Prenatal testing gone awry: the birth of a conflict of ethics and liability.

In today's world of constantly evolving technology, a pregnant woman can know many details about the fetus inside of her before it is born. Although most of the prenatal testing that is commonly conducted in the United States is not brand-new technology, expansions in tort law for both wrongful death and medical malpractice have brought a new focus on prenatal testing and to the physicians and health care workers who are administering and interpreting the tests. The recent prevalence of medical malpractice claims has resulted in the claim of medical malpractice being used in different cases. This topic is a novel issue because there is a potential for recovery for fetal torts under the theory of malpractice where the same suit would be dismissed under the guise of a wrongful death claim. Even if medical malpractice claims are curtailed by legislation in the coming years, the "viability'' or "quickening"1 standards used by many states to block wrongful death claims of a fetus might have to be reevaluated as medical technology effectively moves forward the date when a fetus could be considered viable. Further, this topic is noteworthy from the standpoint of the actual process of genetic screening. The expansion of medical malpractice liability could extend to the medical technologists who perform the prenatal tests and to the genetic counselors who play important roles in relaying information and options to women carrying fetuses with indicated problems. Finally, the issue of medical malpractice with regard to faulty prenatal testing is complicated by the fact that the women choose to terminate their pregnancies. The choice to terminate might affect a court or jury's determination of potential liability on the physician or genetic counselors. The issue of a woman's decision to terminate her pregnancy based on an incorrect prenatal test interpretation was brought before the Georgia Court of Appeals in December, 2002. In Breyne v. Potter, the Georgia Court of Appeals recognized a cause of action for a forty-year-old woman who aborted her fetus based on her physician's recommendation.2 The woman's obstetrician told her on two separate occasions that the results of the test indicated that