Prenatal Genetic Testing: When is your child’s birth defect the result of medical malpractice?

Prenatal genetic testing can be a powerful tool for parents. Proper diagnosis gives parents the opportunity to make informed medical decisions, either to prepare for a child with special needs or for termination of pregnancy. There may be recourse for parents of children with negligently undiagnosed prenatal genetic conditions.

What are genetic disorders?

Changes within a fetus’ chromosomes, the structures that carry genes, can cause physical abnormalities or illnesses known as genetic disorders.

More specifically, these genetic disorders can be caused by a mutation in one gene commonly known as a monogenic disorder, or by mutations in multiple genes known as multifactorial inheritance disorder. They can also be caused by a combination of gene mutations, environmental factors, or by damage to chromosomes, which means there are changes in the number or structure of entire chromosomes.

When a harmful change in the DNA occurs, it can affect a fetus’ normal development. Genetic disorders can be non-hereditary and caused by unexplained genetic mutations in utero, where other genetic disorders are hereditary, which means they can be passed on, or inherited, by one or both of the parents without their knowledge, as they may experience no symptoms themselves.

Aneuploidy is a genetic condition in which there are missing or extra chromosomes with Trisomy being the most common form. Trisomy occurs specifically when the fetus has an extra chromosome. The most well known disorder of this kind is Down syndrome, however, there are others.

In fact, there are many genetic disorders caused by changes in the number of a person’s genes or chromosomes: Turner syndrome, Klinefelter syndrome, and Cri du chat syndrome to name a few.

Inherited disorders are caused by changes in genes called mutations and are the result of either one or both parents being carriers of the genes causing the mutation. Hereditary genetic disorders include Sickle cell disease, Cystic fibrosis, and Tay-sachs disease.

What leads to incorrect diagnosis?

A physician or genetic counselor can negligently misdiagnose genetic disorders in a few different ways. Without any diagnostic testing, a physician or genetic counselor may fail to provide accurate information to parents based on the potential risks due to age or carrier status. The older the mother at conception, the higher the risk of having a child with a genetic disorder. Where carrier status informs parents of the risks that come with having a genetic predisposition to a specific genetic disorder.

The physician may also be considered negligent if they refuse to perform invasive genetic testing or fail to inform the patient of the available procedures. Additionally, the physician may fail to select a reputable laboratory to analyze genetic material or misreads the test results.

Lastly, carrier testing is negligently performed if the results of such procedures are misinterpreted. In the case of Levy vs. Legacy, these issues of negligence were at the forefront of the jury’s decision.

Levy vs. Legacy: Genetic disorder ruled to be the result of malpractice

In the case of Levy vs. Legacy a Portland couple was awarded $3 million dollars in damages due to a negligently missed diagnosis of down syndrome. The jury decided unanimously in favor of the parents. This case is the first one of its kind in the nation.

David K. Miller, Miller & Wagner Partner and the attorney representing the Levy family, said his clients love their daughter deeply and did not want the case to negatively influence the public’s perception of their relationship with their daughter. Miller went on to say the family sued for practical reasons. They worried about being able to provide for their daughter’s needs throughout her lifetime. Experts testified the child would continue to need speech and physical therapy, and that there was also a high probability she would face many other health concerns over time. The Levys were told that their daughter would likely never be able to live on her own or earn a sufficient living.

In the United States, the most recent data shows that 67 percent of women who receive a prenatal diagnosis of Down syndrome make the difficult decision to choose to terminate the pregnancy. Some of the lifelong medical illnesses associated with Down Syndrome can greatly impact an individual’s quality of life. It is because of the health risks: heart defects, hearing loss, vision loss and a myriad of other difficult health issues, that parents make this extremely difficult decision.

Legacy Health was found by the jury to be negligent on five fronts.

Let us evaluate your case

At Miller & Wagner, our attorneys investigate and present damage claims for negligent screening for birth defects. These cases can result in a damage claim for wrongful birth. Our attorneys offer a free initial consultation to discuss your case. With offices in Eugene and Portland, our attorneys represent families throughout Oregon and southwestern Washington.