Judge: Parents of child with lung disease can sue

BOZEMAN (AP) — A Montana couple who say they would have terminated a pregnancy if they had known their daughter would be born with cystic fibrosis can move forward with their lawsuit against their health care providers, a state judge has ruled.

District Judge Mike Salvagni ruled Monday that Kerrie and Joe Evans' claims should be heard in court, the Bozeman Daily Chronicle reported (http://bit.ly/MH9eL1 ) Thursday.

The lawsuit, filed in October, names several health care providers, including Livingston HealthCare and nurse Peggy Scanson. It seeks damages for emotional distress and their daughter's medical costs and a requirement that the clinic establish a checklist to ensure patients are informed of all genetic testing available and given the opportunity to accept or decline it in writing.

The lawsuit claimed that Kerrie Evans, who was 38 when she became pregnant, told Scanson that the pregnancy was unplanned and she and her husband had "the most private of discussions about terminating the pregnancy in the event the fetus tested positive for serious fetal abnormalities."

The Gardiner couple said Scanson failed to exercise a standard of care by failing to have them accept or reject blood tests to determine if they carried the recessive gene that would have given their unborn child a 25 percent chance of being born with cystic fibrosis, a disease that causes mucus to build up in the lungs.

The couple also alleged that Scanson failed to order a test for the disease as part of risky genetic testing Kerrie Evans underwent during the first trimester of her pregnancy, even though she had expressed her concerns about the disease to Scanson.

The clinic and Scanson asked Salvagni to dismiss the case, calling it a "wrongful birth" lawsuit for which there was no precedent in Montana law. They argued legislators were better suited to deal with the complex, moral issue.

The Evanses are seeking damages "for a missed opportunity to abort their daughter," wrote Julie Lichte, attorney for Scanson and Livingston HealthCare. Allowing the case to proceed "will ask a jury to award them damages for the very existence of their daughter," the attorney said.

Salvagni rejected the argument and its use of the "wrongful birth" label, which the judge noted in bold and underlined capital letters.

"The 'wrongful birth' label is not instructive as any 'wrongfulness' lies not in the birth but in the negligence of the physician," he wrote.

Lichte also contended her clients' actions did not cause damage to the Evanses.

"Cystic fibrosis is an incurable, genetic disease that is inherited at the time of conception," she argued. "Neither (Livingston HealthCare) nor Scanson caused Baby Evans to contract cystic fibrosis and neither could have prevented this disease."

The couple's attorneys, Casey Magan and Russ Waddell, said the case is similar to a misdiagnosed cancer patient receiving damages for their decreased opportunity to fight the disease as well as their increased pain and suffering. Both cases amount to negligence, they argued, and the judge agreed.

The case is about "Kerrie's lost right to make an informed, intelligent decision about whether or not to terminate her pregnancy," Salvagni wrote. Ruling otherwise would "immunize from liability those in the medical field providing guidance to persons who would choose to exercise their constitutional right to abort their fetuses, which, if born, would suffer from genetic (or other) defects."

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