2004-708, SHERRY HALL & a. v. DARTMOUTH COLLEGE & a.

The plaintiffs, Sherry and Brad Hall, sued the defendants,

the brief, and Mr. Snow orally), for the defendants. Orr & Reno, P.A., of Concord (Ronald L. Snow and Roy S. McCandless on

Steven M. Latici on the brief, and Mr. Latici orally), for the plaintiffs. McKean, Mattson and Latici, P.A., of Gilford (Edgar D. McKean, III and Errors may be reported by E-mail at the following address:

DARTMOUTH HITCHCOCK MEDICAL CENTER & a.

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2004-708 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as karyotype report, the plaintiffs were no longer “talking about termination.” p. 2 understood to be of no genetic significance. As a result of the normal

crease,” a single crease across the palm of the hand, which the plaintiffs results of the amniocentesis before making a final decision.

boy.” Lacroix explained that clenched hands were often indicative of a “simian wanted to terminate her pregnancy, but Lacroix advised her to wait for the deliver the results and said, “Congratulations, you have a normal, healthy baby Trisomy 18 was ruled out. On March 20, 2001, Lacroix called the plaintiffs to

any results would be obtained. She told Lacroix on March 15, 2001, that she laboratory at DHMC. Hall was aware that it would be at least two weeks before then issued a report indicating “karyotype characteristics of a normal male.” withdrew amniotic fluid from Hall for analysis by Mohandas’ cytogenetics

save any remaining amniotic fluid. She did not share this information with the

cytotechnician examined the chromosomes for structural abnormality, and pregnancy if the testing revealed any chromosome abnormalities. Baker

then, due to her elevated level of concern, issued an order to the laboratory to

and a short arm (the “p” arm). Mohandas, another Ph.D. cytogeneticist and a condition of the fetus. Hall told Lacroix that she would terminate her order. Each chromosome consists of two segments: a long arm (the “q” arm) of the twenty-three pairs of chromosomes, segregated and aligned in numerical

exhibits a convex, rocker-like shape. Lacroix reviewed the ultrasound and a possible “rocker bottom” foot, a congenital deformity in which the foot ultrasound, which again revealed persistently clenched hands and, in addition, The plaintiffs returned to DHMC on March 27, 2001, for a follow-up recommended an amniocentesis to provide further information about the clenched hands -- a marker for Trisomy 18. As a result, Baker and Lacroix karyotype of the fetus’s chromosomes. A “karyotype” is a digital image of each that day revealed a normal fetal morphology, with the exception of continually

chromosomes in a person’s cell structure. chromosomal disorder in which there is an extra copy of one or more midwife, referred her to DHMC for genetic counseling. A “trisomy” is a

The cytogenetics laboratory processed the amniotic fluid and created a between sixteen and seventeen weeks of gestation. An ultrasound conducted

Wendy Wilson, Hall’s primary prenatal care provider and a certified nurse

physician, board-certified in maternal-fetal medicine. At that point, Hall was certified genetic counselor at DHMC, and Emily Baker, M.D., a DHMC On March 7, 2001, the plaintiffs met with Valerie Hani Lacroix, a

screening disclosed that the fetus carried an elevated risk for Trisomy 18, learned she was pregnant in December 2000. In March 2001, after initial The jury could reasonably have found the following facts. Sherry Hall

I. Background p. 3 2001, DHMC reported the results from the SLO test as negative.

hands but did not detect the other problems reported at DHMC. On April 30, maternal-fetal medicine, interpreted the ultrasound as showing clenched in Boston. Thomas Shipp, M.D., an MGH physician, board-certified in

retarded.”

2001, Hall had another ultrasound at Massachusetts General Hospital (MGH) elected to carry the fetus to term. micrognathia but did not detect the other problems reported at DHMC. Hall Women’s Hospital showed persistently clenched hands and significant

way to being just severely affected, dying at birth or being severely mentally

significant probability of mental retardation or neonatal demise. On April 26,

Boston and a board-certified geneticist. Ultrasound studies at Brigham &

Boston, however, up to twenty-four weeks of gestation. services were available on demand and without proof of medical necessity in perhaps would require some physical therapy or maybe some surgery, all the broad range of potential outcomes, ranging from a “very minor problem that underlying brain abnormality. During that discussion, Lauria described a account for the syndromic features seen on the ultrasound and indicate a amniotic fluid for Smith-Lemli Opitz (SLO) disease, which, if positive, would Lauria recommended, and Hall agreed, that DHMC would test the remaining director of the Center for Fetal Medicine of Brigham & Women’s Hospital in

perform abortions only up to twenty-two weeks of gestation. Termination

deformity,” a convexity in the frontal portion of the head which can suggest an

decided to transfer her medical care to providers in Boston. Nevertheless, On May 2, 2001, Hall met with Louise Wilkins-Haug, M.D., the medical

of gestation, and was still in her second trimester of pregnancy. DHMC would the time of the meeting, Hall was between twenty-three and twenty-four weeks Lauria, M.D., a DHMC physician, board-certified in maternal-fetal medicine. At pouch of the umbilical vein, possible heart problems and “lemon head

