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A woman who had an abortion after a doctor incorrectly said her baby would have Down syndrome may sue the doctor for medical malpractice, the Georgia Court of Appeals held Thursday. A three-judge panel reversed the decision of Chief Judge A.L. Thompson of Fulton County State Court, who last year granted summary judgment to Dr. Philip L. Potter and the Maternal Fetal Diagnostic Center of Atlanta. The case grew out of a 1998 mistake Potter admits: Telling Linda Breyne that genetic testing showed her baby would be born with Down syndrome, which causes mental retardation and other difficulties. Breyne had an abortion, but the next day Potter telephoned her and said the test showed the fetus actually had a condition called Trisomy 47XXX. It does not cause retardation but only developmental delays in learning, speech and motor skills. Breyne sued Potter for medical malpractice, but Thompson threw the case out without explanation. On appeal, Presiding Judge John H. Ruffin Jr., Judge Anne E. Barnes and Senior Judge Marion T. Pope Jr. reinstated the suit. Potter had argued he could not be sued because Breyne made an independent decision to have the abortion. But Barnes, writing for the panel, disagreed. “Under Dr. Potter’s theory, a patient who had her breast amputated unnecessarily after her doctor mistakenly told her she had cancer would have no malpractice claim,” Barnes wrote. “Patients are entitled to rely on their doctors’ diagnoses in deciding a course of treatment.” Barnes also said that Breyne could sue for physical and emotional damages because Breyne’s fetus was not viable at the time of the abortion — meaning an injury to Breyne’s fetus amounted to an injury to Breyne herself. Breyne v. Potter, No. A02A1946 (Ga. Ct. App. Dec. 5, 2002). Breyne’s lawyer, Jonathan J. Wade, could not be reached. The lawyer for Potter and the diagnostic center, Alwyn R. Fredericks, said he did not know whether they would appeal the ruling. But he added, “This case certainly presents some issues that need to be cleaned up.”

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