Ande v. Rock

2. C.E.A. was born to Linda and Charles Ande on July13, 1993. There was then ongoing a cystic fibrosis research project which had begun in 1985. Philip Farrell and Norman Fost were the co-investigators. To test for the presence of factors indicative of cystic fibrosis, the study used excess blood that had been drawn from all newborns to conduct statutorily required tests for the presence of other congenital and metabolic disorders. The research protocol required that the parents of half of the newborns in the study were told if their child tested positive for cystic fibrosis. A nutritional plan was made available to them immediately, as it was the researchers' theory that treating the nutritional needs of children with cystic fibrosis before they became symptomatic would result in a less vigorous development of the disease with fewer impairments to overall health. The other half of the children who were tested were placed in the "blinded control" group. Their parents and their treating physicians were not told if they had tested positive for factors indicative of cystic fibrosis. C.E.A. was placed in the blinded group, and therefore, her parents and her primary physician, Dr. Amy Plumb, were not told that she had tested positive.

3. Prior to testing the blood of newborns for cystic fibrosis, a pamphlet was prepared that told about the different tests that were required to be completed on newborns' blood. It also told of the cystic fibrosis test that would be run as part of a research project. It described the dangers of cystic fibrosis and stated that cystic fibrosis was an inherited disorder. The pamphlet also arguably implied that positive test results would be reported to the infant's physician, and a phone number was listed for parents who wanted additional information about the test.3 There is no assertion that the Andes were asked for or gave specific, written consent to have the cystic fibrosis test run on C.E.A. or to have the results of that test go unreported to them.

4. Subsequent to birth, C.E.A. had difficulties thriving. On June 23, 1995, when C.E.A. was almost two years old, she was diagnosed with cystic fibrosis. At the time that the Andes learned that C.E.A. had cystic fibrosis, Linda Ande was pregnant with a second child. The Andes' second child, C.L.A., is also afflicted with cystic fibrosis.

5. In this lawsuit, the Andes' allegations may be summarized into the assertion that the defendants committed three wrongful acts that give rise to the Andes' various claims: (1) The cystic fibrosis test was run without their informed consent; (2) treatment was withheld from C.E.A. when the investigators had knowledge that nutritional treatment would reduce the severity of her cystic fibrosis; and (3) C.E.A.'s test results were withheld from them. They allege to have been harmed by these acts in two ways: (1) If they had been given the test results, they would have accepted treatment for C.E.A. to lessen the severity of the progression of her illness; and (2) if they had been given the test results, they would not have conceived C.L.A. They do not identify any harm they suffered from the alleged lack of informed consent to run the test in the first instance.

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¶22. Because we conclude that plaintiffs have made no showing of a physician-patient relationship with any remaining defendant, which relationship is necessary to support a medical malpractice claim, and that plaintiffs have made no showing of a clearly established state property right or a clearly established state or federal liberty interest that any named defendant's conduct violated, we affirm the judgment and order of the circuit court.

By the Court. Judgment and order affirmed in favor of Defendants.

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