Without discussing termination of the pregnancy, Hall immediately

Following the ultrasound on April 24, 2001, the plaintiffs met with Michelle is an unusually small lower jaw, a small umbilical vein varix, which is an outadditional problems on the ultrasound, including lower micrognathia -- which continually clenched hands and possible rocker bottom foot, the fetus exhibited plaintiffs also did not contact DHMC to obtain the results. At that meeting, Lauria reported to the plaintiffs that, in addition to the

The plaintiffs next heard from DHMC to schedule another ultrasound.

plaintiffs regarding the results of the March 27, 2001 ultrasound. The plaintiffs. No member of the DHMC genetic counseling team contacted the called for parental blood samples. p. 4 somewhat longer than usual. Given the length of the variation, Sandstrom

Trisomy 9q. This diagnosis was more than extremely rare; it was the producing an “unbalanced” translocation, and leading to a diagnosis of Partial

chromosome was a normal variant, even though its “p” arm appeared to be

his #9 and #15 chromosomes from his mother (with no missing material),

microscopic analysis of the karyotype, and reported that Brandon’s #15 information concerning chromosomal anomalies. Sandstrom then conducted a DHMC genetic counseling team was medically negligent in failing to provide conducted FISH analysis on uncultured cells, but that analysis produced no

inform them, in a timely fashion, of an increased father (with the extra material from #9 attached to #15), and the other half of 4 that the child had inherited one-half of his #9 and #15 chromosomes from his cells. Upon further analysis of Brandon’s karyotype, Sandstrom concluded

and perform additional genetic testing. The plaintiffs also alleged that the and they were “looking carefully for something abnormal.” Sandstrom initially

whether to have the child.

born with severe defects against a medical care provider who negligently fails to

mental impairment, as there was no extra or missing genetic material in his

the Partial Trisomy 9q chromosomal abnormality, and in failing to recommend laboratory had a heightened degree of suspicion of chromosomal anomalies, Brandon’s genetic karyotype as normal, when, in fact, the karyotype showed cytogeneticist at Brigham & Women’s Hospital, acknowledged that the The plaintiffs alleged that Mohandas was medically negligent in reporting child was born with multiple congenital defects, Mary Sandstrom, Ph.D., a

will give birth to such a child, thereby precluding an informed decision as to

DHMC. A wrongful birth claim is a claim brought by the parents of a child Mohandas, Dartmouth College in its capacity as Mohandas’ employer, and In late 2003, the plaintiffs brought a wrongful birth claim against this translocation was “balanced,” Brad Hall did not suffer from physical or chromosome had translocated to the “p” arm of his #15 chromosome. Because abnormality. his #9 and #15 chromosomes – that is, a small portion of the “q” arm of his #9 reported occurrence of this particular configuration of chromosomal

sample, Sandstrom concluded that he had a “balanced translocation” between Following chromosome analysis of cells cultured from Brad Hall’s blood

blood sample and “FISH” analysis, a molecular test using fluorescent probes analysis. The requisition form requested chromosomal analysis of the cord withdrawn from the umbilical cord and sent to the cytogenetics laboratory for

Hospital with multiple, severe congenital anomalies. A sample of blood was On July 2 p. 5 5, 2001, Brandon Hall was born at Brigham & Women’s 5

to mean that the verdict was one no reasonable juror could return.”

evidence or if it was the result of mistake, partiality or corruption.

in favor of the moving party that no contrary verdict could stand. viewed in the light most favorable to the nonmoving party, is so overwhelmingly reasonable inference that may be drawn from the evidence, which must be

diagnosis of the child’s rare chromosomal disorder. 14 p. 5 5 N.H. at 559.

