A Virginia woman lost a “wrongful birth” lawsuit after a judge denied her request to exclude testimony that she would have aborted her pregnancy if her doctor had told her the child would be born with Down Syndrome.

A “triple screen” blood test that screens for genetic disorders in fetuses showed Andrea Wilkie had a one-in-37 chance of delivering a Down Syndrome child. She sued Dr. Zahid Aslam, an Elkton, Md., obstretrician, for $15 million, alleging he committed malpractice by failing to tell her about the test results and recommend that she seek genetic counseling or a more definitive amniocentesis test.

The liability portion of the trial presented two issues –- whether Aslam deviated from the standard of care in his treatment of Wilkie and whether his alleged negligence caused her not to have an abortion.

In a pretrial motion, Wilkie argued that causation was only relevant to the damages portion of the trial. “If the defense were permitted to question Ms. Wilkie about abortion, when it is no longer relevant, it would result in severe prejudice to Ms. Wilkie,” she said.

“Such testimony would have no probative value in determining whether Dr. Aslam violated the standard of care,” she added.

But U.S. Magistrate Judge Beth P. Gesner ruled the testimony admissible, apparently agreeing with Aslam that causation was an element of liability.

“The jury will ultimately have to consider and believe all of Ms. Wilkie['s] testimony in order for Dr. Aslam to be held liable,” the defense said in a brief. “Adding Ms. Wilkie's testimony on this subject (i.e. whether she would have opted for an abortion) is an essential factual element to establishing liability.”

The jury found Aslam did not deviate from the standard of care, making the causation issue moot. But one attorney still wonders to what extent the jury “had a problem with the 'I would have had an abortion' claim from Plaintiff. Statistically speaking, someone on that jury strongly believed that abortions are immoral.”

“Moreover,” Ronald V. Miller says on The Maryland Injury Lawyer Blog,

the very notion that someone is standing up in public saying out loud that she would have aborted her own child might also rub even some pro-choice jurors the wrong way or at least make them feel a little squeamish. Maybe those same jurors can ignore their own beliefs/concerns if the medical malpractice allegation is clear. But this is an incredibly tough case -– albeit with a lot of potential upside –- for a malpractice lawyer to win because the jury has a plausible reason to believe the doctor.

Wilkie was seeking compensation for the current and future costs of caring for her daughter, who is now 3. “Ultimately, the jury determined that she had not met her burden of proof that she was told,” Aslam's attorney told The Daily Record of Baltimore. “The jury determined that the doctor's records were good evidence that he had told her about the results.”

By Matthew Heller
2/13/10