You be the Judge

[The Armchair]

How would you rule?

This is copy/pasted from a real case. Be the judge:

The issue posed on this appeal is whether it is necessary to establish medical causation in a wrongful birth action that involves the prescription of drugs without adequate warning of the fetal risks posed by those drugs.

On July, 1, 1991, twenty-nine-year-old Melissa Canesi visited Dr. James A. Wilson, an obstetrician/gynecologist, because she had missed her period and wanted to determine whether she was pregnant. A urinalysis yielded the same negative results that a home pregnancy test had. Dr. Wilson prescribed Provera, a drug designed to induce menstruation. Dr. Wilson did not inform Canesi about the side effects and contraindications of Provera. At the time, the Physicians' Desk Reference (PDR) warned that if a woman was or became pregnant while on Provera, she should be informed that there was a risk that the fetus would suffer from congenital abnormalities, including limb reduction, and a risk that she would retain a defective ovum instead of spontaneously aborting it.

The Provera did not induce menstruation. On July 15, Dr. Wilson gave Canesi a blood serum test that resulted in positive for pregnancy. When Canesi learned she was pregnant with twins, she asked Dr. Wilson if her taking the Provera could have any deleterious effects on either the fetuses or the course of her pregnancy. Dr. Wilson told her not to worry. Because Dr. Wilson was not a participating doctor in her health insurance plan, Canesi sought prenatal care from Dr. Ronald Loewe. She told Dr. Loewe of her pregnancy with twins and of her ingestion of Provera. Dr. Loewe also told her not to be concerned that she had taken the drug.

Canesi had problems during her pregnancy. She began spotting, one of the fetal twins died, and amniocentesis revealed excessive amniotic fluid, an indication that the remaining fetus might be suffering from an abnormality. On March 18, 1992, Brandon Canesi was born with the congenital impairment of bilateral limb reduction.

Canesi and her husband sued Drs. Loewe and Wilson, alleging that Dr. Wilson was negligent in failing to diagnose Canesi's pregnancy in a timely manner, that both doctors were negligent for failing to inform her of the effect her ingestion of Provera would have on her fetus and for "otherwise" negligently caring for and treating her. Canesi claimed that had she known of the risk of congenital defects generally, or limb reduction specifically, that Provera posed to her remaining fetus, or if she had been told that she was at an increased risk of retaining a defective ovum, she would have terminated her pregnancy. Also included in the complaint was a claim brought on behalf of Brandon, alleging that Provera caused his bilateral limb reduction and that the doctors were negligent in prescribing the drug to his mother without warning of this risk.

Drs. Wilson and Loewe moved for summary judgment, dismissing the complaint against them. They noted that the Canesis had failed to present any expert testimony that Provera caused fetal limb reduction, and that the latest edition of the PDR no longer contained a warning that Provera was even associated with this defect. Construing the cause of action to involve the lack of informed consent, the doctors contended that because the Canesis could not prove medical causation, as a matter of law, the physicians could not be found liable.