(1996). “Conclusively against the weight of the evidence should be interpreted Banks, 14 p. 5 5 N.H. 558, 559 (2000); Broderick v. Watts, 136 N.H. 153, 162

may set aside a jury verdict if it was conclusively against the weight of the

140 N.H. 798, 800 (1996). Such motions should be granted only when the sole they are governed by identical standards. Bronson v. The Hitchcock Clinic, appeal followed. testimony to link DHMC’s negligence to the failure to provide a definitive verdict and judgment notwithstanding the verdict are essentially the same, and for judgment notwithstanding the verdict and to set aside the verdict. This Though they are made at different points in a trial, motions for directed

motions. disclosure requirements set forth in set forth in Smith to survive a motion for directed verdict or post-verdict sufficient evidence that DHMC failed to meet the disclosure requirements The first issue on appeal is whether the plaintiffs introduced

A. Disclosure requirements

the pregnancy; and (2) the plaintiffs failed to produce sufficient expert amount of $2.3 million. The trial court denied DHMC’s post-verdict motions with serious birth defects, after which the plaintiffs decided not to terminate timely fashion of an increased possibility that Hall would give birth to a child

for directed verdict and post-verdict motions because: (1) DHMC met the On appeal, DHMC argues that the trial court erred in denying its motion

whether to terminate Hall’s pregnancy. II. Issues on appeal such that the plaintiffs were precluded from making an informed decision as to

found against DHMC, however, and awarded the plaintiffs damages in the returned a verdict in favor of Mohandas and Dartmouth College. The jury close of the plaintiffs’ case and, again, at the close of evidence. The jury The trial court denied the defendants’ motion for directed verdict at the

testing performed, and in failing timely to provide options for further testing, timely, complete and accurate information about the results of the genetic p. 6 6

born with severe birth defects. bearing a child with birth defects, she would have obtained an abortion.” increased risk and the possibility that the Plaintiffs’ child would be specialty would provide under the circumstances about the

precluding an informed decision as to whether to have the child. increased possibility that the mother would give birth to such a child, thereby a child with congenital defects.” “negligent invasion of the parental right to decide whether to avoid the birth of

show that, “but for the defendants’ negligent failure to inform her of the risks of expert testimony and by a preponderance of the evidence. with the type of information that a reasonable provider of the same every possible birth ‘defect,’ no matter how insignificant.” A Defendant is not liable if such Defendant provided the Plaintiffs

jury concerning the sufficiency of DHMC’s disclosure, stating: The trial court followed Smith nearly verbatim in its instructions to the

care provider negligently failed to inform them, in a timely fashion, of an Id. at 242.

240-41. Finally, we stated that the injury in a wrongful birth claim was the

further recognized that proof of causation was furnished if the plaintiff could instructing the jury that the plaintiffs had to prove each element through

identify and disclose every chance, no matter how remote, of the occurrence of N.H. at 23 p. 6 6, 242. We noted that this standard did “not require a physician to

with severe defects could maintain an action for wrongful birth where a medical In Smith, we recognized for the first time that parents of a child born

RSA 507-E:2, I (1997). The trial court followed RSA 507-E:2 by

suffered injuries which would not otherwise have occurred. (c) That as a proximate result thereof, the injured person

with such standard; and (b) That the medical care provider failed to act in accordance

at the time the medical care in question was rendered; and medical care provider’s profession or specialty thereof, if any, (a) The standard of reasonable professional practice in the

testimony of a competent witness or witnesses: plaintiff must prove by affirmative evidence, which must include expert See Smith, 128 N.H. at 233, 242. In a medical malpractice action, the A wrongful birth claim is a form of a medical malpractice action. made such a disclosure.

p. 7 Brad Hall even agreed that there was “absolutely no question” that Lauria of the increased risk that their child would suffer from serious birth defects. abnormality. Both plaintiffs acknowledged at trial that Lauria informed them

plaintiffs that there was an approximately ninety-five percent chance of some

pregnancy based upon “mere possibilities” that their child would suffer from

their burden. conclude that plaintiffs did not present sufficient expert testimony to satisfy birth or being severely mentally retarded.” Lauria testified that she told the

negligence claim.” They contend that

diagnosis to the plaintiffs since they were not willing to terminate the

possibility that Hall would give birth to a child with serious birth defects. We or maybe some surgery, all the way to being just severely affected, dying at from a “very minor problem that perhaps would require some physical therapy that discussion, Lauria described a broad range of potential outcomes, ranging to the Halls the potential for serious birth defects is not dispositive of the

they argue that DHMC was obligated to discover and disclose a specific an “informed decision” concerning the termination of a pregnancy. Specifically, disclose, in essence, whatever information a parent subjectively needs to make juror to conclude that DHMC failed to inform the plaintiffs of an increased Smith requires a medical care provider to

deformity,” and potential heart problems. It is also undisputed that, during The plaintiffs counter, however, that the “mere fact that DHMC reported information to meet the requirements under

liable. her by the Defendants . . . then the Defendants cannot be found continued the pregnancy regardless of the information provided to met their burden of producing expert testimony that could lead a reasonable

clenched hands, small vein varix, a possible “rocker bottom” foot, “lemon head and by a preponderance of the evidence, that DHMC disclosed insufficient fetus had exhibited problems on the ultrasound, including micrognathia, It is undisputed that, at that meeting, Lauria reported to the plaintiffs that the The plaintiffs met with Lauria following an ultrasound on April 24, 2001.

