THE LAW * QUESTIONS JURIDIQUES
to AIDS cour case coul lead to AIDS
court
higher
case
costs,
could lead
spokesman warns
CMA
Elizabeth Godley octors may feel over- known that semen could transmit whelmed by a daily del- HIV. Ter Neuzen was infected uge of medical news and early in 1985, when knowledge information, but a recent British Columbia case indicated that this excuse will hold little weight in court. The case also showed that physicians who fail to keep on top of new developments may find themselves on the vulnerable side of a malpractice suit. This is what happened to Dr. Gerald Korn, 67, a respected and well-established Vancouver gynecologist. Last November, a Supreme Court jury in Victoria found him negligent and ordered him to pay $883 800 in compent It, i sation to Kobe ter Neuzen, a 46-year-old nurse who lives in Saanich, a small community near Victoria. Ter Neuzen was infected .. # with HIV after treatment at Korn's clinic, where she was artificially inseminated 35 times be:4i tween 1981 and 1985. 1 .' Korn's lawyer, Chris Hinkson, has already advised that the decision will be appealed; that hearing could take place as early as September. Donald Casswell, associate dean of law at the University of Victoria and a medicolegal expert, says the lawsuit, thought to be the first of its kind in Canada, hinged on whether Korn should have D
i
about AIDS was still limited. "I think the case does say that doctors do have to keep up to date Vancouver Sun
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Elizabeth Godley is a freelance writer living in Vancouver. JANUARY 15, 1992
Ter Neuzen: infected with HIV during 35th attempt at artificial insemination CAN MED ASSOC J 1992; 146 (2)
227
"If the decision stands, anybody who has anything
like a bad
"If the decision stands, anybody who has anything like a bad response to a
medical action will be able to consider suing." -
with information," said Casswell. "The defence [had] argued that gynecologists in Vancouver would not reasonably be expected to be aware of an article in the New England Journal ofMedicine." (A witness for the plaintiff, Dr. Laurene Mascola of Los Angeles, testified that she coauthored a letter that was published in October 1983 in that journal [Mascola L, Colwell BY, Couch JA: Should sperm donors be screened for sexually transmitted diseases? N Engl J Med 1983; 309: 1058]. It raised the possibility that HIV could be transmitted during artificial insemination.) Casswell, who applauded the jury's decision, thinks the verdict "will perhaps give courage to other people who are HIV infected and encourage them to come forward." But Doug Geekie, the CMA's director of communications and government relations, said the de-
"The courts apply higher and higher standards and doctors have to become more and more careful." -
Dr. Gur Singh
JANUARY 15, 1992
cision sets a troublesome precedent. "If it stands, anybody who has anything like a bad response to a medical action will be able to consider suing," he said. Geekie said doctors already find it difficult to keep up with new developments in medicine, despite attempts by the CMA and dozens of other professional bodies to disseminate information. "There's an avalanche of new facts coming out all the time and the task of trying to keep abreast of it is quite impossible. That's what doctors are concerned about." Geekie also suggested that the cost of malpractice insurance might rise because of the ter Neuzen settlement. "That $883 000 is going to come out of CMPA [Canadian Medical Protective Association] members' pockets. There's no question that [fees] will go up." Dr. Gur Singh, president of
Doug Geekie
the British Columbia Medical Association, agreed that doctors are under enormous pressure to keep up to date on new research findings, and he said this forces them to be ultracautious. "The courts apply higher and higher standards and doctors have to become more and more careful and order more tests, and the costs go up and up," Singh said. He also noted that until recently there were no Canadian guidelines concerning the operation of artificial-insemination clinics. Now, said Singh, regulations require sperm to be frozen for 6 months. The donor is tested for HIV at the beginning and at the end of the 6-month period, he said, and this provides a safeguard against transmittal of the disease. Dr. Stuart Lee, the CMPA's secretary-treasurer, would not comment on the ter Neuzen case because it is under appeal. Ter Neuzen's story is a sad one. By February 1981 she had decided the chances of meeting the man of her dreams were slim - she was 36 - but she wanted to have a baby. After considering her options - she even put an ad in the personals column of the local paper, seeking a man who would father a child responsibly - she decided artificial insemination was the safest route to pregnancy. On the advice of her general practitioner, she embarked on an artificial-insemination program with Korn, whose practice was the largest of its kind in British Columbia. By January 1985 ter CAN MED ASSOC J 1992; 146 (2)
