Specialist ordered to pay $44.1m to a patient as damages!

Emobileclinic Health News

A jury returned a large verdict in a medical malpractice lawsuit filed against a Maryland IVF physician who did not order medical records of a Pennsylvania gestational surrogate carrier. The suit was brought by the parents of a child who died 21 days after being delivered at 25 weeks due to their gestational carrier’s preeclampsia.

She had failed to disclose she had had preeclampsia in her most recent prior pregnancy.  The parents, Andrew and Marni Hotchkiss, from Bethesda Maryland, sued, claiming the doctor was screening prospective gestational carriers on their behalf, that they would have rejected this carrier based on her actual medical history, and that the failure to order and review the gestational carrier’s medical records was malpractice. The gestational carrier, Christina Jensen, had reported having had four previous healthy pregnancies, but failed to disclose she had delivered six children, the most recent of which was delivered prematurely as a resulted of preeclampsia.  The jury’s $44.1 million damage award will be reduced to under $1 million under Maryland law which caps non-economic damages.

The Hotchkiss’s lawsuit claimed that Dr. Sui T. Ng-Wagner’s failure to order and review the gestational surrogate’s prior medical records before accepting her as a surrogate violated the standard of care owed to them. The doctor’s reported defense was that the standard of care was to rely on the woman’s representations and not to further investigate. Experts testified for each side.  Before being reduced, the jury awarded the couple $42 million in damages for the child’s “wrongful death,” and $2.1 million for the child’s “conscious pain and suffering.” 

While it is unclear from the malpractice case report whether there were other professionals involved in screening or matching the parties, news reports suggest there were not.  In 2014, after a long investigation, the gestational carrier, Christina Jensen, was also reportedly charged criminally in her home state of Pennsylvania for forgery, theft by deception, receiving stolen property and unlawful use of a computer. According to both court records and published reports, she lied to the intended parents to obtain approximately $4,000 reimbursement, falsely claiming, among other things, that she had retained and previously paid an attorney to draft the surrogacy agreement.

The case should be another cautionary lesson for both professionals and participants in third-party ART arrangements.  It is unlikely that in the absence of a third-party arrangement, any IVF physician would be expected to, or have a duty of care to, question, or require the medical records of, a patient after a self-reported medical history.  To the extent IVF physicians, or other professionals, are expected, or offer, to screen surrogates (or donors) for intended parents, a clearly established standard and duty of care to which they will be held would be protective for all involved.  

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