Archives for August 2016

SOME OFF THE CUFF OBSERVATIONS OF ZIKA VIRUS ADDENDA

There is no doubt that the Zika virus is a health crisis with a potential for horrific results. As the epidemiological puzzle has not been fully fleshed out, more questions remain then have been answered. For better or worse we also witness heightened media attention and its predilection for catering to hysteria and histrionics.

Histrionics aside, the tragedy visited upon an effected family will be immeasurable. The financial impact on a family for lifelong care will be catastrophic. It is only a matter of time before we see a lawsuit against a person or persons who may have prevented or minimized the damage to a child suffering Zika mediated microcephaly. If you do not believe there is an incentive to file against an offending party for a brain-damaged infant, I caution you with some headlines from 2014.

Georgia Jury Awards $8.4 Million In Action Brought On Behalf Of Infant Who Suffered Hypoxic Ischemic Brain Injury At Birth

Ohio Jury Awards $14.5 Million In Action Arising From Preterm Labor And Baby’s Resulting Brain Hemorrhage

The awareness of the virus, damage and associated costs has, within the ART community, prompted many responses. One, which we address here, is the so-called Zika Virus Addenda. When I look at these Addenda I see some of the best drafting I have been exposed to in years. I would, however, say that while the intention behind the drafting is noble, it is misplaced and will lead to more problems than it solves.

DRAFTING ATTORNEY CENTRIC VIEW

When we speak about the language contained within the Addenda, we fall into an argument of what is, in fact, appropriate direction. Ignoring the words themselves, we look at the aspirational nature of the words. Is the drafter providing us a “Standard of Care” or a “Best Practices” perspective?

“Standard of care” is a legal term with a clear definition. It is the level at which the ordinary, prudent professional having the same training would practice under the same or similar circumstances. Standard of care is not perfection or average. The standard of care is actually a pretty low threshold. The standard of care is what most reasonable professionals under similar circumstances do.  It is not an aspirational standard as the professional is permitted to be wrong or even make an error. The professional is not, however, permitted to be negligent.

“Best practice” refers to professional practices and procedures arising from the evidence discovered through academic research. A “best practices” approach applies the most recent, relevant, and helpful interventions to real world applications. Best practices are an aspirational approach to delivering professional services.

Many experts will opine that “standard of care” means, “best practice.” So any care that deviates from best practice, they contend, is a prima facie failure to meet or exceed the standard of care (and is therefore, malpractice). While this is generally a view within the university or research setting, it is specifically the interpretation that plaintiff experts will proffer in a malpractice trial.

A significant problem arises when our colleagues don’t articulate the difference between the standard of care and “best practices.” This is unfortunate because when we conflate “standard of care” with “best practices,” the perception becomes reality.  It’s important to articulate the difference.

In the reality that is a Zika addenda, a best practices approach to the behaviors demanded of a Surrogate is aspirational and, therefore, unrealistic.

SURROGATE CENTRIC VIEW

As stated earlier, Zika Addenda are well written. Perhaps, however, too well written. They are dense with medical language and terminology. They dictate patterns of behavior which are unrealistic in the real world and which go well beyond anything published by the Centers for Disease Control. They are, for the most part, aspirational and follow a best practices approach to managing risk.

In fact, as the vectors for disease transmission are not all known and are not subject to finite epidemiological pathways, any listing of prohibited behaviors or permitted actions cannot be complete. The Addenda create an illusion that following the aspirational language will prevent a Zika infection. As a practical matter then, Zika Addenda are inescapable traps from which infection will always be attributed to the Gestational Carrier as improper behavior(s).

Plaintiff counsel will draft a Complaint that will, of course, start out with a Breach of Contract count. Following that, expert testimony may provide testimony such to establish that the Addenda language sets a floor for a Count in Negligence Per Se.

(1) She violated clause in the Contract;

(2) The violation proximately caused injury to a Child;

(3) The injury resulted from an occurrence of the nature which the contract language was designed to prevent, i.e., that the failure to conform to the behaviors set out in contract language was inherently negligent; and

(4) The Child suffering the injury was one of the classes of persons for whose protection the language was adopted.

Will these fly? Who can know? Each jurisdiction is different as to the application of novel causes of action. We can be sure, however, the Carrier will be in the suit at least to a Motion To Dismiss.

There are other problems with the Addenda that the Carrier will have to address during Motion Practice.

  1. These Addenda are adhesion contracts. Generally, adhesion contracts create a power imbalance where the drafting party controls all contract terms. These Addenda are dense with medical terminology and medical direction, bordering upon the practice of medicine. Gestational Carriers may not fully read such dense documents nor understand the burden placed upon their behaviors.

Even if a Carrier reads and understands the Addendum, there is no room for negotiation. Should the Carriers find a term unfavorable, often, their only option is to match elsewhere. And, with Zika found in all but 5 states, the possibility for re-matching will be slight. Even if re-matching was possible, the Carrier may have to reimburse the IPs for their expenses leading up to her exit from the match. As a result, Carriers will most likely continue with the match and Addendum, stuck with an oppressive agreement.

  1. These Addenda are unconscionable. Unconscionability is generally recognized to include inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice” together with contract terms which are overly harsh or one-sided. The fact that a Carrier either signs or goes back into the market demonstrates a certain inequality and, with terms that are overly oppressive, the Addenda fall squarely into being unconscionable. Unconscionable contract are unenforceable.

What can we glean from these thoughts? If a Carrier agrees to execute the Addendum and is infected, she is going to be sued. Carriers are generally uncollectible but an angry Parent may chose to “send a message” regardless.

Adding insult to injury, Carriers will most likely be unable to find $10,000 as a minimal deposit to hire counsel. I would expect the majority of these cases would end up with default judgments and a subsequent bankruptcy. As these cases would, most likely, not be appealed, we would not be fortunate enough to have appellate direction that could help stave off subsequent similar lawsuits.

REVIEWING ATTORNEY CENTRIC VIEW

A Reviewing Attorney will be putting their malpractice carrier on notice should the Carrier, their Client, is sued. Why? Simply stated, the Reviewing Attorney placed the client into a position where breach of contract is indefensible. Thus, the Carrier will file a third party complaint against the attorney alleging legal malpractice for permitting her execute the Addendum. Further, and depending upon the jurisdiction, there may be a concurrent ethical violation.

Interestingly enough, the Carrier must prove that but for the malpractice, there would not have been a Zika Addenda, or had the Addenda been drafted differently, she would not have been found to be in breach. So we revisit the standard of care vs. best practices once again. It would be perverse indeed if the Carrier/defendant argues standard of care while the Carrier/third party plaintiff argues best practices. That is most likely how we would see such litigation play out.M