Jurors award $28M in ‘wrongful birth’ suit

By John Petrick – Bergen Record

February 9. 2007

A jury in Paterson on Thursday awarded $28 million to a family suing medical professionals for “wrongful birth” after an unborn child’s life-threatening genetic defect was never detected.
Several experienced Passaic County legal observers said the verdict was among the highest they had ever seen in the county.

Much of the trial before state Superior Court Judge Anthony J. Graziano centered on paperwork errors and who was ultimately responsible for not testing plaintiff Wanda Tineo’s fetus for the rare family condition — myotubular myopathy — although she had specifically asked. Tineo’s two nephews died of the condition at birth and Tineo had decided she would terminate her pregnancy if her unborn child was found to have the same genetic disorder.

Wanda Tineo of Congers, N.Y., speaking by phone Thursday, said she is hopeful for Justin’s future, thanks to the money that will go toward his care.

“I love my son,” she said. “Believe me. He is my best buddy right now. But it kills me to see how he has to struggle every day to make his next achievement — from learning to move his arms and legs, to keeping his head up.”

Tineo added that although insurance has helped to cover Justin’s needs, she has “capped out” two different insurance policies at $1 million. “We’re on our third policy now, and who knows what will happen,” she said. “People don’t understand what it takes to take care of a handicapped child.”

Jurors held only some of the five named defendants responsible for what happened. Dr. Aldo Khoury, a high-risk-birth specialist with St. Joseph’s Regional Medical Center in Paterson; LabCorp of America, a major medical testing laboratory; and Dr. James Tepperberg, director of the cytogenetics department at LabCorp were all found by the jury to have deviated from accepted standards of medical practice. The panel found Khoury to be 50 percent negligent, LabCorp 40 percent and Tepperberg 10 percent.

Tineo said she considered terminating the pregnancy only because she feared the baby would die immediately, as her two nephews did. As for the doctors’ negligence, she said: “This cannot happen to another person.”

Doctors told her that tests showed the baby did not have the defect, and, relieved, she carried her baby to term. When he was born, however, all the signs of MTM were there.

Justin Tineo has had extremely limited muscle function and has required nursing care, ventilators and other treatment for much of his short life.

His mother testified that he has shown tremendous improvement since birth, though he still requires round-the-clock care and is unable to speak.

During the trial, Khoury said he ordered a test for MTM through LabCorp and thought the lab sent back results showing there was no problem. LabCorp maintained it was not apparent from the improper way Khoury filled out a test requisition form that he wanted a test for MTM.

The lab maintained it only ran tests to determine the child’s sex because it appeared that was all it was being asked to do.

Article originally ran in the Bergen Record.