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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Grafton No. 2004-708 SHERRY HALL & a. v. DARTMOUTH HITCHCOCK MEDICAL CENTER & a. Argued: January 11, 2006 Opinion Issued: April 25, 2006 McKean, Mattson and Latici, P.A., of Gilford (Edgar D. McKean, III and Steven M. Latici on the brief, and Mr. Latici orally), for the plaintiffs. Orr & Reno, P.A., of Concord (Ronald L. Snow and Roy S. McCandless on the brief, and Mr. Snow orally), for the defendants. DALIANIS, J. The plaintiffs, Sherry and Brad Hall, sued the defendants, Dartmouth Hitchcock Medical Center (DHMC), T.K. Mohandas, Ph.D. and Dartmouth College, alleging negligence resulting in the wrongful birth of their son who was born with a rare chromosomal disorder. The jury returned a verdict for the plaintiffs only on their claim against DHMC. On appeal, DHMC argues that the Superior Court (Houran, J.) erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and to set aside the verdict. We reverse.

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Background

The jury could reasonably have found the following facts. Sherry Hall learned she was pregnant in December 2000. In March 2001, after initial screening disclosed that the fetus carried an elevated risk for Trisomy 18, Wendy Wilson, Hall's primary prenatal care provider and a certified nurse midwife, referred her to DHMC for genetic counseling. A "trisomy" is a chromosomal disorder in which there is an extra copy of one or more chromosomes in a person's cell structure. On March 7, 2001, the plaintiffs met with Valerie Hani Lacroix, a certified genetic counselor at DHMC, and Emily Baker, M.D., a DHMC physician, board-certified in maternal-fetal medicine. At that point, Hall was between sixteen and seventeen weeks of gestation. An ultrasound conducted that day revealed a normal fetal morphology, with the exception of continually clenched hands -- a marker for Trisomy 18. As a result, Baker and Lacroix recommended an amniocentesis to provide further information about the condition of the fetus. Hall told Lacroix that she would terminate her pregnancy if the testing revealed any chromosome abnormalities. Baker withdrew amniotic fluid from Hall for analysis by Mohandas' cytogenetics laboratory at DHMC. Hall was aware that it would be at least two weeks before any results would be obtained. She told Lacroix on March 15, 2001, that she wanted to terminate her pregnancy, but Lacroix advised her to wait for the results of the amniocentesis before making a final decision. The cytogenetics laboratory processed the amniotic fluid and created a karyotype of the fetus's chromosomes. A "karyotype" is a digital image of each of the twenty-three pairs of chromosomes, segregated and aligned in numerical order. Each chromosome consists of two segments: a long arm (the "q" arm) and a short arm (the "p" arm). Mohandas, another Ph.D. cytogeneticist and a cytotechnician examined the chromosomes for structural abnormality, and then issued a report indicating "karyotype characteristics of a normal male." Trisomy 18 was ruled out. On March 20, 2001, Lacroix called the plaintiffs to deliver the results and said, "Congratulations, you have a normal, healthy baby boy." Lacroix explained that clenched hands were often indicative of a "simian crease," a single crease across the palm of the hand, which the plaintiffs understood to be of no genetic significance. As a result of the normal karyotype report, the plaintiffs were no longer "talking about termination." The plaintiffs returned to DHMC on March 27, 2001, for a follow-up ultrasound, which again revealed persistently clenched hands and, in addition, a possible "rocker bottom" foot, a congenital deformity in which the foot exhibits a convex, rocker-like shape. Lacroix reviewed the ultrasound and then, due to her elevated level of concern, issued an order to the laboratory to save any remaining amniotic fluid. She did not share this information with the

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plaintiffs. No member of the DHMC genetic counseling team contacted the plaintiffs regarding the results of the March 27, 2001 ultrasound. The plaintiffs also did not contact DHMC to obtain the results. The plaintiffs next heard from DHMC to schedule another ultrasound. Following the ultrasound on April 24, 2001, the plaintiffs met with Michelle Lauria, M.D., a DHMC physician, board-certified in maternal-fetal medicine. At the time of the meeting, Hall was between twenty-three and twenty-four weeks of gestation, and was still in her second trimester of pregnancy. DHMC would perform abortions only up to twenty-two weeks of gestation. Termination services were available on demand and without proof of medical necessity in Boston, however, up to twenty-four weeks of gestation. At that meeting, Lauria reported to the plaintiffs that, in addition to the continually clenched hands and possible rocker bottom foot, the fetus exhibited additional problems on the ultrasound, including lower micrognathia -- which is an unusually small lower jaw, a small umbilical vein varix, which is an outpouch of the umbilical vein, possible heart problems and "lemon head deformity," a convexity in the frontal portion of the head which can suggest an underlying brain abnormality. During that discussion, Lauria described a broad range of potential outcomes, ranging from a "very minor problem that perhaps would require some physical therapy or maybe some surgery, all the way to being just severely affected, dying at birth or being severely mentally retarded." Without discussing termination of the pregnancy, Hall immediately decided to transfer her medical care to providers in Boston. Nevertheless, Lauria recommended, and Hall agreed, that DHMC would test the remaining amniotic fluid for Smith-Lemli Opitz (SLO) disease, which, if positive, would account for the syndromic features seen on the ultrasound and indicate a significant probability of mental retardation or neonatal demise. On April 26, 2001, Hall had another ultrasound at Massachusetts General Hospital (MGH) in Boston. Thomas Shipp, M.D., an MGH physician, board-certified in maternal-fetal medicine, interpreted the ultrasound as showing clenched hands but did not detect the other problems reported at DHMC. On April 30, 2001, DHMC reported the results from the SLO test as negative. On May 2, 2001, Hall met with Louise Wilkins-Haug, M.D., the medical director of the Center for Fetal Medicine of Brigham & Women's Hospital in Boston and a board-certified geneticist. Ultrasound studies at Brigham & Women's Hospital showed persistently clenched hands and significant micrognathia but did not detect the other problems reported at DHMC. Hall elected to carry the fetus to term.

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On July 25, 2001, Brandon Hall was born at Brigham & Women's Hospital with multiple, severe congenital anomalies. A sample of blood was withdrawn from the umbilical cord and sent to the cytogenetics laboratory for analysis. The requisition form requested chromosomal analysis of the cord blood sample and "FISH" analysis, a molecular test using fluorescent probes singular to specific chromosomes. Since the laboratory was aware that the child was born with multiple congenital defects, Mary Sandstrom, Ph.D., a cytogeneticist at Brigham & Women's Hospital, acknowledged that the laboratory had a heightened degree of suspicion of chromosomal anomalies, and they were "looking carefully for something abnormal." Sandstrom initially conducted FISH analysis on uncultured cells, but that analysis produced no information concerning chromosomal anomalies. Sandstrom then conducted a microscopic analysis of the karyotype, and reported that Brandon's #15 chromosome was a normal variant, even though its "p" arm appeared to be somewhat longer than usual. Given the length of the variation, Sandstrom called for parental blood samples. Following chromosome analysis of cells cultured from Brad Hall's blood sample, Sandstrom concluded that he had a "balanced translocation" between his #9 and #15 chromosomes

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