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Letters I to the Editor
Letters are welcomed and will be published, if found suitable, as space permits. The editors reserve the right to edit and abridge letters, to publish replies, and to solicit responses from authors and others. Letters should be submitted in duplicate, double-spaced (including references), and generally should not exceed 400 words.
On 'Genetic Counseling and Wrongful Life' In "Genetic Counseling and Wrongful Life" (in Public Health and the Law, Am. J. Public Health 68: 501502, 1978) William Curran finds "great difficulty in supporting the distinction offered in the Park case" and indicates his belief that obstetricians have "an obligation . . . to include a relevant genetic history to the extent that it has a bearing on significant risks in the pregnancy and the birth of a defective child." I strongly disagree with him and suggest that he define his terms "relevant" and "significant" for the benefit of the nation's obstetricians. There is a very major difference between the Park and the Howard cases. The Parks had already had a baby with a serious genetic disease and then asked the obstetrician for counseling. He was tipped off, yet led them astray. That is much different than requiring obstetricians to take complete genetic histories plus appropriate, expensive laboratory tests on all of their patients in order to discover an occasional carrier of genes which might result in babies with genetic defects. There are many genetic diseases with the same rare frequency of occurrence as Tay Sachs Disease. In fact, the average obstetrician will never deliver a baby with Tay Sachs Disease, even in New York City. Even sickle cell anemia which is a "common" genetic disease occurs only about once in every 500 births to black parents. Obstetricians should attempt to 1026
obtain better genetic histories than they now do, but it seems grossly unfair to subject them to litigation simply because they fail to learn that one of their patients is the carrier of a gene that may result in a genetic defect. Minor acts of omission are a daily occurrence in medicine in spite of one's best efforts; and, all too often the patient is the one who simply forgot about a key fact. If screening for genetic diseases were to become a simple and inexpensive procedure involving one easily obtained laboratory specimen which would be tested for all of them simultaneously, then the matter would be entirely different. Until then, the legal Pandora's Box which Curran is ready to open should best remain closed. Max Bader, MD, MPH 2305 N. W. 94th St. Seattle, WA 98117
Professor Curran Responds I share Dr. Bader's concern for excessive litigation and unwarranted extensions of liability in many medical fields. I do not decide the law, I merely report on my interpretation of the case law coming to us every day. Dr. Bader's quarrel is not with me, it is with the courts. I suggested in my column what I believe to be prudent advice to obstetricians in genetic counseling of their patients. The distinctions in the Park and Howard cases have yet to be pressed in the highest court of New York. I do not believe that obstetricians should advise their patients about genetic problems only if asked or only if they already had a baby with a serious genetic defect. Obstetricians should first of all, follow the accepted practices of their specialty. Second, they should counsel patients on signifi-
cant risks they may face as a result of taking an adequate genetic history, a relevant genetic history, which is taken by competent, well-trained obstetricians. Dr. Bader asks me to define the terms "relevant genetic history" and "significant risks in the pregnancy and the birth of a defective child." On the contrary, I must point out to Dr. Bader that these are the terms the courts use, not my terms. The key point here is that Common Law courts in malpractice litigation traditionally use terms like these. The courts are not legislatures. They do not make specific regulations. They lay down very general guidelines. The further definition of the terms is left to the practitioners in the fields concerned. The fleshing out of these terms may occur in further cases as a result of expert obstetrical testimony as to what reasonable, competent specialists in obstetrics do in counseling similar patients about genetic risks. That is my position. I hope that the courts will follow this tradition in the future and do not force any legal definition of these terms upon the profession. Dr. Bader is incorrect in his last paragraph, both in regard to my column and in regard to the cases. I do not advocate that obstetricians become insurers of healthy babies for their patients. As I said in my column, this is "utter nonsense." Dr. Bader admits that better genetic counseling is needed. This is all I support. This is the way obstetricians can and should protect themselves from liability. I have the sometimes disagreeable task to advising physicians about these obligations now required by the courts. It is my hope that obstetricians will follow good genetic counseling practices and that the courts will require only this and will not make obstetricians strictly liable for every defective baby they deliver. It is the latter ominous development that AJPH October, 1978, Vol. 68, No. 10
o
Letters I to the Editor
Letters are welcomed and will be published, if found suitable, as space permits. The editors reserve the right to edit and abridge letters, to publish replies, and to solicit responses from authors and others. Letters should be submitted in duplicate, double-spaced (including references), and generally should not exceed 400 words.
