A couple had their first child in May 1998. The boy exhibited developmental delays and had chronic problems with eating and weight gain. In August 1999, he collapsed with uncontrollable seizures. He was placed in a drug-induced coma. A month later, when he emerged from the coma, he was neurologically compromised. He recovered somewhat but then regressed, experiencing another seizure episode. He died in January 2000. MRI of his brain showed a lesion on his thalamus.
The couple’s second child was born in April 2002. This child also had delays and developed seizures, was placed in a coma, and emerged neurologically impaired. She too was found to have an abnormality in her thalamus. She died in July 2004.
The couple was referred to Dr. S, a geneticist. They consulted Dr. S both before and after the second child’s death. After their daughter’s death, the couple asked Dr. S whether it was possible to have biological children who would not have the same problems. Dr. S told them that he could not identify the specific gene causing the defect but advised that it would be safe to conceive a child with a donor egg from the general population and the husband’s sperm through in vitro fertilization.
Dr. S allegedly advised the couple that a child conceived this way would have essentially the same risk for the unidentified disease as anyone in the general population. The couple asked in writing if it would be safer to use both a donor sperm and a donor egg to further reduce the risk, and Dr. S replied by letter that the difference was “negligible.”
In June 2007, the couple had a child who was conceived with a donated egg and the husband’s sperm. This child suffered the same fate as the two previous children, dying in September 2008. MRI of the child’s brain, like the others, showed an abnormality of the thalamus. The child was diagnosed with Alpers syndrome postmortem.
The plaintiffs claimed that the chances of having a child with Alpers syndrome are about 1:200,000 in the general population, but that the chances if one parent is a known carrier are about 1:1,000. The plaintiffs claimed that if they had known of this risk, they would have used a donor egg and donor sperm to conceive a child or would have adopted. The plaintiffs alleged negligence by Dr. S in failing to give them this information.
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