07 Apr Virginia Medical Malpractice: VSC Wrongful Birth – a Lawyer’s Insufficiency
On October 31, 2008, the Virginia Supreme Court decided issues of physician-patient relationship and damages proximate causation. The “wrongful birth” medical malpractice case is Fruiterman v. Granata, 276 Va. 629 (2008).
In Fruiterman, the plaintiff mother claimed medical malpractice for her Ob/Gyn failing to inform her about first trimester testing for genetic defects for which she would have elected to terminate her pregnancy. The plaintiff father in Fruiterman made a parallel claim.Id. at 633.
The Virginia Supreme Court dismissed the mother’s medical malpractice claim for her failing to prove proximate causation by expert testimony. Specifically, she “did not prove to a reasonably degree of medical probability that, if she had undergone CVS, the result would have shown the chromosomal abnormality indicative of Down syndrome.” Id. at 638.
Additionally, the Virginia Supreme Court that the father failed to prove the requisite physician-patient relationship requisite for a medical malpractice claim, since he never entrusted, and the Ob/Gyn never accepted, his treatment. Id. at 644. Significantly, however, Fruiterman may leave open the possibility of a medical malpractice claim by a father if and to the extent that a Ob/Gyn advised “as a couple about genetic counseling or … recommend[ed] genetic screening tests that either [the father] alone or both of them would need to undergo. Id.