Abstract
The topic to be discussed in this paper is narrowly defined: the potential malpractice liability of physicians and personnel associated with them in the conduct of genetic screening. The paper’s title is perhaps inappropriately contracted, since a measure of potential legal liability in the screening context arises from doctrinal bases other than the principles of medical malpractice. Topic titles to the contrary notwithstanding, those additional principles will not be ignored in the discussion that follows.
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References
Fletcher, J., Rob!in, R. and Powledge, T. cite six genetic screening program directors for the statement that “the risk involved in taking the blood sample for testing (is) negligible.” In Ethical, Social and Legal Dimensions of Screening for Human Genetic Disease. Miami: Symposia Specialists, 1974, p. 140.
Waltz, J. and Thigpen, C., Genetic screening and counseling: the legal and ethical issues, Northwestern Univ. Law Rev. 69: 696: 700, (1973).
Waltz, J. and Thigpen, C., Genetic screening and counseling: the legal and ethical issues, Northwestern Univ. Law Rev. 69: 696: 700, 744(1973).
See Milunsky, A. and Reilly, P., The “new” genetics: emerging medicolegal issues in the prenatal diagnosis of hereditary disorders, Amer. J. Law Med. 1: 71, (1975).
Waltz, J. and Inbau, F., Medical Jurisprudence. New York, Macmillan Company, 1971, p. 38 et seq.
The lawyers’ term “tort” has an evil connotation. It comes from the Latin tortus, meaning twisted or crooked. Courts employ the word tort as a label to identify almost any wrongful act, other than a breach of contract, for which a civil action ‐‐ as distinguished from a criminal charge ‐‐ can be maintained.
See, e. g., Loudon v. Scott, 58 Mont. 645, 194 Pac. 488 (1920), Pike v. Honsinger, 49 N.E. 760 ( Ct. App. N.Y. 1898 ).
See e. g., Fortner v. Koch, 272 Mich. 273, 261 N.W. 762 (1935), Ritchey v. West, 23 111. 385 (S. Ct. 111. 1860 ).
Waltz, J. and Inbau, F., Medical Jurisprudence. New York, Macmillan Company, 1971, p. 54–74.
.68 Ohio App. 345, 41 N.E. 2d 255 (1941).
This controversial concept is analyzed as length in Waltz, J. and Thigpen, C.: Genetic screening and counseling: the legal and ethical issues, Northwestern Univ. Law Rev. 69:696:759 et seq.,(1973).
.31 Mich. App. 240, 187 N.W. 2d 511 (1971).
.31 Mich. App. at 257, 187 N.W. 2d at 519. The court added: If the negligence of a tortfeasor results in conception of a child by a woman whose emotional and mental makeup is inconsistent with aborting or placing the child for adoption, then, under the principle that the tortfeasor takes the injured party as he finds him, the tortfeasor cannot complain that the damages that will be assessed against him are greater than those that would be determined if he had negligently caused the conception of a child by a woman who was willing to abort or place the child for adoption. 31 Mich. App. at 260, 187 N.W. 2d at 520.
In some states a plaintiff cannot recover for mental suffering alone, unaccompanied by any physical injury. See, e. g. Bishop v. Byrne, 265 F. Supp. 460, 465 (S.D. W. Va. 1967).
Since the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), it would not be difficult to demonstrate that a lawful abortion could have been obtained.
In Troppi v. Scarf, 31 Mich. App. 240, 260, 187 N.W. 2d 511, 520 (1971), the court said: While the reasonableness of a plaintiff’s efforts to mitigate is ordinarily to be decided by the trier of fact, we are persuaded to rule, as a matter of law, that no mother, wed or unwed, can reasonably be expected to abort (even if legal) or place her child for adoption.
.281 A. 2d 616 (Del. Super. 1971), appeal dismissed sub nom., Wilmington Medical Center, Inc. v. Garrison, 298 A. 2d 320 (1972).
.251 Cal. App. 2d 303, 59 Cal. Rptr, 463 (1967).
