Genetic Malpractice Claims Raise Legal and Ethical Issues

By Elaine A. Lisko, Health Law & Policy Institute

The increasing use of genetic tests, especially as part of prenatal examinations, has resulted in the development of a new theory of tort liabilityógenetic malpractice. This theory falls within the broader field of medical malpractice and requires proof of the same elements. Nevertheless, because of the nature of the information that genetic tests uncover and the decisions that are made on the basis of that information, genetic malpractice claims raise unique ethical and legal concerns.

Genetic malpractice claims are brought against physicians, nurses, other health care providers, hospitals, and testing laboratories. Genetic malpractice claimants allege that these individuals and entities were negligent and that this negligence resulted in the birth of a child with a genetic disease. The alleged negligence may be based upon the failure to recommend an appropriate genetic test, the failure to administer the test correctly, the failure to interpret the test accurately, or the failure to advise the childís parents of the test results, to name just a few examples.

Genetic malpractice claims are couched most often as wrongful birth and wrongful life actions. The biggest differences between these two types of actions are the identities of the claimants and their respective "rights." In a wrongful birth action, the claimants are the childís parents. The parents assert that, but for the health care providersí negligence, they would have had the opportunity to decide not to conceive or, once they had conceived, not to bring the fetus to term. In a wrongful life action, the claimant is the child. The child, through the childís parents or guardian, asserts that, but for the health care providersí negligence, the child would not have been born.

Wrongful birth actions raise the following types of legal and ethical issues:

Wrongful life actions raise even more sensitive legal and ethical issues, including: The sensitivity of these issues and their broader policy implications have led some courts and legislatures to bar wrongful birth and wrongful life actions altogether. Minnesota, Missouri, and Pennsylvania are among the states that bar both types of actions. Other states, like Arizona, Illinois, and Texas, recognize wrongful birth actions but not wrongful life actions. California, New Jersey, and Washington are among the minority of states that allow both types of actions.

A federal district court, applying New Jersey law, ruled a little over a month ago that the parents of twin daughters, one of whom had a genetic disease, could bring a wrongful birth action against an amniocentesis laboratory that allegedly misdiagnosed genetic samples. See Provenzano v. Integrated Genetics, No. 97-1460(MLC) (D.N.J. Oct. 13, 1998). According to the court, a laboratory that supplies amniocentesis samples to a physician has a duty to provide accurate information so prospective parents may decide whether to terminate the pregnancy. The court noted that a wrongful birth action is distinct from a wrongful life action and ruled that a wrongful birth action, in contrast to a wrongful life action, does not require parents to prove that they would have aborted the fetus as a prerequisite to maintaining the action. As a result, at least in New Jersey, it appears that the third legal/ethical issue noted above regarding wrongful birth actions has been resolved.

11/23/98