Maldonado v. GeneDx, Inc.
2024 COA 121. No. 23CA2092. Health Care Availability Act—Limitation of Actions—Genetic Testing and Counseling—Genetic Disease or Disorder—Negligent Misrepresentation—Ordinary Standard of Care.
November 21, 2024
Maldonado has a family history of Duchenne muscular dystrophy (DMD). She participated in DMD genetic counseling at Children’s Hospital of Colorado (CH) in anticipation of starting a family, and a CH employee advised her to undergo genetic testing. Hospital caregivers submitted Maldonado’s urine sample to GeneDx, Inc. for testing. Maldonaldo was informed that the testing results were negative and that she was not a DMD carrier. Maldonado and Carcanaques (collectively, parents) then conceived their son, J.A.C., and his twin sister, J.M.C. J.A.C. subsequently tested positive for DMD. Maldonaldo underwent additional genetic testing with a different lab that showed she tested positive for being a DMD carrier. J.M.C. also tested positive for being a DMD carrier. Parents then brought this action on behalf of themselves and on behalf of their twins (collectively, the children), who also asserted claims on behalf of themselves. The complaint alleged that CH and related hospital defendants and GeneDx and related defendants negligently misrepresented to Maldonado that she was not a genetic DMD carrier, and that in reliance on that information, Maldonado ultimately gave birth to J.A.C. (who has developed DMD) and J.M.C. (who is a DMD carrier). The district court dismissed the parents’ claims under CRCP 12(b)(5), reasoning that the lawsuit was outside the scope of CRS § 13-64-502(1)’s exception, which allows lawsuits involving “damage or injury” resulting from a “genetic disease or disorder” that could have been prevented or avoided where the ordinary standard of care was met.
On appeal, plaintiffs argued that the district court erred by ruling that § 13-64-502(1) prohibited the relief they sought. CRS § 13-64-502(1) precludes damage or injury claims arising from genetic counseling and screening, subject to an exception for damage or injury that could have been prevented through the ordinary standard of care. The court of appeals construed the statute’s term “damage” to permit a claim for economic damages for a child’s medical expenses or other extraordinary expenses resulting from a health care professional’s alleged negligent genetic counseling or screening. Here, parents maintained that they could have prevented or avoided having children with DMD by alternative family planning options such as sterilization or adoption. But in dismissing the complaint, the district court concluded that the issue was not whether the births could have been prevented or avoided, but whether the DMD could have been prevented or avoided by health professionals exercising ordinary care. The district court thus erred by conflating the type of medical negligence (involving genetic counseling or screening) with the separately provable damage (the loss or harm caused by the allegedly substandard counseling or screening). Accordingly, the district court erred in concluding that the complaint was thus barred by § 13-64-502(1), and its exception did not apply because the DMD disorder could not have been prevented or avoided even if defendants had exercised an ordinary standard of care. Further, parents have stated valid medical negligence claims based on defendants’ alleged failure to provide accurate information to properly inform their family planning decision, which, if accepted as true, would entitle them to damages in the form of extraordinary medical expenses and other costs incurred from the negligence that could have been prevented or avoided because parents would not have conceived.
As to the children’s claims, the district court found and plaintiffs conceded that the children’s “loss of enjoyment of a natural life” claim is barred by Lininger v. Eisenbaum, 764 P.2d 1202, 1204 (Colo. 1988), because a “wrongful life” claim is not a cognizable injury.
Lastly, the court declined to rule on whether parents can recover the children’s post-majority economic damages, based on the early stage of the litigation.
The portion of the order dismissing parents’ claims was reversed, and those claims were reinstated. The dismissal of the children’s claims was affirmed. The case was remanded for further proceedings.