On March 11, 2016, a Maryland medical malpractice jury returned its verdict in the amount of $44.1 million in favor of a married couple who had sued their fertility doctor for medical negligence after their premature baby died 21 days after birth. The Maryland medical malpractice verdict will likely be reduced to less than $1 million, due to Maryland’s cap on non-economic damages in medical malpractice cases. Hence, the jury’s verdict will be given little effect.
The Underlying Facts
Following the birth of the young married couple’s first child, the wife suffered scarring of her uterus that meant that she would be unable to carry another child to term. The loving couple therefore decided to have the wife’s egg harvested and, using the husband’s sperm, go through an IVF procedure followed by implantation of the embryo into a surrogate who would carry the baby to term.
The couple had some difficulty finding an appropriate surrogate. They contacted and arranged for the defendant reproductive endocrinologist (fertility doctor) to screen surrogate candidates for them to determine if the candidates were suitable to carry their baby to term. The fertility doctor rejected several surrogate candidates on their behalf. The couple then found a potential candidate and referred the surrogate candidate to the defendant fertility doctor for appropriate screening.
The couple alleged in their Maryland medical malpractice lawsuit that the standard of care required that the defendant fertility doctor obtain a written report from the potential surrogate’s OBGYN providing the surrogate’s obstetrical history and clearing her to be a surrogate, or the defendant fertility doctor was required to review the potential surrogate’s medical records and clear the candidate for surrogacy herself.
The plaintiffs alleged in their Maryland medical malpractice lawsuit that the defendant fertility doctor did not obtain the potential surrogate’s medical records but only asked the surrogate candidate about her obstetrical history and whether she had been cleared by her own OBGYN to be a surrogate. The surrogate allegedly advised the defendant fertility doctor that she had four prior pregnancies without any complications during those pregnancies, and that her own OBGYN had cleared her to be a surrogate. Based on the surrogate’s responses, the defendant fertility doctor cleared her to be the plaintiffs’ surrogate.
Unbeknownst to the plaintiffs and the defendant, the surrogate allegedly lied about her past pregnancies: the surrogate had given birth to six children (not four) and the most recent pregnancy, which occurred one year prior, was complicated by preeclampsia that resulted in premature birth.
The defendant fertility doctor implanted the plaintiffs’ eggs into the surrogate. During the pregnancy, the surrogate suffered preeclampsia, resulting in the plaintiffs’ baby being born prematurely at 25 weeks. The baby died 21 days after being born, due to sepsis.
The plaintiffs alleged in their Maryland medical malpractice lawsuit that had the defendant obtained a proper prior history of the surrogate from the surrogate’s prior medical providers, instead of trusting and relying upon the surrogate’s honesty in responding to questions regarding her past medical history, the surrogate’s true obstetrical history would have been discovered and the plaintiffs would have rejected her as a surrogate to carry their baby.
The defense argued that it was not of a breach of the standard of care for the defendant fertility doctor to ask the surrogate about her past medical history and to rely upon the surrogate’s responses to be complete and truthful.
If you or a loved one may have a medical negligence claim against a fertility doctor in Maryland or in another U.S. state, you should promptly find a Maryland medical malpractice lawyer, or a medical malpractice in your state, who may investigate your fertility medical malpractice claim for you and represent you in a fertility doctor malpractice case, if appropriate.
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