.251 Cal. App. 2d at 323, 59 Cal. Rptr. at 476.
See, e. g., Kreyling v. Kreyling, 20 N.J. Misc. 52, 23 A. 2d 800 (1942); Shaheen v. Knight, 11 Pa. D. & C. 2d 41 (Lycoming 1957). Cf. Jones v. Jones, 186 Md. 371, 46 A. 2d 617 (1946).
See Prosser, W. » Torts. St. Paul: West Publishing Company, 4th Ed. 1971, § 124.
For an extensive discussion of the informed consent concept, consult Waltz, J. and Scheuneman, T. Informed consent to therapy, Northwestern Univ. L. Rev. 64: 628, (1970)
Genetics Research Group, Ethical and social issues in screening for genetic disease, New Eng. J. Med. 286: 1129, (1972).
Ibid.
Fletcher, J., Roblin, R. and Powledge, T., Ethical, Social and Legal Dimensions of Screening for Human Genetic Disease, Miami: Symposia Specialists, 1974, p. 138.
Id. at p. 143.
Waltz, J. and Scheuneman, T., Informed consent to therapy, Northwestern Univ. Law Rev. 64: 628: 630, (1969).
Ibid.
See, e. g., Roberts v. Young, 369 Mich. 133, 119 N.W. 2d 627 (1963); Starnes v. Taylor, 272 N.C. 386, 158 S.E. 2d 339 (1968).
See, e. g., Yeates v. Harms, 193 Kans. 320, 393 P. 2d 982 (1964)
There is a temptation to give the informed consent concept a narrow application so that physicians and others can spend more time delivering health care services and less time informing patients of potential risks. The point would seem to be, however, that required disclosure of all risks would be prohibitive but that disclosure which will enable the patient to make an intelligent decision is part of the physician’s duty. See Waltz, J. and Scheuneman, T., Informed consent to therapy, Northwestern Univ. Law Rev. 64:628:635:n.23,(1969). For the proposition that a mini-course in medical science is not required, see Cobbs v. Grant, 104 Cal. Rptr. 505, 502 P. 2d 1 (1972).
The leading case is Canterbury v. Spence, 464 F. 2d 772 (D.C. Cir.), cert, denied, 409 U.S. 1064 (1972), which in turn draws heavily on Waltz, J. and Scheuneman, T., Informed consent to therapy, Northwestern Univ. L. Rev. 64: 628, (1969).
Two knowledgeable commentators have said, The indications for amniocentesis, the inherent risks of the procedure, and the reservations which may attend any results provided should be discussed with both parents prior to initiation of this procedure11 (authors’ emphasis). Milunsky, A. and Reilly, P., The “new” genetics: emerging medicolegal issues in the prenatal diagnosis of hereditary disorders, Amer. J. Law Med. 1:71, (1975).
Ibid. It is sometimes suggested that informed consent can be effectively obtained through oral information-disclosure. See, e. g., Note: Informed consent ‐‐ a proposed standard for medical disclosure, New York Univ. Law Rev. 48:548, (1973). For the genetic screener’s protection, however, signed consent forms or questionnaires are preferable. The form or questionnaire should reveal the substance of the information imparted and that the form and level of disclosure was geared to the needs and capacities of the particular screenee. A sample informed consent questionnaire can be found in Fletcher, J., Roblin, R. and Powledge, T., Informed consent in genetic screening programs, in “Ethical, Social and Legal Dimensions of Screening for Human Genetic Disease.” Miami: Symposia Specialists, 1974, pp. 143–144.
Prof. Capron has said, “…in genetic counseling the parents have a legal right to be fully informed decision makers about whether to have a child; and, likewise, the genetic counselor has the duty to convey to those he advises a clear and comprehensible picture of the options open to them, the relative risks and benefits, and the foreseeable consequences of each option, to the best of his ability.” Capron, A., Informed decision making in genetic counseling: a dissent to the “wrongful life” debate, Indiana Law J. 48: 581: 582, (1973).
