Clay v. Rippy

• Decision Date: 16 July 2009
• Docket Number: No. A09A0681.,A09A0681.
• Citation: 299 Ga. App. 224,682 S.E.2d 330
• Parties: CLAY et al. v. RIPPY et al.
• Court: Georgia Court of Appeals

682 S.E.2d 330

299 Ga. App. 224

CLAY et al. v. RIPPY et al.

No. A09A0681.

Court of Appeals of Georgia.

July 16, 2009.

Harris, Penn & Lowry, Jed D. Manton, Atlanta, for appellants.

Huff, Powell & Bailey, Michael S. Bailey, Julye M. Johns, Owen, Gleaton, Egan, Jones & Sweeney, H. Andrew Owen, Jr., Shannon C. Shipley, Atlanta, Hall, Booth, Smith & Slover, Terrell W. Benton III, Athens, Kevin A. Leipow, Carlock, Copeland & Stair, Atlanta, Rebecca C. Wall, for appellees.

ANDREWS, Presiding Judge.

Tina Clay appeals from the trial court's grant of summary judgment to the defendant health care providers on her child's claim of a "preconception tort." The complaint alleged that defendants committed medical malpractice by failing to advise Clay to take folic acid supplements before she became pregnant. Because we agree that there is no evidence that the doctors' treatment of Clay fell below the requisite standard of care, we affirm.

The plaintiff in this case, six-year-old Tia Guinn, alleges that the defendant health care providers committed medical malpractice by failing to advise her mother to take folic acid supplements before she was conceived. Guinn claimed that the supplements were necessary to reduce the risk of neurological defects, especially in light of the fact that her mother had already conceived a child with such defects. She alleges that this failure to advise her mother caused her to be born with profound neurological problems.

Viewed in the light most favorable to Guinn and Clay, the record shows that Clay went to her county health department in March 1999 to see if she was pregnant. She was 19 years old, had never been to a gynecologist and had no primary care physician. Clay was referred to obstetrician-gynecologist Lee Rippy because she was 11 weeks pregnant. Although she could not recall Rippy's prescribing or giving her prenatal vitamins, Rippy's records show that he placed her on prenatal vitamins when she first saw him.

In April 1999, Rippy saw a "shadow" on Clay's ultrasound and referred her to Dr. Richard Molina at Atlanta Maternal-Fetal Medicine, a specialist who managed high-risk pregnancies, for a high-resolution ultrasound and consultation. On May 4, 1999, Molina confirmed that, at 21 weeks, Clay's baby had a severe neural tube defect. Molina counseled Clay regarding the baby's prognosis and her options, which included a therapeutic termination of the pregnancy. Clay testified she was "kind of in shock" and did not discuss with Molina what the diagnosis would mean for a future pregnancy. Molina scheduled Clay for a follow-up ultrasound on May 24, 1999, and faxed his results to Dr. Rippy.

Clay saw Rippy two days later and he recommended that she terminate the pregnancy. Rippy told Clay that the baby would have severe birth defects and would not likely survive. Clay testified she had no discussion with Rippy regarding folic acid, prenatal vitamins, causation, or what the diagnosis would mean for a future pregnancy. Clay decided to terminate the pregnancy and went to Dr. Malloy, who performed the procedure at the Atlanta SurgiCenter. Although instructed to do so by Rippy, Clay did not schedule a follow-up appointment with him following the termination.

In 2002, Clay was seen in the emergency room in Panama City and found out that she was pregnant again. She returned to Rippy for prenatal care in April 2002. Clay stated that she did not recall Rippy's prescribing prenatal vitamins until she asked for them in the third or fourth month of her pregnancy and said she had no discussions with him about her baby's increased risk of spina bifida or the importance of folic acid. She took prenatal vitamins throughout the rest of her pregnancy.

Clay underwent numerous tests recommended by Rippy during her 2002 pregnancy. The tests confirmed that this child was also developing with serious neurological defects. Clay chose not to terminate this pregnancy, and Tia Guinn was born in November 2002 with severe birth defects.

On behalf of her daughter, Clay sued Rippy and his practice, Newton County Women's Health Center, P.C., d/b/a Newton Women's Health Center; Molina, the maternal-fetal medicine specialist who examined her in 1999, and his practice, Atlanta Maternal-Fetal Medicine, P.C. Malloy, the physician who terminated her pregnancy in 1999; and the clinic where the termination was performed, Atlanta SurgiCenter, Inc.¹ Clay alleged that the doctors committed malpractice by failing to prescribe and recommend that she take four mg. of folic acid daily before conceiving again to reduce the risk of having another baby with neurological defects.