child would be born with severe birth defects, or if she would have in the light most favorable to the plaintiffs, we must determine whether they

We first review whether the plaintiffs proved, through expert testimony

1. Sufficiency of DHMC’s disclosure

have timely known, that there was an increased possibility that her [I]f Sherry Hall did timely know, or reasonably could be expected to

causation: The trial court also followed Smith in its instructions on the element of we decline to read that requirement into the standard set forth in DHMC’s disclosure was sufficient that no contrary conclusion could stand. p. 8 drawn from the evidence is so overwhelmingly in favor of the conclusion that serious birth defects. As such, the sole reasonable inference that may be 8

information provided by Lauria on April 24, 2001, was sufficient under

care to providers in Boston. decline to extend

termination.” The plaintiffs cite no authority to support this contention, and

plaintiffs of an increased possibility that Hall would give birth to a child with

The trial court reasoned that, even assuming that the disclosure was sufficient,

In its order, the trial court did not reach the issue of whether the

the option of termination. Instead, they immediately transferred their medical neonatal demise were related exclusively to a diagnosis of SLO disease. We 2. Timeliness of DHMC’s disclosure

them: “This is what’s wrong with your baby and you need to consider terminating the pregnancy. Brad Hall testified that DHMC should have told because Lauria did not initiate a discussion with them concerning the option of that could lead a reasonable juror to conclude that DHMC failed to inform the could give birth to a child with severe defects. plaintiffs, we conclude that the plaintiffs failed to produce expert testimony advised the plaintiffs on April 24, 2001, of an increased possibility that Hall Accordingly, viewing all of the evidence in the light most favorable to the

also note that the plaintiffs did not initiate a discussion with Lauria concerning testimony that he understood that the possibilities of mental retardation and

In addition, the plaintiffs argue that the disclosure was insufficient

made such a disclosure. At least one defense expert also testified that Lauria and thus Brad Hall’s testimony does not alter our conclusion.

Smith further than the standard set forth above, however,

the plaintiffs contend that the jury reasonably could have accepted Brad Hall’s defects was offset by Lauria’s recommendation for the SLO test. Specifically, insufficient because the information regarding the increased possibility of birth The plaintiffs also argue that the April 24, 2001 disclosure was

the plaintiffs’ only expert on genetic counseling at trial, agreed that Lauria child would suffer from serious birth defects. Rather, Maimon Cohen, Ph.D., DHMC failed to disclose to the plaintiffs the increased possibility that their The plaintiffs did not introduce any expert testimony to establish that

236. that their child would suffer from serious birth defects. See Smith, 128 N.H. at Smith required DHMC to disclose to the plaintiffs only the increased possibility serious birth defects. We disagree with the plaintiffs’ construction of Smith. have performed a termination at that time.”

failure to diagnose certain fetal defects from sonograms at twenty weeks of

has no support in the record. possibility of birth defects DHMC could have disclosed the same information concerning the increased the plaintiffs needed to demonstrate at trial, by means of expert testimony, that with no specific genetic diagnosis, he did not know of any place which would

disease” if she were seeking an abortion only that Hall would have required a “real diagnosis of a specific genetic decision as to whether to have the child.” birth defects is “timely” if it allows for the opportunity to make an “informed (N.Y. App. Div. 2001) (holding that physicians could not be liable for their

to whether pregnancy termination services were available to the Halls as of twenty-two weeks. The trial court found that “there was conflicting evidence as April 24, 2001, related exclusively to her the close proximity of DHMC’s disclosure to the end of Hall’s second trimester, to the effect that, given the clinical picture as it existed as of April 24, 2001, concerning Hall’s ability to obtain an abortion, given the clinical situation as of Under Smith, it was the plaintiffs’ burden to prove untimeliness. Given plaintiffs’ expert on genetic counseling. It stated that: “Dr. Cohen . . . testified this issue, the trial court relied explicitly upon the testimony of Dr. Cohen, the examine the requirement of timeliness in further detail. wrongful birth action since Smith, and, thus, have not had occasion to