229
"ItiktecsIossyta
otr
ohv
oke
pt
"I think the case does say that doctors do have to keep up to date with information." Donald Casswell
Neuzen had visited Korn's Vancouver office 34 times, paying between $54 and $60 for each insemination. (The sum covered the sperm donor's fee and an administrative charge.) She did not become pregnant. Shortly before her 40th birthday, she decided to visit Korn's clinic one last time. Unfortunately, the semen she received that day was from a donor, Eric Kyle, who would shortly disclose to Korn that he was bisexual; his semen apparently transmitted HIV to ter Neuzen. He also was named as a defendant in her suit, but his whereabouts are unknown. Soon after her last treatment, ter Neuzen, employed at the time as a psychiatric nurse at Victoria's Royal Jubilee Hospital, took 2 weeks off work to recover from what she thought was a bout of flu. The illness, which was accompanied by a high fever and a pins-and-needle rash, was out of character for ter Neuzen, who had rarely taken sick leave during her 17 years at the hospital. Ten months later, in October 1985, she received a letter from Korn explaining that one of his clinic's semen donors had tested positive for HIV. That December she learned that she had tested positive for antibodies to the same virus. In 1986, as her health gradually worsened, ter Neuzen hired a lawyer, Sandra Harper, and launched a negligence suit that named Korn and Kyle. She claimed the doctor was negligent -
For prescribing information see page 273
and had caused breach of contract by not screening donors properly and by failing to warn patients of the risk of HIV infection. During a 2-week trial that ended in November, Harper argued that Korn should have known of the link between semen and HIV at the time of ter Neuzen's last treatment, on Jan. 21, 1985. She told the jury that Korn "didn't keep up with the times" and suggested it was his duty "to take it upon himself to look outside his narrow area." Mascola testified that her letter had suggested that AIDS could be transmitted by artificial insemination. Korn testified that he had not seen the letter, nor had it been brought to his attention. Another of Harper's witnesses, Australian immunologist Graeme Stewart, told the court that artificial insemination clinics in his country were shut down in November 1984 after four children conceived through artificial insemination were found to be infected with HIV. Stewart and colleagues published an article in Lancet in September 1985 (2: 581-585) that alerted physicians to the first documented cases of HIV infection spread via sperm. Korn testified that he had been aware of Stewart's article and had asked his 28 sperm donors to be tested for HIV. He closed his clinic until test results were known. At that time, blood had to be sent to Ottawa for testing. Korn said he telephoned
Kyle, the one donor to have a positive test result, in August 1985 and asked if he was homosexual; Kyle admitted that he was bisexual. Korn wrote to the 38 women who had received Kyle's sperm, and two subsequently tested positive. One was ter Neuzen; the other woman has not been identified. Korn told the court that by early 1985 he knew HIV could be transmitted heterosexually but that he "didn't make the connection" that it could be transmitted by sperm. He also testified that he treated 1600 women in his artificialinsemination program, and more than 900 conceived. He said he interviewed sperm donors "across the table" and asked questions about their family histories of disease, mental illness, allergies, heart conditions, skin and nerve disorders. Korn said he asked donors if they were homosexual. None was, although one turned out to be bisexual. He also told the court that most of his knowledge of AIDS was acquired by reading Time magazine. After 10 hours' deliberation, the jury awarded ter Neuzen $460 000 for pain and suffering, loss of enjoyment of life and reduced life expectancy. She also received $3800 for out-of-pocket expenses before the trial, $65 000 to replace lost income, $280 000 for future lost income, and $75 000 for the cost of future care. u CAN MED ASSOC J 1992; 146 (2)
