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Dowling v. A.R.T. Institute Of Washington, Inc.

United States District Court, D. Maryland

March 6, 2019

JONATHAN E. DOWLING, et al. Plaintiffs,
A.R.T. INSTITUTE OF WASHINGTON, INC., et al. Defendants.



         This case concerns the heartbreak of infertility compounded by the suffering of an infant born with a severe congenital disorder. In filing this suit, Plaintiff Jonathan Dowling lays bare his family's difficult journey. Dowling asserts that the embryology practice where Dowling and his wife sought assistance caused the couple unwittingly to agree to a high-tech in-vitro fertilization procedure which, in their view, led to their infant son's severe and ultimately fatal birth defects. Before this opinion unfolds, it is important to recognize the depth of the Dowlings' suffering and loss.

         Now the Court must review the Complaint for legal sufficiency. Defendants A.R.T. Institute of Washington, Inc. and Erika Cullingford (collectively, “Defendants”) have moved to dismiss the Complaint or in the alternative for summary judgment. ECF No. 7. Dowling has opposed the motion and moves for partial summary judgment in his favor. ECF No. 21. The Court held a hearing on February 25, 2019. For the following reasons, the Court denies Defendants' motion and grants Dowling's motion in part.

         I. Background

         Jonathan Dowling (“Dowling”) is a Lieutenant Commander in the Judge Advocate General's Corps of the United States Navy. ECF No. 1 at 2. For quite some time, he and his wife Kathryn had wanted a baby, and tried a variety of fertility treatments to no avail. Id. ¶ 18. At some point, the couple chose to pursue in vitro fertilization (“IVF”) at the Walter Reed National Military Medical Center (“WRNMMC”) in Bethesda, Maryland. Id. WRNMMC contracted with the A.R.T. Institute of Washington, Inc (“A.R.T.”) to provide embryology services to military servicemembers and their families. Id. ¶¶ 14, 19-20.

         In pursuit of IVF, the Dowlings met with medical staff from WRNMMC and A.R.T. on February 21, 2012. Id. ¶ 36. At this meeting, the Dowlings signed a written consent form pertaining to IVF generally and to a specific type of embryological service called intracytoplasmic sperm injection (“ICSI”). Id. ¶ 37. ICSI is a procedure where trained medical personnel identify from the male partner's sperm sample a single sperm that provides the best opportunity for fertilization, and then injects that single sperm via a pipette directly into the egg. ECF No. 1-6 at 6. ICSI is often used when “the sperm may not be judged adequate to achieve fertilization using conventional insemination (putting the eggs and sperm closely together).” Id.

         At the initial meeting with the Dowlings, A.R.T. presented the ICSI consent form for their review and signatures. The form memorialized that the Dowlings understood how ICSI worked, in that prior to an IVF-ICSI cycle, Dowling would provide a semen sample “for analysis by the andrology laboratory.” Id. at 1. If the sample was “not judged adequate to achieve fertilization using conventional insemination” or “where fertilization has failed or was substantially reduced in prior IVF cycles, ” ICSI would offer a better chance of conceiving. Id. at 6.

         As part of the ICSI consent form, the Dowlings were apprised of several risks and precautions. Specifically, under a prominent heading in boldface type which read “We understand that ICSI may involve the following risks or disadvantages, ” the consent form expressly warned that “[t]his technology is relatively new (started 1992), and there may be unknown risks to the baby or mother.” ECF No. 1-6 at 6-7. The consent further warned that “[w]hile there seems to be no higher overall incidence of congenital malformations in children born after ICSI . . . the risk cannot be totally ruled out.” Id. at 7. The consent form confirmed that the Dowlings knew and understood all the terms: “We hereby attest that we have read the above referenced consent forms, or that they have been read to us, so that we understand it completely. We further attest that any and all questions of ours regarding all procedures have been answered to our complete satisfaction.” Id. at 12.

         On March 7, 2012, Dowling provided a semen sample for evaluation to A.R.T. junior embryologist Erika Cullingford (“Cullingford”). ECF No. 1 ¶¶ 28, 47. Dowling noted on the accompanying Semen Analysis Form that he had begun taking paroxetine, commonly known as Paxil, that same day. Id. ¶¶ 46-47. Cullingford and another A.R.T. employee analyzed his sample and found the sperm's “pre-wash motility” to be 39%, with the “normal value” noted as >40%. Id. ¶ 47; ECF No. 1-9. The form also noted a finding of “ICSI Low initial motility.” ECF No. 1-9.

