The Frontiers of Medical Negligence Law at the Opposite Ends of the Human Life Cycle

Issue Vol. 9 No. 1 January 2007 By Anthony Agudelo

Anthony V. Agudelo is a partner at Sugarman, Rogers, Barshak & Cohen PC. He concentrates his practice in civil litigation with an emphasis on representing plaintiffs in medical malpractice cases and defendants in products liability and personal injury cases.

Although patients injured by health care providers’ errors have pursued lawsuits in Massachusetts since the 19th century, medical negligence law has not been stagnant. Advancements in medical science prompt the assertion of novel theories of liability and damages, which can both set boundaries in medical negligence law and pioneer into new legal frontiers. One interesting recent case involving medical negligence at the beginning of the human life cycle brushed up against the limits of Massachusetts law, while another current case arising out of alleged medical errors at the opposite end of the cycle may explore new frontiers in the law. These two cases also illustrate how current medical negligence law can create daunting obstacles to plaintiffs harmed by errors committed at the forefront of medicine, but can also be sufficiently flexible to permit plaintiffs to maintain innovative claims.

Medical Negligence at the Beginning of the Life Cycle

Prenatal testing is becoming more commonplace as medical technology and knowledge advance and women bear children later in life. Unfortunately, with increased maternal age comes heightened risks for having a child with certain birth defects and genetic abnormalities, some of which can often be detected in the relatively early stages of pregnancy.

On Sept. 15, 2002, a Massachusetts woman, whose name has been withheld for confidentiality reasons, gave birth to a girl with Trisomy 21 (Down syndrome), a chromosomal abnormality that causes a wide spectrum of physical and cognitive impairments. This was not an unusual occurrence, as approximately one out of every 730 babies born in the United States is diagnosed with Down syndrome. A medical error committed prior to the birth, however, was unusual.

When the woman was three months pregnant, she underwent a fetal ultrasound as part of her prenatal screening. Abnormalities detected by the ultrasound suggested a need for both further testing and genetic counseling. But, for approximately four months, the woman’s obstetrician, who had requested the fetal ultrasound, neither ordered further testing nor communicated the report’s recommendations to her. By that time, an abortion was no longer a legal option.

The woman retained attorneys Sidney Gorovitz and Max Borten, M.D. and brought a lawsuit against the obstetrician. In the suit, the woman contended that had the obstetrician timely advised her of the results of the ultrasound or ordered further testing, then the chromosomal abnormality would have been discovered in sufficient time for her to have a choice whether to proceed with the pregnancy or to undergo an abortion.

After researching current Massachusetts law on recoverable damages in analogous cases, Gorovitz and Borten concluded that it would not be enough to prove that their client had lost the choice of whether to birth or abort the child. Instead, they would have to prove that she would have terminated the pregnancy because the law did not permit recovery for the mere loss of the choice. Since Gorovitz and Borten believed their client would have undergone an abortion, they set out to prove that fact rather than to challenge the limits of the law.

When questioned directly at their depositions, both parents testified that if they had known about the chromosomal abnormality in sufficient time to terminate the pregnancy, then they would have chosen to do so. To convince the defendant and his insurance carrier of the veracity of the parents’ testimony, Gorovitz and Borten highlighted the fact that the woman had previously elected to terminate three pregnancies, thus she was not averse to the idea of abortion. Additionally, when she first discovered she was pregnant, the woman had requested that she have a tubal ligation at the time of delivery, which helped to prove that she did not want any more children. Gorovitz and Borten were persuasive, as evidenced by the $800,000 settlement obtained for their client.

Parents bringing claims against health care providers for negligence occurring prior to the birth of their children have not always achieved success. In fact, from 1884 to 1960, Massachusetts courts unwaveringly denied recovery for prenatal injuries, often premising their denials upon the lack of reliable medical evidence that negligence had caused the injury. In judges’ eyes, medical science simply was not sufficiently advanced to permit plaintiffs to bear their burden of proving their new theories of liability and damages.

