Metropolitan News-Enterprise


Tuesday, September 3, 2002


Page 1


Sperm Bank Protected as ‘Health Care Provider,’ Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A sperm bank is a “health care provider,” entitled to special statutory protection from punitive damage claims, the Court of Appeal for this district ruled Friday.

Revisiting the tragic case of a child conceived by artificial insemination who suffers from a serious, genetically transmitted kidney disease, Div. Two held that Ronald and Diane Johnson cannot sue for punitive damages unless they comply with Code of Civil Procedure Sec. 425.13(a).

The statute, part of the 1987 Brown-Lockyer Civil Liability Reform Act, bars a claim for punitive damages against a “health care provider” except by way of an amended pleading with leave of court. Leave can only be granted if the judge finds that there is a “substantial probability” the plaintiff will prove the required malice, fraud, or oppression at trial.

The Johnsons are suing California Cryobank, Inc. and Drs. Cappy Rothman and Charles Sims, on behalf of themselves and their daughter Brittany. The sperm donor, they allege, is the only person who could have transmitted Autosomal Dominant Polycystic Kidney Disease, with which Brittany, now 13, was diagnosed in 1995.

The donor, whose name has never been disclosed on the public record, has a family history of ADPKS. He was compelled to give a deposition in the case after the Court of Appeal ruled two years ago that public policy precluded the enforcement of an agreement that his identity would not be disclosed under any circumstances.

The Johnsons claim the doctors knew that the donor had a family history of kidney disease, and should have realized that he was at risk of transferring kidney disease to a child.

They also claimed that Cryobank falsely represented that it had tested the donated sperm for infectious and genetically transferable diseases and that it was safe. But Los Angeles Superior Court Judge Linda Lefkowitz ruled in 1999 that there was insufficient evidence of fraud and granted a motion for summary adjudication.

Following the donor’s deposition, the Johnsons moved for leave to amend their complaint to seek punitive damages and for reconsideration of the summary adjudication of the fraud claim. Judge Mary Ann Murphy denied the motions, without prejudice to the plaintiff’s right to seek leave under Sec. 425.13(a) with respect to the medical malpractice claim.

Murphy also denied a motion to reconsider a ruling barring the child from recovering general damages or lost earnings for what the court termed “wrongful life.”

Justice Michael Nott, writing for the appellate panel Friday, said the trial judge’s application of Sec. 425.13(a) to a sperm bank was correct.

The statute, he noted, defines “health care provider” to include a licensed medical professional or “any clinic, health dispensary, or health facility” licensed by the state Department of Health Services. Cryobank is licensed by the department as a clinical laboratory and as a tissue bank.

A sperm bank is a “health dispensary,” Nott concluded. He cited a 1990 case in which a licensed blood bank was held to be a health dispensary, and thus a health care provider, for purposes of the Medical Injury Compensation Reform Act of 1975.

The decision is relevant because MICRA’s definition of “health care provider” is virtually identical to Brown-Lockyer’s, and the two statutes have related purposes, Nott explained.

The justice rejected the plaintiffs effort to distinguish the cases on the ground that the service offered by a sperm bank is not “inextricably identified with the health of humans” as a blood bank is.

Artificial insemination has a long history in the United States, and has become “an increasingly popular method of achieving parenthood,” Nott reasoned, with more than 30,000 children born in this country each year as a result. Professional organizations, with published medical and ethical guidelines, have been formed and legislative regulation established in response, the justice pointed out.

He also rejected the argument that the doctors were not acting as health care providers when they performed the genetic screening of the donor. While it is true that one need not be a licensed professional to do such a screening, he said, it was clear that the testing at Cryobank was part of an evaluation process that involved the performance of professional medical services by Sims and Rothman.

The justice went on to agree with the trial judge that Brittany cannot recover general damages or lost earnings. He cited Turpin v. Sortini (1982) 31 Cal.3d 220, in which the court first recognized the cause of action for “wrongful life”—negligence in the giving of medical advice or treatment, as a result of which a woman, who would otherwise have avoided or terminated pregnancy, carried to term a child who was born with serious health problems.

In Turpin, and in a later case, the court held that there can be no recovery of general damages or lost earnings by the child. The justices reasoned that it is impossible to rationally determine whether being born with an impairment constitutes tortious injury when weighed against the alternative of not being born at all, and if so, to calculate damages.

The same rationale applies to Brittany, Nott said, rejecting the argument that the defendants “caused” her abnormalities.

While the panel denied the plaintiffs relief, Nott did say, in an unpublished portion of the opinion, that the trial court has equitable powers to reconsider the summary adjudication of the fraud claim, based on newly discovered evidence obtained at the donor’s deposition.

The defendants, he said, may have deliberately withheld a page of the “Donor Profile” containing certain notations that may have—depending on who made them—led the trial judge to conclude that the fraud claim was viable. He suggested that further discovery on the issue would be appropriate.

Attorneys in the Court of Appeal were R. Richard Farnell and Margaret Kathryn Mass of Farnell & Norman for the Johnsons; Timothy R. Graves and Judith M. Tishkoff of Lewis, D’Amato, Brisbois & Bisgaard for Cryobank; Louis H. DeHaas, Gillian N. Pluma, and David J. Ozeran of La Follette, Johnson, De Haas, Fessler & Ames for Rothman; and Mark B. Connely and Vangi M. Johnson of Bonne, Bridges, Mueller, O’Keefe & Nichols for Sims.

The case is Johnson v. Superior Court, B155896.


Copyright 2002, Metropolitan News Company