How reproductive genetics puts ob/gyns at legal risk

November 1, 2004

Using reproductive and genetic technologies to provide prospective parents with information about a future child or to avoid having a child with a genetic abnormality is an emerging field of medicine-one that has its share of legal risks, according to a report entitled "Reproductive Genetics and the Law."

Using reproductive and genetic technologies to provide prospective parents with information about a future child or to avoid having a child with a genetic abnormality is an emerging field of medicine-one that has its share of legal risks, according to a report entitled "Reproductive Genetics and the Law." Here's an overview of some of the risks ob/gyns may face:

Wrongful birth claims. The report found 26 decisions from state high courts or federal courts that recognize and uphold the ability of a plaintiff to sue for wrongful birth, regardless of the impairment (whether it is genetic or non-genetic). These decisions set precedent for future lawsuits, and generally allow plaintiffs to recover damages for "extraordinary expenses due to the child's affliction." Just six states refuse to recognize this type of action.

Wrongful life claims. The report found only four decisions from state high courts or federal courts that recognize wrongful life claims. These claims generally allow plaintiffs to recover damages related to the treatment of the patient's ailment. The vast majority of states with state or federal court decisions on this issue (25) refused to recognize this type of action.

Failure to warn. Failure to provide accurate genetic information to patients or family members has been the cause of lawsuits against physicians as well. In these cases, courts look to see if a duty has been established between the physician and the patient or family member. These cases also raise additional legal questions, including how a physician should meet the duty to warn and "how to balance that duty with a duty of confidentiality to the patient." Because there is limited case law on this subject and state laws vary, the answers to these questions are yet to be determined.

The full report, written by Susan L. Crockin, Esq., is available from the Washington, D.C.-based Genetics & Public Policy Center Web site at http://www.dnapolicy.org/policy/legalART.jhtml.