Mother sues for $14.5 million for “wrongful birth” of daughter born with Cystic Fibrosis

By Dave Andrusko

Kerrie Evans of Gardiner, Montana, testifies in District Judge Mike Salvagni's courtroom on Wednesday.

Kerrie Evans of Gardiner, Montana, testifies in District Judge Mike Salvagni’s courtroom on Wednesday.

On Wednesday a Montana mother delivered her opening statement in a civil trial where she is suing her health care providers for $14.5 million in damages because she says they did not diagnose her daughter’s cystic fibrosis. Kerrie Evans says she would have aborted had she known that about her daughter, now nearly six years old.

Attorneys for the defendants, Livingston HealthCare, nurse Peggy Scanson, Bozeman OBGYN, and Dr. William Peters flatly reject the allegation. According to reporter Whitney Bermes of the Bozeman Daily Chronicle, the defendants

argue that Evans did not read information provided by her medical providers and showed no interest in getting tested for cystic fibrosis during her pregnancy.

“Peggy Scanson should not be blamed for this child’s medical condition or for the fact that this child was born into life in the first place,” said Julie Lichte, attorney for Scanson and Livingston HealthCare.

“(The defendants) did not give (the girl) cystic fibrosis. She was either going to be born with cystic fibrosis or (the girl) was not going to be born,” said Lisa Speare, attorney for Peters and Bozeman OBGYN.

In 2009, Evans then 38, said she became unexpectedly pregnant. After that fact, the parties agree on little else, according to stories in the Daily Chronicle, the Associated Press, and the Daily Mail.

For example, Evans testified Wednesday that during her initial prenatal meeting with nurse Scanson, she was given information that included brochures on a variety of topics, including cystic fibrosis and genetic testing. According to reporter Bermes, Evans said that she specifically asked to be tested for Down syndrome and cystic fibrosis. Bermes wrote

And when Scanson asked Evans if she would terminate her pregnancy if her fetus did have those conditions, “Yes, I was going to have an abortion,” Evans told jurors.

Evans was also advised of chorionic villus sampling (CVS), which is a type of test that can diagnose abnormalities such as cystic fibrosis. Evans was referred to Peters, who performed that type of test in Bozeman.

However, Evans was not given any information on cystic fibrosis carrier screening, a different test that would have shown that both she and her husband were carriers for the gene that caused the genetic disorder.

Evans’ CVS screening results showed that her daughter was healthy, Evans said, and she continued with a normal pregnancy.

Evans then told the court she was “devastated” when she was later told her daughter was diagnosed with cystic fibrosis, adding at no time during her pregnancy was she given information about cystic fibrosis screening.

As noted above, the defendants dispute Evans recollection of events. Scanson, for instance, provided Evans with brochures that informed her about cystic fibrosis. Subsequently, according to attorneys for the defendants, Evans was told about the option for the additional cystic fibrosis carrier screening during her CVS procedure with Peters.

“It’s not Dr. Peters’ requirement that he offer cystic fibrosis carrier screening. But he did it anyway,” said Lisa Speare, attorney for Peters and Bozeman OBGYN. “That’s part of his routine practice.”

Speare maintained that Evans showed concern about cystic fibrosis only after her daughter was born, Bermes reported.

Ironically, the first witness was Evans’ mother-in-law Marie who described Evans’ 5-year-old daughter as happy, busy and intelligent.

“When she comes into the room, she just kind of lights up the whole room,” Marie testified.

Marie also told jurors that Kerrie is a “very protective” mother, according to Bermes. ““I could not have chosen a better mother for (the girl) than Kerrie if I would have handpicked her myself,” Marie said.

In a motion seeking to dismiss the case, Park Clinic and Scanson’s attorneys said, “This request is against public policy and would set a dangerous precedent.”’

They also argued “Montana law does not recognize a ‘wrongful birth’ as a legal cause of action that would allow Evans to seek damages for the very existence of her daughter.”

The AP’s Amy Beth Hanson noted in her story that last fall, the Washington State Court of Appeals upheld a $50 million verdict “in the case of a couple whose son was born with severe birth defects due to a genetic disorder that the parents specifically asked that he be screened for. Lab mistakes led to incorrect information being given to the parents.”

Hanson added, “The Oregon Court of Appeals said last month that the parents of two boys with muscular dystrophy can proceed with an $11 million lawsuit, in which they argue they never would have conceived another child if doctors treating their oldest son had diagnosed his muscular dystrophy in a timely manner.”

Evans’ daughter has a severe form of cystic fibrosis, according to the news accounts. Evans says the $14.5 million in damages is for the costs of raising her child, emotional distress, and medical expenses.

Her daughter attends school, participates in gymnastics, and has received all the recommended medical care, according to Julie Lichte, Scanson’s attorney.

“It’s far from the death sentence or life not worth living that some would have you believe,” Lichte said.

The trial is slated to last until February 19.

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