231
to AIDS cour case coul lead to AIDS
court
higher
case
costs,
could lead
spokesman warns
CMA
Elizabeth Godley octors may feel over- known that semen could transmit whelmed by a daily del- HIV. Ter Neuzen was infected uge of medical news and early in 1985, when knowledge information, but a recent British Columbia case indicated that this excuse will hold little weight in court. The case also showed that physicians who fail to keep on top of new developments may find themselves on the vulnerable side of a malpractice suit. This is what happened to Dr. Gerald Korn, 67, a respected and well-established Vancouver gynecologist. Last November, a Supreme Court jury in Victoria found him negligent and ordered him to pay $883 800 in compent It, i sation to Kobe ter Neuzen, a 46-year-old nurse who lives in Saanich, a small community near Victoria. Ter Neuzen was infected .. # with HIV after treatment at Korn's clinic, where she was artificially inseminated 35 times be:4i tween 1981 and 1985. 1 .' Korn's lawyer, Chris Hinkson, has already advised that the decision will be appealed; that hearing could take place as early as September. Donald Casswell, associate dean of law at the University of Victoria and a medicolegal expert, says the lawsuit, thought to be the first of its kind in Canada, hinged on whether Korn should have D
i
about AIDS was still limited. "I think the case does say that doctors do have to keep up to date Vancouver Sun
f
L_
i_
1
1
Elizabeth Godley is a freelance writer living in Vancouver. JANUARY 15, 1992
Ter Neuzen: infected with HIV during 35th attempt at artificial insemination CAN MED ASSOC J 1992; 146 (2)
227
"If the decision stands, anybody who has anything
like a bad
"If the decision stands, anybody who has anything like a bad response to a
medical action will be able to consider suing." -
with information," said Casswell. "The defence [had] argued that gynecologists in Vancouver would not reasonably be expected to be aware of an article in the New England Journal ofMedicine." (A witness for the plaintiff, Dr. Laurene Mascola of Los Angeles, testified that she coauthored a letter that was published in October 1983 in that journal [Mascola L, Colwell BY, Couch JA: Should sperm donors be screened for sexually transmitted diseases? N Engl J Med 1983; 309: 1058]. It raised the possibility that HIV could be transmitted during artificial insemination.) Casswell, who applauded the jury's decision, thinks the verdict "will perhaps give courage to other people who are HIV infected and encourage them to come forward." But Doug Geekie, the CMA's director of communications and government relations, said the de-
"The courts apply higher and higher standards and doctors have to become more and more careful." -
Dr. Gur Singh
JANUARY 15, 1992
cision sets a troublesome precedent. "If it stands, anybody who has anything like a bad response to a medical action will be able to consider suing," he said. Geekie said doctors already find it difficult to keep up with new developments in medicine, despite attempts by the CMA and dozens of other professional bodies to disseminate information. "There's an avalanche of new facts coming out all the time and the task of trying to keep abreast of it is quite impossible. That's what doctors are concerned about." Geekie also suggested that the cost of malpractice insurance might rise because of the ter Neuzen settlement. "That $883 000 is going to come out of CMPA [Canadian Medical Protective Association] members' pockets. There's no question that [fees] will go up." Dr. Gur Singh, president of
Doug Geekie
the British Columbia Medical Association, agreed that doctors are under enormous pressure to keep up to date on new research findings, and he said this forces them to be ultracautious. "The courts apply higher and higher standards and doctors have to become more and more careful and order more tests, and the costs go up and up," Singh said. He also noted that until recently there were no Canadian guidelines concerning the operation of artificial-insemination clinics. Now, said Singh, regulations require sperm to be frozen for 6 months. The donor is tested for HIV at the beginning and at the end of the 6-month period, he said, and this provides a safeguard against transmittal of the disease. Dr. Stuart Lee, the CMPA's secretary-treasurer, would not comment on the ter Neuzen case because it is under appeal. Ter Neuzen's story is a sad one. By February 1981 she had decided the chances of meeting the man of her dreams were slim - she was 36 - but she wanted to have a baby. After considering her options - she even put an ad in the personals column of the local paper, seeking a man who would father a child responsibly - she decided artificial insemination was the safest route to pregnancy. On the advice of her general practitioner, she embarked on an artificial-insemination program with Korn, whose practice was the largest of its kind in British Columbia. By January 1985 ter CAN MED ASSOC J 1992; 146 (2)
