Mom seeks medical expenses for child with cystic fibrosis

BOZEMAN, Mont. (AP) -- 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 $14.5 million in damages from Park Clinic in Livingston, Billings Clinic's Bozeman OB/GYN, nurse practitioner Peggy Scanson and Dr. William Peters - including $10 million for her daughter's medical and psychological care. The girl, nearly 6, 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.

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.

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.

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.

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