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Breyne v. Potter12/5/2002
Linda Breyne and John Sekula sued Phillip L. Potter, M.D., for medical malpractice and breach of fiduciary duties, and sued Maternal Fetal Diagnostic Center of Atlanta, Inc. as Dr. Potter's principal. The defendants answered and moved for summary judgment, which the trial court granted without explanation. The plaintiffs appealed, and for the reasons that follow, we reverse the grant of summary judgment against Breyne, but affirm the grant against Sekula.
The facts in this case are not in dispute. When she became pregnant at age 40, Breyne was referred to Dr. Phillip Potter and the Maternal Fetal Diagnostic Center of Atlanta due to concerns about possible birth defects due to her age and recent antibiotic use. After Breyne and Sekula, the baby's father, received genetic counseling, Breyne decided to undergo chromosome testing. Dr. Potter withdrew a small sample of placental cells from Breyne and had it tested for genetic abnormalities.
Dr. Potter subsequently received a note from his receptionist regarding the test results, and told Breyne over the phone on a Friday that her fetus had the genetic abnormality Trisomy 21, or Downs Syndrome. In response to Breyne's questioning, Dr. Potter assured Breyne that the test was accurate, that there was no need for additional testing to verify the test results, and that the lab understood the significance and importance of the test.
Breyne and Sekula talked to Dr. Potter in person the following Monday, and during that conversation, Dr. Potter reiterated that the lab test showed that Breyne's baby had Downs Syndrome. He said that, if Breyne were going to terminate the pregnancy, it was better to do so sooner rather than later. When Breyne told him that she had decided to terminate the pregnancy, Dr. Potter called her HMO, told the doctor there of her decision, and scheduled the procedure.
Two days later, Breyne terminated the pregnancy. The day after the termination, Dr. Potter called and "clarified" that the test results did not show Downs Syndrome, but another chromosomal abnormality known as Triple X or 47 XXX. Dr. Potter told Breyne that "the results were the same [as with Downs Syndrome], severely mentally retarded child."
While the results were correctly written as 47 XXX in both the telephone message and a faxed report Dr. Potter received before talking to Breyne and Sekula on Monday, Dr. Potter somehow misread them. The lab report noted, in contrast to Dr. Potter's explanation to Breyne, that the clinical manifestations of children with Triple X "are highly variable and precise predictions about an individual's prognosis are not possible. Mental retardation is not expected but there is a risk for developmental delays in speech, neuromotor skills and learning abilities. Physical phenotype and fertility are usually normal."
The parties disagree on the application of these facts to the law. Dr. Potter contended in his motion for summary judgment that Breyne was seeking damages for wrongful death, and argued that (1) Georgia law provides no cause of action for Breyne's damages, and (2) Breyne's choice, not Dr. Potter's error, was the proximate cause of the pregnancy termination.
1. No cause of action exists for the wrongful death of an unborn child who was not "quick" or viable at the time he died. Citron v. Ghaffari, 246 Ga. App. 826, 828 (1) (542 SE2d 555) ( 2000). "The concept of `quickening' is defined as that point in time when the fetus is able to move in its mother's womb, . . . generally sometime between the tenth week and the fourth month of pregnancy." Id. A review of the complaint in this case, however, reveals that the plaintiffs have not stated a wrongful death claim,
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