         The Dowlings then began their IVF procedure, which included Kathryn Dowling taking hormone stimulants to promote maturation of several eggs at once. Prior to beginning this phase of the IVF process, A.R.T. invoiced the Dowlings for their upcoming IVF cycle, which included a separate charge for ICSI. ECF No. 1 ¶¶ 31, 48. When Kathryn Dowling asked A.R.T. about the charge for ICSI, she was told that the “low initial motility” finding from the March 7, 2012 sperm sample warranted the use of ICSI. Id. ¶ 48. The Dowlings paid the invoice in full. Id. ¶ 49.

         On July 6, 2012, the Dowlings returned to WRNMMC for the clinic to retrieve Kathryn Dowling's eggs and collect another semen sample from Dowling for fertilization via ICSI. Id. ¶ 53. Before this day, Dowling had researched the effects of Paxil on conception. Specifically, Dowling had read that using Paxil may lead to increased DNA fragmentation in sperm that could complicate pregnancy and risk abnormalities in the fetus. Id. ¶ 51. Dowling shared these concerns with the WRNMMC medical providers who responded that the risk of Dowling's recent Paxil use was “negligible” in terms of fertilization. Id. ¶¶ 51, 54. Dowling again filled out the A.R.T. Semen Analysis Form, noting that he was taking Paxil and that “Doctor did not provide information on impacts on sperm. Discovered study last night on internet.” Id. ¶ 55. According to the study Dowling had found, the likely DNA fragmentation in his sperm in July 2012 was 42%, well above the 30% threshold for abnormal DNA fragmentation. Id. ¶ 70. In contrast, when Dowling underwent semen analysis in February 2013, after discontinuing Paxil in October 2012, his DNA fragmentation level was 26%. Id. ¶ 69. In other words, an abnormally high percentage of the sperm sample used for ICSI included damaged sperm attributable to using Paxil.

         The Dowlings proceeded with egg retrieval and fertilization. Dowling provided a sperm sample which Cullingford analyzed as having a “prewash motility of 48%” and a “prewash progression of 40%.” Id. ¶ 56. Cullingford noted on the Semen Analysis Form that “[t]he sample that has been prepared is of ICSI standards . . . due to [l]ow initial motility.” Id. Dowling reviewed this form prior to agreement to use ICSI for fertilization. He understood Cullingford's note to mean that the sample he had given that day (July 6, 2012) had low motility. Consequently, he and his wife consented to the ICSI procedure. Id. ¶ 57.

         A.R.T. selected twelve individual sperm cells to fertilize twelve eggs retrieved from Kathryn Dowling. Id. ¶ 58. On July 11, 2012, an embryo was transferred to Kathryn Dowling. Id. ¶ 59. Several days later, the Dowlings learned they were pregnant. Id. ¶ 61.

         In Kathryn's six month of pregnancy, doctors diagnosed the fetus with a rare disorder called pentalogy of Cantrell. Id. ¶ 63. The disorder spans a broad spectrum of severity and may involve major defects to five areas of the body: the sternum, heart, pericardium (heart lining), diaphragm, and abdominal wall. Id.; ECF No. 1-11 at 3. Although the exact prevalence is not fully known, an estimated 5.5 of every 1 million babies suffer from pentalogy of Cantrell of varying severity. ECF No. 1-11 at 3.

         When J.A.D. was born, doctors determined that J.A.D. suffered from a particularly severe case of the disorder. ECF No. 1 ¶ 73; ECF No. 1-11 at 4-5. Among other life-saving measures, J.A.D. underwent open-heart surgery, chest closure surgery, and three catheter procedures. ECF No. 1 ¶ 76. In total, J.A.D. spent roughly half his young life in the hospital. Id. On October 26, 2013, J.A.D. died as a result, at home and in his parents' arms. Id. ¶ 78.

         After losing J.A.D., the Dowlings filed suit in the United States District Court for the District of Washington on behalf of themselves and J.A.D.'s estate against the WRNMMC physicians and Washington state military medical personnel pursuant to the Federal Tort Claims Act (“FTCA”).[1] ECF No. 1-12; ECF No. 1 ¶ 87 (“Washington case”). In the Washington case, the Dowlings asserted claims for lack of informed consent, wrongful death and survivorship based on WRNMMC's participation in the consent and fertilization process. The Washington Complaint also included medical negligence claims against the military physicians who failed to diagnose J.A.D.'s pentalogy of Cantrell in a timely manner. The Washington Complaint, however, did not name A.R.T. or Cullingford as defendants, but rather described them as “independent contractor[s]” that provided embryology services to the military medical personnel at WRNMMC. ECF No. 7-8 ¶ 15. The Washington Complaint also alleged that WRNMMC and A.R.T. medical personnel played various roles in obtaining consent from the Dowlings to undergo IVF-ICSI. See, e.g., id. ¶¶ 15-17 (describing an IVF orientation administered by A.R.T. where the Dowlings signed consent forms); see also Id. ¶ 42 (Dowling signed consent forms for semen collection and analysis for IVF/ICSI on July 6, 2012 wherein he noted concern about Paxil damaging sperm).

