CT Supreme Court rejects “wrongful life” claim, upholds $38 million verdict in UConn Health case

The state Supreme Court upheld a $38 million verdict Tuesday against UConn Health for a tragically flawed artificial insemination treatment in a case that touched upon novel legal and philosophical questions about “wrongful life” and whether it can be compensated.

The unanimous decision broke new legal ground by concluding that old rules establishing negligence and medical malpractice apply to the evolving science and technology driving fertility and insemination treatments.

Jean-Marie Monroe-Lynch, her husband Aaron Lynch and their surviving son Joshua sued for malpractice after fertility specialists affiliated with the University of Connecticut’s Medical Center inseminated her with sperm from an anonymous donor infected with cytomegalovirus, or CMV, a common, sexually transmitted virus that has catastrophic effects on fetal development.

The procedure, a therapeutic donor insemination, succeeded in that the mother became pregnant with twins, a boy and girl. But she and the children were infected with CMV.

One of the twins died 37 weeks into the pregnancy and the other was born with a long list of devastating disabilities that will put him in need of constant, lifelong care. The surviving twin, Joshua, cannot communicate or care for himself, has global developmental delays; suffers from cognitive, hearing and movement deficits, including related diagnoses of epilepsy, autism, and cerebral palsy, and spends hours each day having nutrition pumped into his body through a tube.

In its appeal of the damage award set by Superior Court Judge Carl Taylor, the state argued the family’s suit was not based in the usual definition of malpractice but was a wrongful life suit, a relatively new action based on the theory that medical practitioners can be liable for failing to properly prevent the birth of children, such as Joshua, shown through prenatal examinations to have tragically debilitating conditions.

The state argued in its appeal that the court has not addressed the question of “wrongful life” litigation — “the issue of whether a child’s existence, as opposed to nonexistence, is a cognizable injury” — and urged the court to follow the lead of other states that do not permit it.

Most wrongful life suits have been filed in cases where physicians have permitted births of children with what should have been detectable genetic conditions, such as spina bifida. The rationale behind the suits is that not being born is preferable to being born.

In a decision written by Justice Joan Alexander, the court said its view of the applicability of negligence law eliminated the need for it to address questions about wrongful life.

“We conclude that Joshua’s claims, which arise in the context of innovative assisted reproductive technologies, are properly understood and adjudicated within the context of conventional medical malpractice claims,” Alexander wrote. “Established principles underlying the common law of negligence are sufficiently adaptable to provide a remedy for injuries such as those sustained by Joshua, without disturbing the fundamental rules governing tort liability and compensation.”

Alexander said the court would “leave for another day the issue of whether Connecticut law recognizes wrongful life claims.”

The parents were represented by the Walsh Woodard law firm of West Hartford and the appeal was argued by James Healy of Cowdery, Murphy and Healy of Hartford.

“The decision establishes the importance of permitting compensation for children harmed by negligent fertility treatment just as any other victim of negligent care” the lawyers said.

The case record shows that the physician who performed the insemination procedure on Jean-Marie Monroe-Lynch did not check the CMV status of the donor. Because he was unaware he was using a CMV positive sample, he failed to obtain informed consent from the mother.

Five weeks into pregnancy, Jean-Marie Monroe-Lynch appeared at the UConn Health emergency department with acute symptoms of CMV infection. Twenty-two weeks into the pregnancy, an ultra sound examination revealed severe developmental problems associated with CMV infection.

In spite of the ultrasound findings and in violation of the standards of medical care, the court said the treating physician did not try to rule out a CMV infection by performing additional tests and did not inform the mother of the findings. Compounding the errors, a copy of the abnormal ultrasound was not added to the mother’s medical record, leading “to an additional failure to diagnose her and the twins with CMV.”

Joshua was surgically delivered at the time his sister’s death was determined. An autopsy showed she died from “a severe CMV infection” and Joshua was born with dire health complications resulting from congenital CMV.

The parents argued in their suit that they “were not advised that (the twins) had developed congenital CMV, and were not counseled with respect to the treatment options available to them and the recommended treatment plan, which would have included a recommendation that the pregnancy be terminated in view of the significant risks associated with congenital CMV.’’

There were points in the court’s decision, as it deconstructed the state’s arguments about wrongful life and birth, when the language veered toward the philosophical. The state argued that damages cannot be set in Joshua’s case – damages based on making him whole from UConn negligence – because he would not exist but for UConn’s conduct.

“The state’s negligence was using the very sperm that created Joshua,” the decision said. “The state contends there are no legally compensable damages because Joshua would not exist but for that act of negligence. This means, the state contends, that the only way to roll back the state’s negligence and to return Joshua to the position he occupied prior to the injury would be to compensate him as if he had never existed. We disagree.”