See Green, H. and Capron, A., Issues of law and public policy in genetic screening, in “Ethical, Social and Legal Dimensions of Screening for Human Genetic Disease.” Miami: Symposia Specialists, 1974, pp. 59–62.
See, e. g., Stafford v. Shultz, 42 Cal. 2d 767, 270 P. 2d 1 (1954).
See Waltz, J. and Thigpen, C., Genetic screening and counseling: the legal and ethical issues, Northwestern Univ. Law Rev. 68: 696: 757, (1973).
Two similar cases with opposite rulings at the trial court level deal with the parents1 right to recover for a physician’s failure to inform them that their child might be born with a disability. However, both cases rejected any right of recovery by the child itself. Gleitman v. Cosgrove, 49 N.J. 22, 227 A. 2d 689 (1967) (no right of action); Stewart v. Long Island College Hospital, 58 Misc. 2d 432, 296 N.Y.S. 2d 41 (S.Ct. 1968), modified, 35 App. Div. 2d 531, 313 N.Y.S. 2d 502 (1970), aff’d., 30 N.Y.S. 2d 695, 283 N.E. 2d 616, 332 N.Y.S. 2d 640 (1972) (right of action upheld).
See, e. g., Hammonds v. Aetna Casulty & Surety Co., 237 F. Supp. 96 (N.D. Ohio 1965); Home v. Patton, 291 Ala. 701, 287 So. 2d 1973); Clark v. Geraci, 29 Misc. 2d 791, 208 N.Y.S. 2d 564 (1960)
Cf. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W. 2d 249 (1965) For a fuller discussion, see Note: Action for breach of medical secrecy outside the courtroom, Univ. of Cincinnati Law Rev. 36: 103, 1967.
Id. at p. 104.
For a discussion of the various branches of the right of privacy, see Waltz, J. and Inbau, F.: Medical Jurisprudence. New York, Macmillan Company, 1971, pp. 270–274.
See, e. g., Hammonds v. Aetna Casualty & Surety Co., 237 F. Supp. 96 (N.D. Ohio 1965 ).
See Clark v. Geraci, 29 Misc. 2d 791, 208 N.Y.S. 2d 564 (1960J:
See Waltz, J. and Thigpen, C., Genetic screening and counseling: the legal and ethical issues, Northwestern Univ. Law Rev. 69: 731, (1973).
See Waltz, J. and Inbau, F., Medical Jurisprudence. New York, Macmillan Company, 1971, pp. 278–280.
See, e. g., Boyd v. Winn, 286 Ky. 173, 150 S.W. 2d 648 (1941).
For a catalog of specific state statutes, see Note: Medical practice and the right to privacy, Minnesota Law Rev. 43: 953, (1959).
See, e. g., Collins v. Howard, 156 F. Supp. 322 (S.D. Ga. 1957); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920).
See, e. g., Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923).
The term “defamation” refers to the torts of libel and slander. For a general discussion of physicians’ liability for defamation, see Waltz, J. and Inbau, F., Medical Jurisprudence. New York, Macmillan Company, 1971, pp. 262–269.
See, e. g., Berry v. Moench, 8 Utah 2d 191, 331 P. 2d 814 (1958).
See Waltz, J. and Inbau, F., Medical Jurisprudence. New York, Macmillan Company, 1971, p. 267.
See, e. g., Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923).
Although truth is a defense, a physician may bear the burden of proving that his statements are actually true. See Bingham v. Gaynor, 203 N.Y. 27, 96 N.E. 84 (1911).
Milunsky, A. and Reilly, P., The “new” genetics: emerging medicolegal issues in the prenatal diagnosis of hereditary disorders, Amer. J. Law Med. 1: 71, (1975).
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Waltz, J.R. (1976). The Liability of Physicians and Associated Personnel for Malpractice in Genetic Screening. In: Milunsky, A., Annas, G.J. (eds) Genetics and the Law. Springer, Boston, MA. https://doi.org/10.1007/978-1-4684-2229-0_14
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