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Molloy v. Meier

May 6, 2003


Hennepin County District Court File No. MP0114975

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.


1. A physician-patient relationship may arise between a biological parent of a minor child and the child's treating physician where the physician has a duty to inform the parent of the existence of a genetically inheritable condition.

2. A claim for wrongful conception accrues at the point of conception.

3. Minn. Stat. § 145.424 (2002) does not bar a claim for wrongful conception that does not allege that, but for the negligence, the plaintiff-patient would have obtained an abortion.

The opinion of the court was delivered by: Anderson, Judge


Concurring Specially, Willis, Judge


Appellants challenge the district court's denial of their summary-judgment motions and the district court's decisions regarding three certified questions. We affirm the district court's conclusions on all three issues. First, a physician-patient relationship existed here between appellants and respondent Kimberly Molloy because the physicians had a duty to inform Molloy of the existence of a genetic condition. Second, Kimberly Molloy's cause of action accrued at the point of conception of M.M., and thus, it is not time-barred under Minnesota law. Finally, Minnesota law does not bar Kimberly Molloy's cause of action because it is not a suit alleging that had appellants' negligence not occurred, an abortion would have been sought.


This is a medical-malpractice action involving a child born to respondents Kimberly and Glenn Molloy. Their child, M.M., was born in 1998 with fragile X syndrome, a hereditary condition that causes a range of mental impairments, from mild learning disabilities to severe mental retardation.*fn1 Soon after discovering that M.M. had fragile X syndrome, respondents learned that Kimberly Molloy's daughter from a prior marriage, S.F., also had fragile X and that Kimberly Molloy is a carrier of fragile X.

S.F. was born March 9, 1988, to Kimberly Molloy and her former husband Robert Flomer. Molloy and Flomer also had two other daughters. Molloy and Flomer divorced when S.F. was approximately one-and-a-half years old. Flomer was awarded custody of all three children. Kimberly subsequently married respondent Glenn Molloy and had two children, K.M. and M.M., who were born in 1993 and 1998, respectively.

On May 18, 1992, Kimberly Molloy consulted with Dr. Diane Meier to determine the source of S.F.'s developmental abnormalities. Molloy told Dr. Meier that Molloy had a brother with mental retardation, and she expressed a desire to determine whether S.F.'s problems might be genetic. In the notes for that exam, Dr. Meier wrote "? Chromosomes plus Fragile X" and ordered chromosomal testing of S.F. Dr. Meier advised Molloy that if S.F.'s tests were abnormal, Molloy would need to return for testing. Molloy assumed that if testing were required, Dr. Meier would order it. Dr. Meier also referred S.F. to Dr. Reno Backus at the Minneapolis Clinic of Neurology.

On June 23, 1992, Molloy, along with Robert Flomer and his new spouse, Randine Flomer, brought S.F. to Dr. Backus and told him about Molloy's brother. Dr. Backus diagnosed S.F. as developmentally delayed with autistic tendencies of unknown etiology. Molloy told Dr. Backus that she had remarried and asked him about the risk that she might give birth to another child with problems like those suffered by S.F. Dr. Backus told Molloy that the chances she would have another child like S.F. were extremely remote, especially with a father other than Robert Flomer. Dr. Backus told Molloy that S.F.'s problems were not genetic but were "just one of those things that happen."*fn2 S.F. had only this one appointment with Dr. Backus and neither the Flomers nor Molloy saw Dr. Backus again. Dr. Backus testified that he was not involved with S.F.'s care but that his role was to evaluate her from a neurological point of view and that he was merely acting as an adviser to Dr. Meier, the referring physician.

Approximately one month later, Randine Flomer brought S.F. to North Memorial Medical Center for the chromosomal testing that Dr. Meier ordered. Although Dr. Meier admitted that it was her intention to order fragile X testing, for unknown reasons, this test was not performed. The tests that were done did not reveal any chromosomal abnormalities, and Dr. Meier related those test results to the Flomers over the phone. The results were also relayed to Molloy, who believed that the normal test results included fragile X testing.

On December 14, 1992, Dr. Meier saw the Flomers for a consultation with S.F. In her notes about this visit, Dr. Meier wrote, "check fragile X (if done 6/92)." Dr. Meier did not determine at this time whether S.F. had been tested for fragile X. S.F. treated at Oakdale Pediatrics with Dr. Meier until December 19, 1995, when her father switched her to a different primary-care physician, Dr. Marilyn Campbell, at Columbia Park Medical Clinic.

Dr. Campbell referred S.F. to Dr. Kathryn Green, a pediatric neurologist at the Minneapolis Clinic of Neurology. Dr. Green met with the Flomers, examined S.F., and reviewed S.F.'s diagnostic history, including the chromosomal testing ordered by Dr. Meier. Dr. Green also reviewed S.F.'s family history and noted a maternal half-uncle with mental retardation. Dr. Green never met with or spoke to Kimberly Molloy. Dr. Green did not order or recommend fragile X testing. Dr. Green testified that she was not asked by Dr. Campbell to make a diagnosis of S.F., but rather to give an opinion of how to manage S.F.'s hyperactivity, and therefore prescribed Clonidine to replace the Ritalin that S.F. had been taking. The Flomers never returned to visit Dr. Green.

Kimberly Molloy became pregnant in September 1997, and, on June 30, 1998, she gave birth to M.M. After M.M. began showing signs of developmental delay, but before M.M. or S.F. were diagnosed with fragile X, Molloy underwent surgical sterilization because of concerns that she was a carrier of genetic defects. In June 2000, M.M. was diagnosed as suffering from fragile X syndrome; subsequent testing established that S.F. also has fragile X syndrome. Kimberly Molloy was tested, and it was determined that she is a carrier of fragile X.

Respondents initiated this lawsuit on August 23, 2001, alleging that Drs. Meier, Backus, and Green and their employers were negligent in the care and treatment rendered to S.F., Kimberly Molloy, and Glenn Molloy by failing to order fragile X testing on S.F., failing to read and interpret the laboratory results from the test that S.F. underwent, negligently reporting to S.F.'s parents that S.F. had been tested for fragile X and that she did not have that condition, and failing to counsel respondents regarding their risks of passing an inheritable genetic abnormality to future children. Respondents allege that had they known of S.F.'s condition, they would not have conceived M.M. and that, as a result of appellants' negligence, they have incurred and will continue to incur medical, educational, and other expenses relating to M.M.

Appellants brought motions for summary judgment, subsequently denied by the district court. Appellants then brought a motion to certify the issues presented by their summary-judgment motions as important and doubtful for the purpose of bringing an appeal pursuant to Minn. R. Civ. App. P. 103.03(i). The district court granted appellants' motion on September 30, 2002, and certified four issues. By order, this court consolidated the two appeals on October 25, 2002. In a separate order, this court dismissed certified question number four pertaining to damages because the district court did not rule on this issue and it did not appear that the issue was relevant to appellants' motion for summary judgment.


I. Does a physician who fails to test for and diagnose a genetic disorder in a child owe a legal duty to that child's parents who have a subsequent child that also has that disorder?

II. When does a cause of action accrue in a medical malpractice claim alleging failure to test for and diagnose a genetic disorder in a child, when a subsequent child was born with the same disorder?

III. Does Minn. Stat. ยง 145.424 (2002) prohibit parents from bringing an action alleging they would not have conceived the ...

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