         In June of 2016, the Dowlings executed a settlement and release with the United States (the “Settlement Agreement”). ECF No. 7-2. The Settlement Agreement expressly states that

The parties [the Dowlings and the United States] do hereby agree to settle and compromise each and every claim of any kind, against all persons, in their individual or official capacities, and against the United States of America and all of its agencies, whether known or unknown, arising directly or indirectly, from the acts or omissions that gave rise to the above-captioned action under the terms and conditions set forth in this Stipulation for Compromise Settlement and Release.

Id. ¶ 1 (emphasis added). The Settlement Agreement further provides that

The United States of America agrees to pay the sum of [REDACTED] . . . which sum shall be in full settlement and satisfaction of any and all claims, demands, rights and causes of action of whatsoever kind and nature, arising from, and by reason of, any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting, and to result, from the subject matter of this settlement, including any claims for wrongful death, for which Plaintiffs or their guardians, heirs, executors, administrators, or assigns, and each of them, now have or may have hereafter acquire against the United States of America, its agents, servants and employees.

Id. ¶ 2 (emphasis added). The agreement finally contemplates possible future litigation against parties not involved in the Washington case, stating

Plaintiffs . . . further agree to reimburse, indemnify and hold harmless the United States of America, its agents, servants, and employees from and against any and all such causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation or the prosecution of claims by the plaintiff . . . against any third party or against the United States, including claims for wrongful death.

Id. ¶ 3 (emphasis added). The United States and Dowling consummated this agreement, and the Washington case was dismissed. ECF No. 7-9.

         On January 12, 2018, Dowling, individually and as the personal representative of the estate of J.A.D. and to the use of Kathryn Dowling, brought suit against A.R.T. and Cullingford asserting largely, but not wholly, similar claims to those raised in the Washington case. ECF No. 1. Dowling brings suit on his own behalf for failure to provide Dowling adequate informed consent, as well as wrongful death and survivorship claims premised on the same consent failures. The Complaint also pleads negligent misrepresentation against Cullingford for misreporting the results of Dowling's semen analysis and constructive fraud as to both Defendants. Dowling further asks this Court to declare that the Settlement Agreement does not completely bar this suit proceeding against A.R.T. and Cullingford.

         Defendants contend that dismissal of the Complaint is warranted on several grounds, to include that the Settlement Agreement reaches these claims and parties; that the Washington doctors' negligence in failing to diagnose J.A.D.'s disease sooner constitutes an intervening cause that bars relief; and that the informed consent claims must fail as a matter of law. ECF No. 7. Dowling has cross-moved for partial summary judgment regarding whether the FTCA bars this suit. ECF No. 21.

         II. Standard of Review

          Although the parties urge this Court to review this case under a summary judgment standard, the Court notes that the Complaint incorporates by reference the documents necessary for the Court to treat the Defendants motion as one to dismiss under Rule 12(b)(6). Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). Because no formal discovery has taken place, the Court reviews Defendants' motion under Rule 12(b)(6).

         A motion to dismiss is designed to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Court accepts “the well-pled allegations of the complaint as true, ” and construes all facts and reasonable inferences most favorably to the plaintiff. See Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). To survive a motion to dismiss, a complaint's factual allegations “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         III. Analysis

         A. The FTCA Settlement

         Defendants contend that Dowling cannot pursue claims against them because the Settlement Agreement constitutes full satisfaction for all claims against all parties arising out of the informed consent procedure for ICSI, and that to allow the claim to proceed would permit the Dowlings to double recover. For the following reasons, the Court disagrees that the Settlement Agreement bars suit.

         An FTCA action is brought against the United States for claims involving government actors who would otherwise enjoy immunity from suit. 28 U.S.C. § 1346; see also United States v. Orleans, 425 U.S. 807, 813 (1976) (The FTCA constitutes a “limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.”), abrogated on other grounds by United States v. Olson, 546 U.S. 43 (2005). Most relevant to this case, “[t]he FTCA explicitly excludes independent contractors from its scope.” In re KBR, Inc., 736 F.Supp.2d 954, 963-64 (D. Md. 2010), modified on reh'g sub nom. In re KBR, Inc., Burn Pit Litig., 925 F.Supp.2d 752 (D. Md. 2013), vacated on other grounds and remanded, 744 F.3d 326 (4th Cir. 2014); see also Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996) (affirming the dismissal of FTCA claims against physicians who were independent contractors on an Air Force base because “Congress has not waived the sovereign immunity of the United States for injuries resulting from the actions of independent contractors performing work for the government”). Thus, ...

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