N.H. at 235. We acknowledged that a disclosure of an increased possibility of wrongful birth as a cause of action under New Hampshire law. Smith, 128 In Smith, we were called upon only to decide whether to recognize

suggest otherwise. All other conflicting, and inconclusive, expert testimony It would have been unreasonable for a juror to construe Cohen’s testimony to failed to make its disclosure to the plaintiffs in a “timely” fashion. In reviewing beyond the permissible time limitation.

dispute that as of April 24, 2001, Hall was still in her second trimester of abortion in Boston only up to twenty-two weeks of gestation. There was no specifically upon an erroneous factual premise that a woman could obtain an

gestation. It also acknowledged an apparent conflict in testimony concerning the plaintiffs and Lauria occurred when Hall was at twenty-three weeks of DHMC only up to twenty-two weeks of gestation, and that the meeting between RSA 507-E:2, I, that could lead a reasonable juror to conclude that DHMC At trial, the plaintiffs had the burden of producing expert testimony, see

The trial court stated that it was undisputed that abortions were available at the jury reasonably could have determined that the disclosure was not timely. plaintiff has the burden to present such expert testimony. RSA 507-E:2, I;

p. 10 would have met such requirements. In accordance with RSA 507-E:2, the

one.

could not have terminated her pregnancy within the period of time remaining and whether the plaintiff’s clinical situation, at the time of the disclosure, the requirements for obtaining a third trimester abortion in other jurisdictions; timeframe; the availability of third trimester abortions in other jurisdictions;

obtain an abortion during her third trimester, had she been able to arrange issue, as well as her willingness and ability to travel to another jurisdiction to concerning the increased possibility of birth defects within the time period at

of birth defects earlier and in light of the plaintiffs’ failure to establish that Hall

provider reasonably would have performed the procedure within such a

could have disclosed the same information concerning the increased possibility

expiration of the second trimester, taking into account whether a medical

severe birth defects. In this respect, a fact finder should also consider the terminate a pregnancy or give birth to a child with the increased possibility of medical malpractice action because it involves the uniquely personal choice to

establish that Hall could In light of the plaintiffs’ failure to offer any expert evidence that DHMC defects earlier. In addition, the plaintiffs did not offer any expert testimony to defect). disclosed the same information concerning the increased possibility of birth informed them of a significant risk that their child would be born with a birth defects; the practicability of scheduling an abortion to occur prior to the were unavailable at twenty-three weeks of gestation, when the physician have earlier disclosed information concerning the increased possibility of birth second trimester; expert testimony about whether the medical providers could

We also acknowledge that a wrongful birth claim is unlike any other

Thus, the jury could not reasonably have found that DHMC could have the parents failed to present any expert testimony that termination services cert. denied, 719 So. 2d 1288 (La. 1998) (dismissing a wrongful life claim where testimony concerning the proximity of the disclosure to the end of the plaintiff’s Davis v. Bd. of Sup’rs of L.A. State Univ., 709 So. 2d 1030, 1035 (La. Ct. App.),

standard of care by failing to conduct another ultrasound at an earlier time. the same clinical diagnosis prior to April 24, 2001, or that DHMC breached its expert testimony to establish that DHMC could have provided to the plaintiffs wrongful birth action, a fact finder should consider, among other things, expert We note that in determining whether a disclosure was “timely” in a

period of time remaining in her second trimester.

record reveals no such evidence. Specifically, the plaintiffs did not present any gestation, where those conditions could not be detected until after birth). The p. 11 11

to terminate the pregnancy. would have had the information they claim they needed to determine whether

chromosomal disorder would have been diagnosed, such that the plaintiffs

our conclusion that possibility that Hall would give birth to a child with severe defects. In light of nevertheless, established that DHMC informed the plaintiffs of an increased

DUGGAN and GALWAY, JJ., concurred. post-verdict motions.

to diagnose the rare genetic disorder. genetic counseling team’s negligence, more probably than not, the child’s rare sufficient expert testimony to link DHMC’s professional negligence to its failure establish through non-speculative expert testimony that, but for the DHMC possibility of birth defects, we need not address whether the plaintiffs provided directed verdict and post-verdict motions because the plaintiffs did not Smith required DHMC to disclose only the increased

counseling team failed to meet its standard of care, the expert testimony, Although DHMC concedes for purposes of this appeal that the genetic

result, the trial court erred in denying DHMC’s motion for directed verdict and was timely that the trial court’s finding to the contrary cannot stand. As a overwhelmingly in favor of the conclusion that the April 24, 2001 disclosure

Finally, DHMC argues that the trial court erred in denying its motion for

B. Sufficiency of expert testimony

the evidence, viewed in the light most favorable to the plaintiffs, is so in her second trimester, the sole reasonable inference that may be drawn from