Virginia Lawyers Weekly

Doctors won a double victory at the Supreme Court of Virginia in a case where a couple sued two obstetricians over the birth of twin daughters with Down syndrome.

In Fruiterman v. Granata (VLW 008-6-101), the high court rejected the father’s claim that he was a “patient” of the obstetricians for the purpose of advice about genetic counseling and chromosomal testing.

The court also extinguished the mother’s verdict against the doctors, ruling that she had failed to prove that a first trimester test would have shown her daughters’ abnormality.

Julie and Joseph Granata went to see obstetrician Dr. Jan Paul Fruiterman and his partner when the couple planned to conceive a child. At age 37, Julie was at risk for having a child with a chromosomal abnormality. At a pre-conception counseling session, one of the doctors met with Julie.

According to the doctor, she emphasized the importance of screening tests, including a first trimester test known as chorionic villus sampling (CVS). The tests are designed to evaluate if a fetus has a chromosomal abnormality such as Down syndrome.
Julie testified, however, that the doctor did not mention the early CVS test, but spoke only of amniocentesis, a test that is not performed before the 16th week of pregnancy. According to Julie, neither doctor ever discussed the availability of the early CVS test.

After Julie became pregnant, Joseph accompanied her on a doctor visit where he helped her complete a genetic screening questionnaire. He attended a discussion with Julie and the doctor where the couple discussed genetic screening and amniocentesis. “I was an active participant in the pregnancy. I wanted to support Julie, and I was seeking guidance from her doctors,” Joseph testified. He agreed with his wife that doctor did not discuss the option of CVS testing at that visit.

The Granatas testified that, if Julie had known in the first trimester that her girls would be born with Down syndrome, she would have elected to terminate the pregnancy. Julie declined to have amniocentesis, however, because she did not want to consider an abortion after the first trimester.

After the birth of the twin daughters with Down syndrome, the parents filed separate but identical lawsuits against the obstetricians and their professional corporation. The couple claimed damages for mental and emotional distress, medical bills, and lost family income.

At trial, a Fairfax County jury awarded Julie a $4 million verdict, one of VLW’s “Virginia’s Largest Verdicts of 2006.” The award was reduced to the medical malpractice cap amount of $1.6 million. The same jury also awarded Joseph $500,000, but the trial judge struck the verdict, ruling that Joseph could not be considered a patient of the obstetrician.

The weak link in Julie’s case, according to the opinion written by Justice Cynthia D. Kinser, was the lack of evidence about what the early CVS test would have shown. Her experts never expressed opinions as to whether CVS would have been positive for Down syndrome if Julie had undergone that test.

Accordingly, Julie “did not prove to a reasonable degree of medical probability that, if she had undergone CVS, the result would have shown the chromosomal abnormality indicative of Down syndrome.”

The court found that, merely because one of the experts called CVS a “definitive diagnostic test,” that description did not suggest what the test result would have been. The court also rejected the argument that the outcome could be inferred based on the later Down diagnosis.

The father’s case turned on the interpretation of the Virginia medical malpractice statutes. Rather than make a blanket pronouncement that a man can never be considered a patient of an obstetrician, the court analyzed Joseph’s limited interaction with the obstetricians and the language used in the code to define “patient.”

Joseph pointed to the code definitions indicating that a “patient” could include a person who should have received information from the doctor. The Supreme Court, however, pointed to additional language suggesting that the interaction between “patient” and doctor must occur “during the patient’s medical diagnosis, care, treatment, or confinement.”

Since Joseph himself was not being diagnosed, cared for or treated, he was not a “patient.”

“Although [the obstetrician] discussed and/or recommended amniocentesis and genetic counseling, the evidence demonstrates her ‘diagnosis, care, [or] treatment’ on that day was directed to Julie, not to Joseph,” Kinser wrote.

Furthermore, the court pointed out, only Julie could consent to and undergo the CVS procedure. In addition, the court held that the evidence failed to show any affirmative act whereby the obstetrician undertook to provide health care to Joseph.

The decision overturns the $1.6 million judgment for Julie and affirms the dismissal of Joseph’s case.

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