229
"ItiktecsIossyta
otr
ohv
oke
pt
"I think the case does say that doctors do have to keep up to date with information." Donald Casswell
Neuzen had visited Korn's Vancouver office 34 times, paying between $54 and $60 for each insemination. (The sum covered the sperm donor's fee and an administrative charge.) She did not become pregnant. Shortly before her 40th birthday, she decided to visit Korn's clinic one last time. Unfortunately, the semen she received that day was from a donor, Eric Kyle, who would shortly disclose to Korn that he was bisexual; his semen apparently transmitted HIV to ter Neuzen. He also was named as a defendant in her suit, but his whereabouts are unknown. Soon after her last treatment, ter Neuzen, employed at the time as a psychiatric nurse at Victoria's Royal Jubilee Hospital, took 2 weeks off work to recover from what she thought was a bout of flu. The illness, which was accompanied by a high fever and a pins-and-needle rash, was out of character for ter Neuzen, who had rarely taken sick leave during her 17 years at the hospital. Ten months later, in October 1985, she received a letter from Korn explaining that one of his clinic's semen donors had tested positive for HIV. That December she learned that she had tested positive for antibodies to the same virus. In 1986, as her health gradually worsened, ter Neuzen hired a lawyer, Sandra Harper, and launched a negligence suit that named Korn and Kyle. She claimed the doctor was negligent -
For prescribing information see page 273
and had caused breach of contract by not screening donors properly and by failing to warn patients of the risk of HIV infection. During a 2-week trial that ended in November, Harper argued that Korn should have known of the link between semen and HIV at the time of ter Neuzen's last treatment, on Jan. 21, 1985. She told the jury that Korn "didn't keep up with the times" and suggested it was his duty "to take it upon himself to look outside his narrow area." Mascola testified that her letter had suggested that AIDS could be transmitted by artificial insemination. Korn testified that he had not seen the letter, nor had it been brought to his attention. Another of Harper's witnesses, Australian immunologist Graeme Stewart, told the court that artificial insemination clinics in his country were shut down in November 1984 after four children conceived through artificial insemination were found to be infected with HIV. Stewart and colleagues published an article in Lancet in September 1985 (2: 581-585) that alerted physicians to the first documented cases of HIV infection spread via sperm. Korn testified that he had been aware of Stewart's article and had asked his 28 sperm donors to be tested for HIV. He closed his clinic until test results were known. At that time, blood had to be sent to Ottawa for testing. Korn said he telephoned
Kyle, the one donor to have a positive test result, in August 1985 and asked if he was homosexual; Kyle admitted that he was bisexual. Korn wrote to the 38 women who had received Kyle's sperm, and two subsequently tested positive. One was ter Neuzen; the other woman has not been identified. Korn told the court that by early 1985 he knew HIV could be transmitted heterosexually but that he "didn't make the connection" that it could be transmitted by sperm. He also testified that he treated 1600 women in his artificialinsemination program, and more than 900 conceived. He said he interviewed sperm donors "across the table" and asked questions about their family histories of disease, mental illness, allergies, heart conditions, skin and nerve disorders. Korn said he asked donors if they were homosexual. None was, although one turned out to be bisexual. He also told the court that most of his knowledge of AIDS was acquired by reading Time magazine. After 10 hours' deliberation, the jury awarded ter Neuzen $460 000 for pain and suffering, loss of enjoyment of life and reduced life expectancy. She also received $3800 for out-of-pocket expenses before the trial, $65 000 to replace lost income, $280 000 for future lost income, and $75 000 for the cost of future care. u CAN MED ASSOC J 1992; 146 (2)
231
