$2.3 million jury verdict v. hospital reversed on appeal.

CASE ON POINT: Hall v. Dartmouth Hitchcock Med.Ctr.,No.2004-708(N.H.4/25/2006 N.E.2d -NH

CASE FACTS: Sherry Hall learned that she was pregnant in December 2000. In March 2001, after initial screening disclosed that her fetus carried an elevated risk for Trisomy 18, Wendy Wilson, Hall's primary, prenatal care provider, and a certified nurse midwife, referred her to Dartmouth Hitchcock Medical Center for genetic counseling. A "trisomy," a chromosomal disorder in which there is an extra copy of one or more chromosomes in a person's cell structure. On March 7, 2001, the Halls met with Valerie Lacroix, a certified genetic counselor at the hospital, and Dr. Emily Baker, a hospital physician, board-certified in maternal-fetal medicine. At that point Hall was between sixteen and seventeen weeks gestation. An ultrasound conducted that day revealed a normal fetal morphology, with the exception of continually clenched hands, a marker for Trisomy 18. As a result, Dr. Baker and Valerie Lacroix recommended amniocentisis to provide further information about the condition of the fetus. Hall told Lacroix that she would terminate the pregnancy if the testing revealed any chromosome abnormalities. Dr. Baker withdrew amniotic fluid from Hail for analysis by the cytogenetics hospital's laboratory. Hall was aware that it would take at least two weeks before results would be obtained. She told Lacroix on March 15, 2001, that she wanted to terminate her pregnancy, but Lacroix advised her to wait for the results of the amniocentesis before making a final decision. The cytogenetics laboratory processed the amniotic fluid and created a karyotype of the fetus' chromosomes,. The karyotype showed the "characteristics of a normal male." A follow up ultrasound revealed persistently clenched hands and, in addition, a possible "rocker bottom" foot, a congenital deformity in which the foot exhibits a convex, rocker-like shape. Lacroix, due to her level of concern, ordered the laboratory to save any remaining amniotic fluid. She did not share this information with the Halls. No member of the hospital's genetic counseling team contacted the Halls regarding the test results. After an ultrasound on April 24, 2001, the Halls met with Dr. Michelle Lauria, a hospital physician, board-certified in maternal-fetal medicine, flail was between twenty-three and twenty-four weeks of gestation. Dr. Lauria would perform abortions only up to twenty-two seeks of gestation. However, termination of pregnancy services were available on demand and without proof of medical necessity in Boston up to twenty-four weeks of gestation At that meeting, Lauria reported to the Halls that in addition to the continually clenched hands and possible rocker bottom foot, the fetus exhibited additional problems, including lower micrognathia--an unusually small lower jaw, a small umbilical vein varix, possible heart problems and "lemon head deformity," a convexity in the frontal portion of the head which can suggest an underlying brain abnormality. Dr. Lauria described a broad range of potential outcomes, ranging from a "very minor problem that perhaps would require some physical therapy or maybe some surgery, all the way to being severely affected, dying at birth or being severely mentally retarded" without discussing termination of the pregnancy. The Halls immediately decided to entrust themselves to medical care providers in Boston. Hall was admitted to Massachusetts General Hospital (MGH) in Boston. After consulting with experts in maternal-fetal medicine at MGH, Mrs. Hall decided to carry, her pregnancy to term. On July 25, 2001, Brandon Hall was born at Brigham & Womens Hospital in Boston with multiple, severe congenital anomalies. A sample of blood was withdrawn from the umbilical cord and sent to the hospital's cytogenetics laboratory for analysis. Due to the situation the sample was scrutinized with painstaking care. Ultimately it led to a diagnosis of Partial Trisomy 9q, which was more than "extremely rare." It was the first reported occurrence of this particular configuration of chromosomal abnormality. The Halls brought a wrongful birth suit against the hospital. After a trial, a jury returned a verdict against the hospital awarding the Halls $2.3 Million in damages. The hospital appealed.

COURT'S OPINION: The Supreme Court of New Hampshire reversed the judgment of the trial court. The court held, inter alia, that although the hospital conceded that its genetic counseling team failed to meet the applicable standard of care, expert testimony, nevertheless, established that the hospital informed the Halls of "an increased possibility" that birth might be given to a child with severe defects.

LEGAL COMMENTARY: The failure to diagnose the rare genetic disorder was beyond the standard of care required.