Court Nixes ‘Wrongful Life’ Framing in Upholding $38M Fertility Malpractice Award

By Andrew G. Simpson | February 8, 2024

The Connecticut Supreme Court has ruled that claims involving the evolving field of assisted reproductive technologies can be decided using traditional negligence and medical malpractice principles and do not require consideration as novel “wrongful life” causes of action.

The high court upheld a trial court’s $38 million award to parents over a state hospital’s errors in providing artificial insemination and prenatal care that resulted in the death of one twin girl and the birth of a twin boy with severe, lifelong physical and cognitive disabilities.

The state’s University of Connecticut Health Center had challenged the award, arguing that the claims were actually “wrongful life” claims and the state does not and should not recognize them as causes of action. The state argued as well that the claims were mainly about informed consent, not malpractice, and thus the hospital was shielded by sovereign immunity.

The trial court struck the prenatal care claim but denied the hospital’s motion to strike as to the fertility treatment claims, concluding that they were ordinary medical malpractice claims for which there was no immunity for the state.

The high court agreed that the claims were properly construed and adjudicated as conventional medical malpractice claims and not, as the state contended, wrongful life claims. The high court noted that the child’s parents presented the claims as medical malpractice and that is how the trial court addressed them as well. The high court said it was not necessary to reach the wrongful life issue in the case.

The term ”wrongful life” refers to a claim, brought by a child, based on the theory that that child would not have been born but for the defendant’s negligence, such as when a medical professional fails to prevent an unwanted pregnancy by negligently performing a birth control or abortion procedure.

The court differentiated the case before it from wrongful life claims because the state was directly responsible both for the child’s birth and for his condition. Moreover, in most wrongful life cases, but for the defendant’s negligence, there never could have been a healthy child, whereas, in the present case, there was undisputed testimony that antiviral medications were available that could be used to prevent or treat the mother’s infection.

The plaintiffs sought to recover damages for the alleged medical malpractice in connection with the therapeutic donor insemination (TDI) services and prenatal care provided to them at the UConn hospital. Hospital staff gave them general information about TDI risks, approved sperm banks, and testing that TDI patients are required to undergo, including testing for cytomegalovirus (CMV), a herpes virus. Because of the risks to fetal health associated with CMV in early pregnancy, it was necessary for the hospital to determine both the mother’s and the sperm donor’s CMV status. They were informed that if a patient tests negative for CMV, only CMV negative donor sperm should be used. Professional practice also held that CMV positive sperm should only be used with the patient’s consent.

The mother, who had tested negative for CMV, underwent a successful procedure using sperm from a donor who it turned out was CMV positive. She became pregnant with twins, a boy and a girl. The physician did not check the donor’s CMV status and allegedly did not seek or obtain the mother’s informed consent for the procedure using CMV positive sperm. Throughout her pregnancy, the mother received care from the hospital’s prenatal care staff. When she was 22 weeks pregnant, an ultrasound revealed that both fetuses displayed conditions associated with an in utero CMV infection. The prenatal care physician did not perform any follow-up tests to rule out a CMV infection, inform the mother of the ultrasound results, or include a copy of those results in her medical records.

Subsequently, it was discovered that the female twin had died in utero from a severe CMV infection, and the son was born with debilitating, lifelong medical conditions as a result of congenital CMV. The son is unable to eat, communicate, or attend to any of his personal needs in a normal or independent manner. In addition, he suffers from global developmental delay and cognitive, hearing, and motor deficits. He will require constant services and care for the remainder of his life, including physical and occupational therapies and a home health aide.

The high court found there was no merit to the state’s contention that the plaintiffs had failed to establish a valid, conventional medical malpractice claim with respect to their son’s injuries.

The court rejected the state’s arguments that any damages awarded would be “unavoidably speculative and predicated on the impermissible concept that nonexistence can be preferable to impaired existence.” The court noted that it had previously rejected versions of those arguments when it recognized a cause of action for wrongful birth in a 1982 case (Och v. Borrelli ) involving a negligently performed sterilization procedure.

Moreover, the Supreme Court rejected the state’s argument that the standard formula for calculating damages in tort, namely, making the plaintiff whole by returning him to the position he would have been in but for the defendant’s negligence, precluded any recovery in this case insofar as the son arguably would not have existed but for the state’s conduct. The court commented that “such a rigid conception of tort damages left no room for the substantial technological advancements that have occurred in the field of assisted reproductive technologies.”

The court said it reviewed the state’s challenge to the damages award in the light of the underlying purposes and principles that inform tort law, namely, “compensation for innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct.”

In the present case, all of those considerations weighed in favor of holding the state liable, the high court found. The son was an innocent victim whose serious injuries were caused by the state’s failure to adhere to the applicable standard of care. The court added that if it were to deny recovery to children who, like the son here, were injured by the negligent provision of assisted reproductive technologies, there would be little to deter the state or other providers of artificial insemination services from such negligence and its consequences.

The court concluded that the son “was no less entitled to be compensated financially for those damages than are other victims of medical malpractice, the trial court’s award of damages was fully commensurate with the injuries that he suffered, and it restored him as nearly as possible to the position that he had occupied before the state’s negligence, which was consistent with the underlying goals and purposes of tort law.”

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