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The Georgia Supreme Court ruled three years ago that state law did not allow for medical malpractice suits claiming “wrongful births” — cases brought by parents who would have terminated pregnancies had doctors warned them of foreseeable birth defects. On Thursday, a panel of the Georgia Court of Appeals heard arguments about a claim for what could be called “wrongful abortion,” and sounded ready to order the case to trial. The case grew out of what a doctor admits was his mistake: Phillip L. Potter in 1998 told Linda Breyne and John Sekula that their baby would be born with Down syndrome even though he had received genetic testing results that showed the fetus would have a less serious birth defect. Breyne had sought genetic counseling because she was 40 and had recently taken the antibiotic tetracycline, which can harm fetuses. The couple met with Potter three days later and said they had decided to abort the pregnancy. He told them if they were going to do so, they should do it sooner rather than later. Breyne had an abortion, but the next day Potter telephoned her to report that the test results did not show the fetus had Down syndrome, but rather a condition called Trisomy 47XXX. Court briefs show that Potter said there was little difference between the two conditions, but the lab report stated Trisomy 47XXX would not cause mental retardation, but could increase the risks of developmental delays in speech, neuromotor skills and learning. Most babies with Down syndrome are mentally retarded and have other serious difficulties, according to Healthwise Inc., a medical encyclopedia service displayed on WebMD.com. Breyne and Sekula — the two are not married — sued the doctor for medical malpractice, claiming they decided to abort the pregnancy as a result of the doctor’s misinformation. They asked for damages that included pain and suffering caused by knowing Breyne would have given birth to the child had they known it did not have Down syndrome. But Chief Judge A.L. Thompson of Fulton County State Court last year granted summary judgment to Potter and the Maternal Fetal Diagnostic Center of Atlanta. Thompson did not outline his reasons for the decision. But during oral argument at the Appeals Court, the three judges sounded doubtful of his decision. Breyne v. Potter, No. A02A1946 (Ga. App. Ct. argued, Sept. 11, 2002). The panel — Presiding Judge John H. Ruffin Jr., Judge Anne E. Barnes and Senior Judge Marion T. Pope Jr. — gave the couple’s lawyer an easy ride during his presentation. Except for a few questions clarifying the case law he relied on and what his clients were asking for, Jonathan J. Wade of Webb, Lindsey, Collins, Jones & Wade was free to argue how Potter’s mistake caused his clients to decide to terminate the pregnancy. NO CAUSAL LINK ARGUED The tough assignment was for the doctor’s lawyer, Alwyn R. Fredericks, an associate at Atlanta-based Carlock, Copeland, Semler & Stair, who represented Potter and the diagnostic center. He argued that while Potter gave the wrong information, Breyne made an independent decision to have an abortion. “The causal link was broken,” Fredericks said, citing Roseberry v. Brooks, 218 Ga. App. 202 (1995), to support his argument. In Roseberry, the plaintiff brought a medical malpractice and wrongful-death case against doctors who incorrectly told a pregnant woman undergoing cancer treatments that her fetus had been exposed to fatal amounts of radiation. The court held that the doctors could not be held responsible because the cause of the baby’s abortion was not the incorrect information but the fact that the woman had the abortion in order to qualify for experimental therapy. Ruffin wasn’t impressed. “That case is obviously distinguishable,” he said, adding that in the current matter, “abortion would not ever have come up without the improper information.” In fact, Fredericks responded, Breyne had discussed having an abortion before she sought genetic counseling. The defendants’ brief, authored by Fredericks and Carlock Copeland partner Mary Katherine Greene, says that Breyne was married when she began “an adulterous relationship” with Sekula. The panel continued to express skepticism about Fredericks’ arguments, moving on from causation to whether the doctor breached the standard of care, a necessary element to prove malpractice. As the argument progressed, the judges increasingly sounded frustrated with the doctor’s mistake. “Patients depend on their doctor,” said Pope. “How did this doctor make this terrible mistake?” asked Barnes. “Is it going to happen again?” Fredericks said Potter had no explanation for the mistake. Pope, who recently retired and is sitting on the court until the governor picks a replacement, quipped, “I’m going to start mediation when I leave the bench and [this case] sounds good to me. That’s just a clue.” Fredericks tried a different tack, arguing that it is not good public policy for the government to get involved in a woman’s decision on whether to have an abortion. But Barnes interjected, “It looked like this doctor got involved when he told her she should do it quickly if she was going to do it.” Potter did that to make sure Breyne did not have to undergo a riskier second-trimester abortion, Fredericks responded. Barnes then asked, “It wasn’t a breach of his standard of care to tell her her child had Down syndrome?” Fredericks answered, “I believe it was wrong. It was errant. But it wasn’t a breach of the standard of care.” Barnes said she could not understand how Fredericks honestly could make that claim, but he held his ground, saying, “We’re not going to concede it breached the standard of care.” “Maybe,” Pope interrupted, “we’re going to have to do that for you.” A moment later, Barnes offered Fredericks a little consolation: Despite their tough questioning, she said, “We’re not suggesting you’re arguing in bad faith.”

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