care.

LabCorp argues that its potential liability stems from the misinterpretation of the Hoods' test results in North Carolina, and that the state's laws should dictate whether they breached the standard of care.

Blake has asked the Maryland Court of Appeals to address whether the 4th Circuit's standard of care exception should apply in this case because "Maryland and North Carolina simply provide dramatically different legal consequences for violating the standard of care when interpreting a genomic lab specimen obtained during pregnancy."