Then, in 1960, the Supreme Judicial Court first permitted an action seeking recovery for a prenatal tort. Keyes v. Construction Serv., Inc., 340 Mass. 633 (1960). Yet, even after it took that monumental step forward, the SJC waffled on cases involving in utero injuries. For example, in Torigian v. Watertown News Co., Inc., 352 Mass. 446 (1967), the Court allowed a wrongful death claim to reach the jury where an infant died several hours after birth due to prenatal injuries, but in another case, Leccese v. McDonough, 361 Mass. 64 (1972), the Court denied recovery to the estate of an infant who was stillborn.

A decade after the Leccese decision, a well-known class-action lawsuit, Payton v. Abbott Labs, 386 Mass. 540 (1982), also yielded mixed results for plaintiffs raising novel theories. There, the SJC answered certified questions of law concerning the viability of claims brought by women whose mothers had ingested the prescription drug diethylstilbestrol (DES) while the plaintiffs were in utero. Although the SJC did recognize a right of action for injury to a plaintiff in utero resulting from her mother’s ingestion of a drug, it also held that if that plaintiff probably would not have been born except for the mother’s ingestion of the drug, then that plaintiff would be barred from recovery.

The SJC then grappled with a pair of preconception tort cases that presented other issues of first impression. Burke v. Rivo, 406 Mass. 764 (1990) and Viccaro v. Milunsky, 406 Mass. 777 (1990). Burke involved a physician who performed an ineffective sterilization procedure that led to the birth of a “normal” but unwanted child. There, the SJC ruled in favor of the parents and rejected the defendant’s argument that because the birth of a child is for all parents at all times a net benefit, no damages could be recoverable. The Court also rejected the defendant’s suggestion that damages were limited because the parents had the options of aborting the fetus or placing the child up for adoption.

The Viccaro case was another “wrongful birth” case, but the SJC described this term and the term “wrongful life” as “not instructive” and abstained from using them in reporting its analysis. The SJC rejected this terminology, stating that the wrongfulness lay not in the life, the birth, the conception or the pregnancy, but in the negligence of the physician. In the case, claims were brought by both a genetically abnormal child and his parents against the physician who provided preconception genetic counseling to the parents. The Court held that the parents possessed a cause of action because the impaired child would not have been conceived if proper genetic counseling had been provided. But, the Court also held that Massachusetts does not recognize a cause of action by the impaired child. The Court reasoned that if the genetic counselor had not been negligent, then the child would not have been born, and there would be a fundamental problem of logic if the child were allowed to recover damages when otherwise he never would have lived. Thus, like Payton, Viccaro not only chartered new territory in medical negligence law, but it also erected new boundaries in it.

The SJC, however, did leave open the question of whether a child born with a defect could recover the extraordinary expenses expected to be incurred to care for himself if his parents were unable to bear those costs and he would otherwise become a public charge. Rosen v. Katz, 1994 WL 879466 (Mass. Super. Ct. 1994) presented this very issue. There, a child born with multiple impairments and whose parents had surrendered him to the Department of Social Services successfully pushed a pathway through to another new frontier as the Superior Court permitted him to maintain a claim seeking the extraordinary expenses associated with his care although he would not have been born had the defendant not been negligent.

Cases such as Keyes, Torigian, Burke and Viccaro provided Gorovitz and Borten the strong foundation upon which to maintain their client’s claim. But, had those attorneys been unable to establish that their client would have chosen to have an abortion, they would have had to argue for a change in or expansion of the law, which would have been a daunting task. This is what Hector Pineiro, another Massachusetts attorney, is arguably doing in a currently pending case at the opposite end of the life cycle.

Medical Negligence at the End of Human Life Cycle

Pineiro represents the widow and four children of Nelson Gonzalez, a man who died after receiving a liver transplanted from a 29-year-old who had died from a rare brain cancer. In the wrongful death lawsuit styled Gonzalez v. Katz, et al, currently pending in the Worcester Superior Court, the Gonzalez family alleges that the defendants, including the organ procurement organization that harvested the organs and the health care providers who assisted with the transplant, knew or should have known that the donor’s liver was potentially diseased with cancerous cells and that transplantation would pose a significant risk to Gonzalez that he would contract cancer. The family further claims that the defendants are liable under the common law for negligence and failure to obtain informed consent. The defendants deny any wrongful conduct, and Pamela Gilman, the attorney who represents several of them, asserts that many lives are saved each year by transplanting organs from donors who had brain tumors.

