1. A physician who undertakes to test for and diagnose a genetic disorder in an existing child owes a duty of care to the biological parents of the child when it is reasonably foreseeable that the parents would be injured if the testing and diagnosis are negligently performed.
When the claim is that if the diagnosis of Fragile X had been properly made, a tubal ligation would have been performed and conception avoided, damage does not occur until the point of conception, and the cause of action then accrues.
Minnesota Statutes § 145.424 (2002) does not prohibit parents from bringing an action alleging that they would not have conceived a subsequent child if they had been informed of the diagnosis of a genetic disorder in an existing child.
The opinion of the court was delivered by: Meyer, Justice.
Concurring in part and dissenting in part, Page, J.
Took no part, Gilbert, J.
Heard, considered, and decided by the court en banc.
Kimberly Molloy (Molloy) and her husband, Glenn Molloy, brought a medical malpractice action against appellants Dr. Diane Meier, Dr. Reno Backus, and Dr. Kathryn Green, claiming they were negligent in failing to diagnose a genetic disorder in Molloy's daughter and their negligence caused Molloy to conceive another child with the same genetic disorder. The district court denied the appellants' motion for summary judgment and concluded that a physician who performs genetic tests on a child owes a duty to the biological parents of that child; that the action did not accrue until the time of conception and, therefore, was not time-barred; and that the action was not barred by Minn. Stat. § 145.424 (2002), which prohibits causes of action for wrongful birth and wrongful life. The court of appeals answered three certified questions and upheld the denial of summary judgment.*fn1 We granted review and now affirm the court of appeals.
This case arises out of the medical treatment of S.F., the daughter of Kimberly Molloy and her ex-husband, Robert Flomer. As a young girl, S.F. was treated by appellant Dr. Diane M. Meier at Partners in Pediatrics (formerly Oakdale Pediatrics). When S.F. was three years old, Dr. Meier noted during a check-up that S.F. was developmentally delayed. Dr. Meier ordered a number of tests, but the results did not reveal the source of S.F.'s difficulties. On May 18, 1992, Dr. Meier met with Molloy, Robert Flomer, and S.F. to discuss the possible causes for S.F.'s developmental delays, including the possibility of a genetic cause. Molloy told Dr. Meier about Molloy's mentally retarded half-brother and asked Dr. Meier to conduct genetic tests on S.F. to determine whether S.F. had inherited any abnormalities from Molloy.
In her notes from the May 18 visit, Dr. Meier wrote "? chromosomes fragile X," which meant she intended to order chromosomal testing and testing for Fragile X syndrome.*fn2 In May of 1992, a Fragile X chromosomal test capable of diagnosing the disorder with 70 to 80 percent accuracy was in widespread use. A parent who is a carrier of Fragile X has up to a 50 percent chance of giving birth to a child with the condition. Although physicians can treat the symptoms of Fragile X, the condition itself is incurable. Dr. Meier conceded that "it was appropriate to test [S.F.] for [F]ragile X in keeping with accepted standards of pediatric practice on May 18, 1992." According to Molloy, Dr. Meier told her that if S.F. tested positive for a genetic disorder, Molloy should be tested herself.
On June 17, 1992, the chromosome testing ordered by Dr. Meier was performed at North Memorial Medical Center. On July 18, 1992, North Memorial's laboratory reported normal chromosome testing for S.F. Dr. Meier received the test results, telephoned the Flomers and informed them that the test results were negative; i.e., normal. However, Dr. Meier failed to mention that Fragile X testing had not been performed.*fn3 The Flomers then informed Molloy that the test results were "normal." Based on the fact that Dr. Meier had mentioned Fragile X in her discussion of chromosomal testing, Molloy assumed that the negative test results included a negative result for Fragile X.
Meanwhile, on June 23, 1992, S.F. was referred by Dr. Meier to the Minneapolis Clinic of Neurology where she was seen by Dr. Reno Backus. Dr. Backus testified in his deposition that his role was to evaluate S.F. and report back to Dr. Meier, the referring physician. Dr. Backus met with S.F., Molloy, and the Flomers, and diagnosed S.F. with a pervasive developmental delay of unknown origin. Molloy inquired about her chances of conceiving another child with S.F.'s defect. According to Molloy, Dr. Backus responded that S.F.'s problems were not genetic in origin and the risk that Molloy might give birth to another child like S.F. was extremely remote, especially with a father other than Robert Flomer. Dr. Backus was aware that chromosomal testing had been done but he made his assessment before the test results were known.
Several years later S.F. was referred to Dr. Kathryn Green, who was an employee of the Minneapolis Clinic of Neurology. When Dr. Green saw S.F. on April 30, 1996, she had the office chart of Minneapolis Clinic, including Dr. Backus's 1992 report. There were no Fragile X testing results in the chart because the testing had never been done. Dr. Green knew of Molloy's mentally retarded half-brother who had exhibited problems similar to S.F.'s. Despite having this information, Dr. Green did not order or recommend Fragile X testing. Dr. Green testified that she recognized the importance of Fragile X testing in general, but she assumed such tests had already been performed on S.F. and had come back negative, as S.F. had already seen three physicians.
In the meantime, Molloy remarried and gave birth to M.M. on June 30, 1998. M.M. showed signs of the same developmental difficulties as S.F., so his pediatrician, Dr. David Tilstra, ordered Fragile X testing for him. The Fragile X test results were positive; i.e., M.M. carried the Fragile X genetic disorder. When Dr. Tilstra received the positive results, he counseled Kimberly and Glenn Molloy about Fragile X syndrome and recommended that they and other potentially affected family members receive testing. Based on Dr. Tilstra's recommendation, S.F. and Kimberly Molloy were tested for Fragile X, and it was discovered that they both carried the genetic disorder.
Molloy commenced 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 properly read those lab tests that were performed, mistakenly reporting that S.F. had been tested for Fragile X, and failing to provide counseling to Kimberly and Glenn Molloy regarding the risk of passing an inheritable genetic abnormality to future children. Molloy claimed she would not have conceived M.M. if Drs. Meier, Backus, and Green had correctly diagnosed S.F. with Fragile X and informed Molloy of the diagnosis.
Drs. Meier, Backus, and Green and their employers moved for summary judgment, arguing that they did not owe a duty to the family of a patient and that, in any event, Molloy's action was barred by the four-year statute of limitations for medical malpractice claims. In opposition, Molloy presented expert testimony of a pediatrician and a pediatric neurologist who described the prevailing standard of care in the medical community with respect to testing and counseling for genetic disorders. The experts indicated that a patient who exhibits the symptoms of this disorder with a family history of mental retardation should be tested for Fragile X. Further, a physician who identifies the possibility of Fragile X has a responsibility to follow up to confirm that the tests are performed. Finally, the physician of a child with Fragile X has an obligation to provide genetic counseling to the child's family.
In deposition testimony, the appellants each somewhat confirmed the standard of care described by Molloy's expert witnesses. Dr. Meier admitted that her practice is to communicate the results of Fragile X testing to the child's "primary" parents and inform them that the condition may be inherited. Dr. Backus acknowledged that Fragile X testing would have been appropriate for a child such as S.F. and that diagnoses of diseases such as Fragile X have implications for the entire family. Dr. Green conceded that a physician ...