372 F. Supp. 3d 274
D. Md.2019Background
- Jonathan and Kathryn Dowling underwent IVF at Walter Reed; WRNMMC contracted A.R.T. Institute to provide embryology/ICSI services; embryologist Erika Cullingford analyzed semen samples.
- Dowling had recently begun taking Paxil, which increased sperm DNA fragmentation; March 2012 analysis indicated low initial motility prompting recommendation for ICSI; July 6, 2012 sample used for fertilization showed motility above ICSI threshold but forms still referenced "low initial motility."
- The Dowlings signed an ICSI consent form that warned of "unknown" risks and stated overall congenital-malformation risk could not be ruled out but did not disclose then-available literature linking ICSI and increased congenital risk, especially with high sperm DNA fragmentation.
- The embryo conceived via ICSI resulted in birth of J.A.D., diagnosed prenatally with pentalogy of Cantrell; the child underwent multiple surgeries and later died.
- The Dowlings settled FTCA claims against the United States (Washington case) and later sued A.R.T. and Cullingford in Maryland federal court alleging failures of informed consent, negligent misrepresentation, and constructive fraud; Defendants moved to dismiss and for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA settlement with United States bars suit against A.R.T./Cullingford | Dowling: settlement did not release independent contractors; therefore claims against A.R.T. survive | Defs: settlement broadly released all claims arising from the conduct, so this suit is barred and would allow double recovery | Court: Settlement does not bar claims against A.R.T./Cullingford; summary judgment for Dowling on this narrow point granted |
| Whether later alleged negligence by WRNMMC clinicians (failure to diagnose) is a superseding/intervening cause absolving A.R.T./Cullingford | Dowling: later diagnostic failures are not extraordinary superseding causes; causation remains for jury | Defs: timely diagnosis would have allowed termination and avoided all damages; thus intervening cause breaks chain | Court: Premature to dismiss on this ground; foreseeability is fact-specific; denial of dismissal on causation grounds |
| Whether A.R.T./Cullingford owed and breached informed-consent duties (including failure to disclose ICSI congenital-risk literature and the basis for recommending ICSI) | Dowling: A.R.T. assumed medical/consent duties under its contract; consent omitted material risks and misrepresented which sample justified ICSI, so Dowling would have declined ICSI | Defs: informed consent claims belong only to physicians; consent forms warned of risks; sample results were accurate | Court: Plausible duty and breach pleaded; informed-consent claims survive at pleading stage; A.R.T.'s contractual role makes them healthcare providers for this purpose |
| Whether survivorship/wrongful-death claims (on behalf of J.A.D.) are cognizable or barred as a "wrongful life" claim | Dowling: claims seek damages for injury caused by ICSI (difference between born with defects vs. born without), not existence vs. nonexistence | Defs: This is effectively a wrongful-life claim (impermissible under Kassama); survivorship also may be time-barred | Court: Applicability of Kassama is uncertain on these facts (ICSI as cause); question better suited for Maryland Court of Appeals after development of record; tolling/limitations questions deferred pending merits |
Key Cases Cited
- United States v. Orleans, 425 U.S. 807 (FTCA is limited waiver of sovereign immunity)
- Robb v. United States, 80 F.3d 884 (4th Cir. 1996) (FTCA excludes independent contractors)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standard requires factual plausibility)
- Sard v. Hardy, 281 Md. 432 (physicians must disclose material risks; test for materiality)
- McQuitty v. Spangler, 410 Md. 1 (informed-consent duty applies to healthcare providers)
- Kassama v. Magat, 368 Md. 113 (Maryland rejects "wrongful life" claims)