Pineiro believes that the issue of whether an organ recipient can bring a suit alleging common law negligence against an organ procurement organization and health care providers assisting in the transplant process is one of “national first impression.” Gilman disagrees, frames the issue somewhat differently, and argues that the SJC already decided the issue in favor of the defendants in a very recent SJC decision discussed below. Before discussing this potentially novel legal issue, a summary of the scant Massachusetts organ donation law will provide helpful context.

In 1968, Congress promulgated the Federal Uniform Anatomical Gift Act (“UAGA”) in order to promote organ donation for transplantation, therapy, research and education. Congress sought to achieve this goal by providing uniformity across the country in organ donor laws and eliminating uncertainty as to the legal liability of those authorizing and receiving anatomical gifts. Legislatures in all 50 states and the District of Columbia have since enacted some form of the UAGA.

In Massachusetts, the UAGA was codified at M.G.L. Ch. 113, §§ 7-13 as part of the Promotion of Anatomical Science Act (“PASA”). PASA sets forth the methods for making an organ donation, the procedure for obtaining consent of persons authorized to make the donation, the categories of persons who may become donees, and the circumstances under which such a donation is to be considered null and void. Most significant to this article, PASA also contains a provision barring civil damages against persons who act in good faith in accordance with the terms of the statute. This has been called the “good faith immunity provision.”

Parties in suits arising out of allegedly improper organ harvests, donations or transplants face a cloud of uncertainty because there is only one Massachusetts appellate decision interpreting the statute, Carey v. New England Organ Bank, 446 Mass. 270 (2006), and a dearth of Massachusetts legislative history explaining the intent behind its enactment.

In Carey, the family of an organ donor sued the New England Organ Bank (“NEOB”), a charitable organ procurement organization, and others alleging that the defendants negligently and with bad faith removed the donor’s organs knowing that they were unsuitable for transplantation. The defendants moved for and were granted summary judgment on the grounds that they were entitled to the statutory good faith immunity. As explained by Superior Court Judge David Lowy in his written decision, without the protection from liability provided by the good faith defense, procurement organizations could likely hesitate to seek needed organ donations that could later prove invaluable, and if courts were to construe the good faith immunity provision narrowly, then they would only inhibit the successful recovery of anatomical gifts. Carey v. New England Organ Bank, 2004 WL 875623 (Mass. Super. Ct. 2004). The SJC affirmed Lowy’s ruling and held that it was the plaintiff’s burden to prove the defendants’ lack of good faith, rather than the inverse. The SJC also noted that the good faith immunity provision was designed for situations where an organ is removed without genuine consent simply because of confusion. Although the NEOB is also a defendant in the Gonzalez case, because Gonzalez does not involve an alleged failure to obtain the proper consent from the donor’s family, it is questionable whether the NEOB is entitled to rely upon the good faith statutory defense in Gonzalez.

According to Pineiro, the NEOB acquired the donor’s liver, kidneys, lungs, heart and other organs and tissues. Those organs and tissues were transplanted into five people, including Gonzalez. Gonzalez did not know prior to the transplant that the donor had died from brain cancer and that there was a chance that the cancer had spread to his liver. In fact, the cancer had infected the donor’s liver, and Gonzalez died a year after receiving the diseased liver. Sadly, three of the four other recipients of the donor’s organs have also since died of cancer.

This tragic event recalls Jesica Santillan whose story garnered significant media attention in 2003. Santillan was a teenager who received a heart-lung transplant at Duke University Hospital, but died shortly thereafter because the donor had an incompatible blood type. Duke and the Santillan family reached a settlement before any lawsuit was filed, and Duke also established a $4 million perpetual fund for Latino pediatric patients to honor Jesica. Because no lawsuit had been pursued, however, no court was presented with the good-faith-immunity issue now presented in the Gonzalez case.