On 'Genetic Counseling and Wrongful Life' In "Genetic Counseling and Wrongful Life" (in Public Health and the Law, Am. J. Public Health 68: 501502, 1978) William Curran finds "great difficulty in supporting the distinction offered in the Park case" and indicates his belief that obstetricians have "an obligation . . . to include a relevant genetic history to the extent that it has a bearing on significant risks in the pregnancy and the birth of a defective child." I strongly disagree with him and suggest that he define his terms "relevant" and "significant" for the benefit of the nation's obstetricians. There is a very major difference between the Park and the Howard cases. The Parks had already had a baby with a serious genetic disease and then asked the obstetrician for counseling. He was tipped off, yet led them astray. That is much different than requiring obstetricians to take complete genetic histories plus appropriate, expensive laboratory tests on all of their patients in order to discover an occasional carrier of genes which might result in babies with genetic defects. There are many genetic diseases with the same rare frequency of occurrence as Tay Sachs Disease. In fact, the average obstetrician will never deliver a baby with Tay Sachs Disease, even in New York City. Even sickle cell anemia which is a "common" genetic disease occurs only about once in every 500 births to black parents. Obstetricians should attempt to 1026
obtain better genetic histories than they now do, but it seems grossly unfair to subject them to litigation simply because they fail to learn that one of their patients is the carrier of a gene that may result in a genetic defect. Minor acts of omission are a daily occurrence in medicine in spite of one's best efforts; and, all too often the patient is the one who simply forgot about a key fact. If screening for genetic diseases were to become a simple and inexpensive procedure involving one easily obtained laboratory specimen which would be tested for all of them simultaneously, then the matter would be entirely different. Until then, the legal Pandora's Box which Curran is ready to open should best remain closed. Max Bader, MD, MPH 2305 N. W. 94th St. Seattle, WA 98117
Professor Curran Responds I share Dr. Bader's concern for excessive litigation and unwarranted extensions of liability in many medical fields. I do not decide the law, I merely report on my interpretation of the case law coming to us every day. Dr. Bader's quarrel is not with me, it is with the courts. I suggested in my column what I believe to be prudent advice to obstetricians in genetic counseling of their patients. The distinctions in the Park and Howard cases have yet to be pressed in the highest court of New York. I do not believe that obstetricians should advise their patients about genetic problems only if asked or only if they already had a baby with a serious genetic defect. Obstetricians should first of all, follow the accepted practices of their specialty. Second, they should counsel patients on signifi-
cant risks they may face as a result of taking an adequate genetic history, a relevant genetic history, which is taken by competent, well-trained obstetricians. Dr. Bader asks me to define the terms "relevant genetic history" and "significant risks in the pregnancy and the birth of a defective child." On the contrary, I must point out to Dr. Bader that these are the terms the courts use, not my terms. The key point here is that Common Law courts in malpractice litigation traditionally use terms like these. The courts are not legislatures. They do not make specific regulations. They lay down very general guidelines. The further definition of the terms is left to the practitioners in the fields concerned. The fleshing out of these terms may occur in further cases as a result of expert obstetrical testimony as to what reasonable, competent specialists in obstetrics do in counseling similar patients about genetic risks. That is my position. I hope that the courts will follow this tradition in the future and do not force any legal definition of these terms upon the profession. Dr. Bader is incorrect in his last paragraph, both in regard to my column and in regard to the cases. I do not advocate that obstetricians become insurers of healthy babies for their patients. As I said in my column, this is "utter nonsense." Dr. Bader admits that better genetic counseling is needed. This is all I support. This is the way obstetricians can and should protect themselves from liability. I have the sometimes disagreeable task to advising physicians about these obligations now required by the courts. It is my hope that obstetricians will follow good genetic counseling practices and that the courts will require only this and will not make obstetricians strictly liable for every defective baby they deliver. It is the latter ominous development that AJPH October, 1978, Vol. 68, No. 10
