Montana mom sues clinic for $14million for wrongful birth after her daughter was born with severe cystic fibrosis

By Associated Press and Alexandra Genova For Dailymail.com

Published: 09:18 EDT, 3 February 2016 | Updated: 07:42 EDT, 5 February 2016 Dr William Peters is being sued by a Montana mom because health practitioners failed to diagnose her unborn daughter's cystic fibrosis, denying her a chance to have an abortion

A Montana mother 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 $14.5million in damages from Park Clinic in Livingston, Billings Clinics Bozeman OB/GYN, nurse practitioner Peggy Scanson and Dr William Peters - including $10million for her daughter's medical and psychological care.

The girl, who is now nearly six, has a severe form of cystic fibrosis and one medication needed to treat it costs up to $300,000 a year, court records said.

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.

Evans filed the lawsuit in October 2011, arguing that Scanson should have given Evans a blood test to determine if she was a carrier of cystic fibrosis, under the recommended standard of care.

Evans said she told Scanson that she and her husband were concerned about cystic fibrosis and that they had planned to terminate the pregnancy if the fetus tested positive for serious abnormalities, the lawsuit said.

The couple's attorney claimed that Scanson discussed tests for various permanent and abnormal fetal diseases and gave Kerrie Evans brochures, including one on cystic fibrosis, reported the Bozeman Daily Chronicle. Kerrie Evans is also seeking damages from Park Clinic in Livingston (left) Billings Clinic's Bozeman OB/GYN (right) and nurse practitioner Peggy Scanson

Evans said that when she saw the cystic fibrosis brochure, she expressed her and her husband’s concern about the disease and that they had plans to abort the fetus if it carried any severe abnormalities.

Cystic fibrosis 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.

This request is against public policy and would set a dangerous precedent
Park Clinic

In response, Park Clinic and Scanson said Evans only expressed concern about Down syndrome, apparently failed to read all the information given to her and did not request a blood test to determine if she was a carrier of cystic fibrosis.

Plus, they argued, Montana law does not recognize a 'wrongful birth' as a legal cause of action that would allow Evans to seek damages for the very existence of her daughter.

'This request is against public policy and would set a dangerous precedent,' Park Clinic and Scanson's attorneys said in a motion seeking to dismiss the case. Judge Mike Salvagni will hear the trial, which began on Monday. He said term 'wrongful birth' was misleading but case could be heard under 'delayed diagnosis and the loss of treatment time'

Lawrence Nelson, an attorney and associate professor of philosophy at Santa Clara University, said Evans' is a malpractice case based upon the lack of informed consent.

In such a case, the plaintiff would have to prove that they would have done something different if they had the 'standard of care' information about their options, he said.

Peters and Bozeman OB/GYN said they did obtain informed consent from Evans.

The clinic and Scanson also argued that they did not cause Evans' daughter to have cystic fibrosis and could not have cured it, so they could not be considered negligent.

District Judge Mike Salvagni rejected the motion to dismiss, saying he was not convinced the case would open the door to a wide range of claims by other parents.

Evans' claims can be compared to delayed diagnosis and the loss of treatment time, Salvagni said.

But he also chided the defendants for using the term 'wrongful birth', which he called misleading and inflammatory.

According to Bozeman Daily Chronicle, the scheduled three-week trial by jury began on February 1 in Gallatin County District Court.

Last fall, the Washington State Court of Appeals upheld a $50million verdict 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 the parents of two boys with muscular dystrophy can proceed with an $11million lawsuit in which they argue they never would have conceived another child if doctors treating their oldest son had timely diagnosed his muscular dystrophy.

Montana mom sues clinic for $14m after daughter was born with cystic fibrosis
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