In his affidavit, Clay's expert opined that all of the defendants were obligated, following the termination of her 1999 pregnancy, to recommend and prescribe for Clay a daily four mg. regimen of folic acid in order to prevent a recurrence of a neural tube defect in a subsequent pregnancy. According to the medical records, none of the doctors made such a recommendation or issued a prescription, or even spoke to her about the connection between folic acid and the prevention of this birth defect. The expert concluded that Tia Guinn had "severe spina bifida as a direct result of the failure of her health care providers to administer appropriate folic acid to her in the peri-conceptual time period."

In granting summary judgment, the trial court noted that the statute of limitation does not bar the child's claim because OCGA § 9-3-73(b) allows a minor to bring a medical malpractice action within two years from the date of her fifth birthday if the cause of action arose before she became five, as happened here. The court then found that the link between the doctors' conduct and the child's injuries was "too remote for the law to countenance a recovery" because the doctors only treated the mother in conjunction with her 1999 pregnancy and she never returned to any of them for post-termination or preconception care, treatment, or consultation. Under the facts and circumstances of this case, the trial court held, the connection between the doctors' actions and the child's injuries was "too remote to hold that Defendants owed a duty of care to unanticipated unconceived children simply because Clay was of childbearing years." This appeal followed.

First, we agree with Clay that, given the proper circumstances, a cause of action could exist in Georgia for preconception torts. McAuley v. Wills, 251 Ga. 3, 6, 303 S.E.2d 258 (1983) holds: "To the extent that the trial court ruled that a person owes no duty of care toward an unconceived child, we must disagree. Cases cited in Division 4, supra, show that, at least in some situations, a person should be under a duty of care toward an unconceived child." Id. at 6, 303 S.E.2d 258. Division 4 cites medical malpractice cases and one suit against a pharmaceutical company. Id. at 5-6, 303 S.E.2d 258.

Next, we look to the specific claims against each of the doctors. "[T]here are three essential elements [in a medical malpractice claim]: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." Hawkins v. Greenberg, 166 Ga. App. 574, 575, 304 S.E.2d 922 (1983).

Here, the medical malpractice affidavit sets out the standard of care as follows:

Following the termination of Ms. Clay's 1999 pregnancy, Dr. Rippy, Dr. Molina and Dr. Malloy each were obligated by the standard of care to recommend and prescribe for Ms. Clay a daily 4 mg. regimen of folic acid in order to prevent a recurrence of a neural tube defect in the event of a subsequent pregnancy. None of them made such a recommendation or issued such a prescription; nor did any of them, according to the medical records, even speak to Ms. Clay about folic acid and the prevention of a neural tube defect.

1. With regard to the claims against Dr. Rippy, the affidavit states: "The negligence and departures from the standard of care of Dr. Rippy ... include a failure to recommend and prescribe appropriate folic acid to Ms. Clay following the termination of her 1999 pregnancy."² Rippy did not dispute that the standard of care required that he "supply the information [regarding the link between folic acid and NTD] in an understandable way and be complete."

Rippy claimed that he told Clay about the relationship between folic acid and neural tube defects when he saw her on May 6, 1999, before the first pregnancy was terminated, and never had the opportunity to reinforce that counseling regarding future pregnancies because she did not call him to make an appointment for a follow-up visit. When asked whether he would send a letter or make a phone call to Clay regarding the recommendation she take folic acid if he had not told her about it, he responded, "No. I would not have.... [S]he knew very well when she left the office that day it was her obligation she needed to come back in for a visit, and that is more than sufficient." By the time Clay returned to see Rippy, she was pregnant again and it was too late for a folic acid supplement to reduce the risks of birth defects.

Clay disputed Rippy's testimony that he advised her about folic acid at her May 6 visit before she terminated the 1999 pregnancy. She testified that at no time between the termination of her 1999 pregnancy and her 2002 pregnancy did he call or send a letter telling her she should come see him for an annual visit or recommending she take folic acid.

Assuming that Rippy did not discuss the need for folic acid at the May 6 visit, Rippy's undisputed testimony at his deposition was that he intended to discuss these issues and make medical recommendations to Clay at a follow-up visit. Rippy testified that he told Clay at the May 6 visit that "it was important" that she schedule a follow-up visit and that he was "quite specific" on the subject. Rippy...