HARTFORD, Conn. (Legal Newsline) - It was medical malpractice, not “wrongful birth” that provided the grounds for a $35 million judgment against the State of Connecticut over a permanently disabled child born after his mother may have been infected with virus-tainted sperm.
Jean-Marie Monroe-Lynch sued the state after giving birth to a son Joshua who was severely disabled by exposure to cytomegalovirus, a herpes virus present in about half the population that can cause birth defects in utero. A twin fetus was delivered dead at the same time.
Monroe-Lynch argued she was infected by a sperm donor who was CMV positive and doctors never checked the donor’s status or informed her of the risks. The surviving child will never speak or care for himself and must be fed via a nasogastric tube for the rest of his life.
A trial judge awarded Monroe-Lynch, her husband and son $37 million in damages, later reduced to $35 million to account for insurance proceeds. The state appealed but the Connecticut Supreme Court upheld the judgment in a Feb. 6 opinion by Justice Joan K. Alexander.
On appeal, Connecticut argued the state was immune to liability because the lawsuit was really over wrongful birth, not medical malpractice. The state sovereign immunity statute allows plaintiffs to sue over medical malpractice but not most other claims of negligence.
The Supreme Court disagreed. Wrongful birth is a claim that a parent gave birth to a severely disabled child that could have been avoided if doctors informed her early enough to abort the fetus, the court said. In this case, doctors at the University of Connecticut fertility clinic are accused of not only creating the child through artificial insemination, but of causing the injuries to the child.
“This is not a wrongful life action,” the court said. “Joshua does not contend that he would be better off dead or that his life is not worth living. His claim is that, like any other tort victim, he is entitled to compensation for injuries he sustained as a proximate result of the state’s negligence.”
The court also rejected the state’s argument damages couldn’t be awarded because there was no way to return Joshua to his state before the mistake, given he was created with sperm that caused his injuries. Tort law has evolved, the court said.
“Humans couldn’t create babies in medical laboratories in the twelfth century, when the English common law of tort began to coalesce, or in the early 1800s, when American courts first articulated the purpose of tort damages generally (to make a person whole),” the court said. “The idea that an injured party might have been genetically different, even potentially a different person, but for the injury would not have been comprehensible to the architects of tort law.”
Finally, the court rejected arguments the trial judge should have excluded the opinion of the plaintiff’s expert, infectious disease specialist Dr. Alexander McMeeking. He concluded that Monroe-Lynch was exposed to CMV from infected sperm because she tested negative for the virus when she began fertility treatments in September 2013 and went to the emergency room about five weeks into her pregnancy in June 2014 with a rash and other symptoms of acute CMV infection.
The state’s expert, Dr. Mark Schleis, said it was more likely she contracted CMV in January 2014, when she was treated for flu-like symptoms. He said there was no evidence donor sperm can carry infectious CMV virus after being frozen and washed. But the trial judge concluded that while unlikely, it was possible for infectious virus to survive the process.
The plaintiffs were represented by James J. Healy, while Connecticut was represented by Jeffrey Babbin.