Khadim v. Lab. Corp. of Am.

• Decision Date: 07 November 2011
• Docket Number: Civil Action No. 3:11–CV–00019.
• Citation: 838 F.Supp.2d 448
• Parties: Seema KHADIM, et al., Plaintiffs, v. LABORATORY CORPORATION OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

838 F.Supp.2d 448

Seema KHADIM, et al., Plaintiffs,

v.LABORATORY CORPORATION OF AMERICA, et al., Defendants.

Civil Action No. 3:11–CV–00019.

United States District Court,

W.D. Virginia,

Charlottesville Division.

Nov. 7, 2011.

Edward Kyle McNew, Michael Bryan Slaughter, Michie Hamlett Lowry Rasmussen & Tweel PC, Rhonda Quagliana, St. John Bowling & Lawrence LLP, Charlottesville, VA, for Plaintiffs.

Bruce R. Parker, Pro Hac, Vice, Venable LLP, Baltimore, MD, Damon W.D. Wright, Venable LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

Plaintiffs, Ms. Seema Khadim and Mr. Sultan Zeb, are a married couple who filed a “wrongful birth” suit in the Circuit Court for the City of Charlottesville, alleging that negligence on the part of Defendants, Laboratory Corporation of America and Laboratory Corporation of America Holdings (collectively, “LabCorp”),¹ led to erroneous prenatal genetic testing results for Plaintiffs' then-unborn child.² Defendants removed the case here.

Currently pending are the parties' cross-motions (docket nos. 32 & 36) for partial summary judgment, and Plaintiffs' motion to strike (docket no. 39) a declaration submitted by LabCorp in support of its motion for summary judgment. The motions for partial summary judgment present the following questions:

1) Is Sultan Zeb a proper plaintiff in this “wrongful birth” action?

2) Is LabCorp a “health care provider” under the Virginia Medical Malpractice Act (“VMMA”), Va.Code. § 8.01–581.1 et seq., thus subjecting damages in this action to the limitation provided in the VMMA? ³

For the reasons stated herein, I find that Sultan Zeb is a proper plaintiff, and I will deny Defendant's motion, in part, on that ground. Regarding the limitation of damages under the VMMA, I find that LabCorp is a “health care provider” under the VMMA, and the VMMA's limitation on damages does indeed apply here; accordingly, I will grant Defendant's motion, in part, on that ground, and I will deny Plaintiff's motion, which contends that LabCorp is not a “health care provider” and seeks partial summary judgment that the VMMA's cap on damages does not apply. And, for reasons stated herein, Plaintiffs' motion to strike fails, and it will be denied.

I.

Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment (or partial summary judgment) “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to preclude summary judgment, the dispute about a material fact must be “ ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). However, if the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994). If the nonmoving party bears the burden of proof, “the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the moving party shows such an absence of evidence, the burden shifts to the nonmoving party to set forth specific facts illustrating genuine issues for trial. SeeFed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

II.⁴

A.

Plaintiffs decided to have a child together. Both Khadim and Zeb are unaffected carriers of the “thalassemia beta trait.” The complaint describes thalassemia, in pertinent part, as follows:

Thalassemia is the name of a group of inherited blood disorders that causes the body to make less hemoglobin, the substance in red blood cells that transports oxygen from the lungs to other parts of the body.

Hemoglobin consists of two different proteins, an “alpha” and a “beta.” People who do not produce enough “alpha” protein have alpha thalassemia, and those who do not produce sufficient “beta” protein have beta thalassemia.

There are three different types of beta thalassemia. The mildest form is thalassemia minor, which is also known as thalassemia trait. Someone with thalassemia minor has no major symptoms and is just a carrier of the genetic trait for thalassemia. In thalassemia intermedia, the lack of beta protein in the hemoglobin is significant enough to cause a moderately severe anemia and significant related health problems.

The most severe form of beta thalassemia is thalassemia major, also known as Cooley's anemia. People afflicted with Cooley's anemia have a complete lack of beta protein in the hemoglobin. This condition causes a life-threatening anemia that requires regular blood transfusions and extensive ongoing medical care. These extensive, lifelong blood transfusions lead to iron-overload which can cause serious organ damage. Additionally, those afflicted experience excruciating pain in the aftermath of blood transfusions; female sufferers are often rendered infertile; and the lifespan of persons affected by this disease is likely shortened. They also require frequent hospitalizations and other medical interventions throughout their lives to manage the serious illness.

Plaintiffs, unaffected “carriers only” of the thalassemia beta trait, “each possess one genetic defect. People who suffer from Cooley's anemia have two genetic defects.” The complaint continues:

Both Khadim and Zeb have, and have had, multiple family members affected by Cooley's anemia and have witnessed the devastating effects of the disease first hand. As a result, each was acutely aware of the consequences that Cooley's anemia would have on an affected person.

* * *

Knowing that both were carriers, Khadim and Zeb understood that there was a one-in-four chance that their baby would be affected, rather than merely a carrier.

Conducted properly, genetic testing can be performed to determine if a fetus has a single gene defect, and is thus only a carrier, or if a fetus has two gene defects, in which case the baby would be affected by the more serious forms of the disease.

After much deliberation and after seeking religious and other guidance, Khadim and Zeb made the difficult and very personal decision that, if their fetus had two defective genes and would therefore be affected by the disease, they would terminate the pregnancy at the earliest possible stage.

Khadim became pregnant, and sought genetic counseling. Amniocentesis was performed by Khadim's doctor “[o]n or about March 3, 2009.” The collected material was forwarded first to Genzyme, a laboratory that “did not have the capability to perform testing for thalassemia.” That laboratory then “sent the material to the LabCorp Defendants to perform prenatal genetic testing for thalassemia.” LabCorp “represented that they were equipped to perform such testing quickly and accurately,” and provided prenatal diagnostic testing services “[f]rom on or about March 2009 to September 2009 ... to determine whether Plaintiffs' then unborn child was affected by Cooley's anemia.”

In this case, it appears that the “linear array”

test strip that contained the genetic information belonging to the fetus appears to have been intentionally cut so that crucial genetic information was missing and could not be properly interpreted.... At the top of the fetus' test strip, the clearly marked “reference line” does not line up with the reference guide because the part of the strip containing the reference line is missing, having been cut.... It is evident that some of the genetic information is simply missing and that the array was intentionally made defective because it was cut....

Ultimately, Plaintiffs were informed that their fetus was an unaffected carrier. “Notwithstanding the obvious defect and that the critical genetic information needed for an accurate diagnosis is missing from the test strip, the technician who performed the testing relied upon a test that was defective on its face and reported that the baby was a carrier,” and, “[d]espite the obvious defect in the test material,” the Director of LabCorp's Molecular Genetics Laboratory, Dr. Kenneth Friedman, “reviewed the technician's findings and approved the technician's conclusions despite the fact that it is clearly evidence that part of the critical genetic information is absent.”

Subsequently, LabCorp requested additional genetic information from both parents. “Significantly, in this case, the parents happen to carry an identical gene defect,” information that

is critical to the testing procedure. A technician must be particularly cautious in reading the test results because the fetus would share the same mutation as the parents and the genetic testing could appear to reflect the presence of only a single gene mutation, even if the fetus carried the two identical gene mutations inherited from the parents.

The presence of a normal gene would have confirmed the earlier report that the baby was a carrier, not an affected person, because affected persons have two abnormal genes and a normal gene would not have been present in the fetus.

For that reason, it was imperative that the technician examine the baby's test strip not only to identify the absence of a gene, but also the presence of a normal gene.

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