Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling

article published in law journalAlthough genetic disorders have been recognized for centuries, recent advances in the study of human genetics often permit accurate determination of the risk that parents will have genetically defective children.' When this information is available either before conception or during pregnancy, prospective parents may choose to prevent the birth of such defective children through contraception or abortion. Recently, courts have been called on to define the circumstances in which either the parents or the children should receive tort damages when parents are denied opportunities to prevent the birth of defective children because of their physicians' negligent failure to detect or disclose risks of genetic disorder. Only eleven years ago, a court was unwilling to impose liability on physicians who had given inaccurate information about the risk of an environmentally induced birth defect. Yet many of the arguments that swayed that court are no longer persuasive to courts now deciding cases involving the birth of genetically defective children. This may be due in part to the growing public awareness of the economic and emotional burden of genetic disease. Moreover, with dramatic constitutional developments expanding the right to choose not to procreate, judicial reluctance to approve abortion undertaken to avoid the birth of defective children no longer seems justified. Thus, in Howard v. Lecher a physician had allegedly been negligent in failing to detect the parents' risk that their child would be fatally afflicted with Tay-Sachs disease. Although the New York Court of Appeals denied the parents' cause of action for emotional distress, the lower court's recognition of their claim for medical and funeral expenses incurred in the child's behalf was not even appealed. In Park v. Chessin, a later case based on allegations that the defendant physicians had given inaccurate genetic risk information, a New York appellate court refused to dismiss a cause of action for "injuries and conscious pain and suffering" brought on behalf of a child born with polycystic kidney disease, a degenerative genetic disorder that inevitably leads to early death. The child's parents were allowed to assert a claim for their medical and support expenses. The new judicial willingness to recognize some physician liability for failure to give accurate genetic risk information has not produced consistent results. In some cases, courts have permitted only the parents to bring suit, while in others both parents and defective children have been allowed to sue." When courts have reached the question of defining the duty of physicians to detect and to disclose genetic risks, the standards promulgated have often limited inappropriately the scope of physicians' liability. Finally, even cases in which liability has been imposed have recognized differing types and measures of damages for similar injuries.' This Note provides a more coherent method for analyzing such cases. Part I discusses the process of identifying and advising prospective parents who risk having genetically defective children so that they may make better informed procreative choices. Part II argues that imposing tort liability on individual physicians can best vindicate the social interest in reducing the incidence of genetic defects; it also contends that only causes of action asserted by parents of children with such disorders should be sustained. Part III proposes a set of requirements, based largely on existing tort doctrines, for upholding such causes of action and sets forth principles for determining the measure of damages for negligent genetic counseling by physicians