HARTFORD, Conn. (AP) - A wheelchair-bound mother with multiple sclerosis is entitled to a new trial against her gynecologist for "wrongful conception," the state Supreme Court ruled Friday. The ruling, one of the first of its kind in the state and perhaps the nation, will allow Patricia Burns of Old Saybrook to reinstate her $1.6 million lawsuit against her doctor.
The issue was whether Burns could sue the doctor who had wrongfully told her she could not get pregnant and failed to detect her pregnancy once she was.
Burns had sued her obstetrician/gynecologist, Dr. Thomas M. Hanson, seeking to cover the cost of hiring in-home child care and other workers to assist her in raising her daughter Molly, who was born without medical complications on Oct. 27, 1993.
When the case went to trial in 1997, the jury sided with the doctor after the judge in the case told the members that they could not award any money pertaining to the costs of raising a healthy child.
"The trial court improperly ruled that Connecticut does not recognize the right to recover damages arising form the birth and rearing of a healthy child," the high court said in the opinion released Friday. Burns was diagnosed as having chronic progressive multiple sclerosis in 1982. At about the same time, her only other child, Megan, was born to her and her husband, Bill.
Ten years later, she stopped menstruating after receiving radiation treatments. She claims that when she told Hanson, he said he believed the radiation had sterilized her.
But Hanson testified he told her that she was estrogen-deficient and prescribed supplements.
Burns then stopped using birth control, despite an agreement with her treatment program that she would not have unprotected sex or risk becoming pregnant for four years.
Hanson later failed to detect that Burns was about 15 weeks pregnant while performing an internal pelvic examination. Eight weeks later, Burns had an ultrasound to determine if she had a cancerous tumor on her uterus. The fetus, then about 21 weeks developed, was clearly visible.
Burns had said she would have had an abortion if the pregnancy had been detected at 14 weeks - a question she was not allowed to answer when the case first went to trial in 1997.
Hanson's lawyer, Mark Kravitz, had argued that Burns could have legally aborted the fetus at 21 or 22 weeks.
Kravitz said Friday he was disappointed with the decision, but confident a new jury would reach the same conclusion the first panel did.
"The facts at the first trial showed - and the jury found - that Dr. Hanson did absolutely nothing wrong," he said.
Attorneys for the Burns could not be reached for comment, and the couple's telephone number in Old Saybrook is unlisted.
The ruling, which was rendered 6-1 with Justice Ellen Peters dissenting, sets a precedent for Connecticut on whether a parent can sue for damages when a doctor's failure to detect pregnancy rules out the option of abortion. And never before has a court in the country allowed a parent to recover the costs of raising a healthy child resulting from a delayed diagnosis of pregnancy.
The handful of states that permit recovery of damages for "wrongful
conception" have done so in cases involving children born with mental or
physical disabilities, and usually in cases involving medical negligence
linked to a procedure, such as a botched abortion or sterilization.