In Gonzalez, the NEOB and two transplant coordinators filed a motion to dismiss, arguing that PASA immunized them from liability specifically because the plaintiff failed to aver any facts supporting a claim that the defendants were not acting in good faith when they procured the organ donor’s liver. Pineiro argued in opposition to the motion that the plaintiff has no obligation to allege or prove that the defendants acted in bad faith, claiming that the immunity provision is inapplicable when determining the rights of donees vis-à-vis an organ procurement organization which distributes organs knowing that they are potentially tainted with cancer. He further contended that the statute explicitly recognizes that testing of donor organs before transplantation is not only imperative, but also the hallmark of good medical practice. As stated earlier, Pineiro’s opposing counsel, Gilman, framed the issue somewhat differently. She described the legal issue as whether organ procurement organizations have a statutory immunity that trumps the common law if they act in good faith when conducting donation activities. And this issue, she argued, was already decided by the SJC in Carey.

Judge Peter Agnes Jr. of the Superior Court agreed with Pineiro and the plaintiffs, finding that PASA did not extend into the realm of donees who receive disease-riddled organs, and therefore, the good faith immunity provision was inapplicable and could not be asserted as a defense. Agnes described PASA and the UAGA as “donor driven laws which provide little insight as to the donee” and reasoned that there was “nothing in the language of [the statute] or its history to suggest that its purpose was to supersede common-law theories of tort liability with respect to the consequences of medical decisions made about whether particular organs which have been donated are suitable for transplantation.” Agnes also opined that “the Legislature did not intend to create an immunity to protect organ professionals when they recklessly or negligently procure or distribute deadly organs.” In so doing, he recognized that the case presents new issues, writing in his opinion that “Massachusetts’ courts have not yet grappled with death from allegedly deadly organ transplantation.”

The defendants, dissatisfied with Agnes’ ruling, petitioned for relief from a single justice of the Appeals Court. Their efforts were unavailing. Justice William I. Cowin denied the petition, stating that a single justice did not have the authority to grant the defendants the relief they sought, namely an order directing that Agnes reverse his decision and terminate the case against the moving defendants. Undeterred, the defendants have now asked Agnes to reconsider his ruling or to report the matter to the full panel of the Appeals Court, and claim that the ruling “casts a shadow of uncertainty over the scope of the good faith immunity provision for those persons involved in the procurement of potentially life-saving organs and tissues not only in Massachusetts, but possibly across the country as well.” They further assert that the issue “is one of vital importance to those involved in the time-sensitive procurement of potentially life-saving organs and tissues.”

If Pineiro and Agnes are correct that the case presents the novel legal issue of whether an organ procurement organization can be held liable for negligently transplanting a diseased organ into an uninformed recipient, and Gilman is correct that the case has vital importance and may have impact across the country, then it is highly likely that the SJC will once again be presented with a case pushing against the frontiers of medical negligence law.

As an interesting aside, the family of Pamela Collins, the woman who died after receiving the donor’s kidney, has also filed a lawsuit in the Worcester Superior Court. Attorneys Andrew C. Meyer Jr. and William J. Thompson represent Collins’ family, which claims that prior to the procedure, the transplant surgeon told Collins that the donor was “healthy” and that the kidney “looked good and healthy.” Meyer has commented that Collins was expecting a life-saving procedure, but instead was handed a death sentence by her doctors. For reasons not made public, Meyer and Thompson chose not to name the NEOB as a defendant in their case, and none of the defendants have filed a motion to dismiss contending that the good faith statutory defense bars the claim.

While we do not know how the Gonzalez case will change Massachusetts medical negligence law, if at all, or how the law will develop in the future, we do know that the law will be significantly impacted by the ways in which the field of medicine evolves. And one point remains true regardless of what the future of medicine holds, which is that human life at both ends of the life cycle necessitates great levels of protection, both medically and legally.