GENETIC TESTING: DOCTORS OWE DUTY TO WARN PATIENT'S PARENTS

July 15, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

When a physician orders, or should order, genetic testing on a child who has an inherited malady, can the doctor be held liable for failing to warn the parents that any other child they may conceive has a 50 percent chance of suffering the same affliction?

Yes, according to the Minnesota Supreme Court, in a ruling based on "the practical reality of the field of genetic testing and counseling." Molloy v. Meier, 2004 WL 1118696 (May 20).

The case involved children with "Fragile X syndrome." The complaint alleged that the defendants (some physicians and their employers) were negligent in not testing the oldest child for this condition and not warning the parents that there was a 50-50 chance that any other children they might have would wind up with mental impairment from this disorder.

Acting without this warning, the mother, Kimberly Molloy, had another baby who was born with Fragile X syndrome.
The defendants argued, however, that they did not owe a duty of care to the parents.

Disagreeing, the trial judge denied a defense motion for summary judgment, but certified this question for interlocutory appeal: "Does a physician who allegedly fails to test for and diagnose a genetic disorder in an existing child leading to the birth of a subsequent child with that disorder owe a legal duty to the child's parents?"
Here are some highlights of Justice Helen M. Meyer's opinion affirming the trial judge (with various omissions not noted in the quoted text):

"Only a few other jurisdictions have addressed the question of whether a physician owes a legal duty to the family of a patient who received negligent care in the field of genetics.

"In a case most analogous to the instant one, the New Jersey Supreme Court held that a physician owes a duty to members of the patient's immediate family who might be injured by the physician's breach of duty to the patient. Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834, 839 (1981).

"The court held that liability could extend to the patient's family where a doctor's failure to diagnose a first-born child with cystic fibrosis led to the birth of a second child with that disorder and it was foreseeable that the parents would rely on the diagnosis. Cf. Lininger v. Eisenbaum, 764 P.2d 1202, 1205 (Colo. 1988) (holding that a physician's failure to diagnose the hereditary nature of a child's blindness that led his parents to conceive a second blind child stated a cause of action).

"The Supreme Court of Florida has also held that a duty exists where the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties. Pate v. Threlkel, 661 So.2d 278, 282 (Fla. 1995).

"In Pate, the defendant physician diagnosed the plaintiff's mother with medullary thyroid carcinoma, a genetically inheritable disease. When the plaintiff learned that she also carried the disease, she sued, alleging that the defendant should have known of the inheritable nature of the disease and owed a duty to inform her mother that the plaintiff may have carried it as well.

"The plaintiff presented expert testimony that the prevailing standard of care required physicians to inform patients of the genetically transferable nature of their conditions. The Florida Supreme Court noted that the standard of care was developed for the benefit of third parties and therefore held that a physician owes a duty to those third parties of whom the physician has knowledge.

"Other courts have drawn upon the prevailing standard of care to define the duties physicians owe in the context of genetic counseling. For example, the California Court of Appeals found no duty to parents to disclose the possibility of having a child with Tay-Sachs disease when the physicians did not have any reason to suspect that the parents were in a high-risk group for the disease. Munro v. Regents of University of California, 215 Cal.App.3d 977, 263 Cal.Rptr. 878, 882 (1989).

"That court recognized that it was impossible to test all patients and relied on expert testimony that the prevailing standard of care required testing only when parents had specific ethnic backgrounds.
"Similarly, the New Jersey Court of Appeals relied upon the presumed medical knowledge at the time [of treatment] to find a duty to warn the patient's immediate family of a patient's genetically transferable condition. Safer v. Estate of Pack, 291 N.J.Super. 619, 677 A.2d 1188, 1192 (App. Div. 1996).

"Cases such as Safer, Munro and Pate recognize that the field of genetic counseling is rapidly evolving as new methods of testing become more practical and reliable, and the legal duty of physicians will be driven, at least in part, by the standard of care in the medical profession. As this occurs, it is unlikely that the medical community will adopt a standard of care that is either unduly burdensome or unbeneficial to patients.

"Our decision today is informed by the practical reality of the field of genetic testing and counseling; genetic testing and diagnosis does not affect only the patient. Both the patient and her family can benefit from accurate testing and diagnosis. And conversely, both the patient and her family can be harmed by negligent testing and diagnosis.

"Molloy's experts indicate that a physician would have a duty to inform the parents of a child diagnosed with Fragile X disorder. The appellants admit that their practice is to inform parents in such a case. The standard of care thus acknowledges that families rely on physicians to communicate a diagnosis of the genetic disorder to the patient's family.

"It is foreseeable that a negligent diagnosis of Fragile X will cause harm not only to the patient, but to the family of the patient as well. This is particularly true regarding parents who have consulted the physicians concerning the patient's condition and have been advised of the need for genetic testing.

"We therefore hold that a physician's duty regarding genetic testing and diagnosis extends beyond the patient to biological parents who foreseeably may be harmed by a breach of that duty.
"In this case, the patient suffered from a serious disorder that had a high probability of being genetically transmitted and for which a reliable and accepted test was widely available. The appellants should have foreseen that parents of childbearing years might conceive another child in the absence of knowledge of the genetic disorder.

"The appellants owed a duty of care regarding genetic testing and diagnosis, and the resulting medical advice, not only to S.F. [Molloy's first child] but also to her parents.

"In recognizing this duty, we apply the principles of negligence law set forth in Skillings and Togstad and conclude that the duty arises where it is reasonably foreseeable that the parents would be injured if the advice is negligently given. '[T]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.' Connolly v. Nicollet Hotel, 254 Minn. 373, 381, 95 N.W.2d 657, 664 (1959) (quoting Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928)).

"Under our standard of review for summary judgment, there is sufficient evidence in the record to indicate that each of the appellants was on notice that S.F. displayed symptoms of Fragile X but that the testing was never carried out."

"Appellants suggest that recognizing a duty to Molloy would extend a physician's duty to an unreasonable extent, requiring the physician to seek out and inform distant relatives. The court of appeals held that the physician must notify a biological parent to discharge his or her duty. Molloy concedes that the appellants could have discharged their duty by informing an appropriate contact person, who in this case would be [S.F.'s] the custodial parents, or Molloy, the non-custodial biological parent.

"In light of this concession, the facts of this case, and the limitation of the certified question to whether a duty extends to a minor patient's parents, we need not, and do not, address whether the duty recognized here extends beyond biological parents who foreseeably will rely on genetic testing and diagnosis and therefore foreseeably may be injured by negligence in discharging the duty of care."

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