Is a doctor liable in the stated circumstances?

Question

Consider the situation where a doctor knows that his patient is a carrier of a genetic disorder and she is going to act as an egg donor.

Is the doctor liable to the egg recipient for failing to warn them?

Answer 1

In theory, yes. But the case law is thin.

In one example, Paretta v. Medical Offices for Human Reproduction, plaintiffs alleged that "defendants committed medical malpractice when they failed to properly screen the egg and inform the Parettas that the egg tested positive for the cystic fibrosis gene."

The doctors had admitted that "[the] egg donor was screened for Cystic Fibrosis, and was found to be a carrier."

The defendants filed for a summary dismissal as a matter of law, but the court declined:

The court will not dismiss plaintiffs' allegation that they are entitled to punitive damages. Plaintiffs have alleged grossly negligent or reckless conduct, and defendants have not established that dismissal of these contentions is warranted as a matter of law. [...] It is certainly possible that defendants' conduct was at the very least grossly negligent—possibly even fraudulent—and that defendants could have prevented the Parettas from having a baby with cystic fibrosis. There is evidence that defendants may have known that the egg donor was a cystic fibrosis carrier; yet, they failed to inform the Parettas or test Mr. Paretta's sperm to assess whether he too was a carrier. Had the Parettas been informed of the potential for cystic fibrosis they themselves may have chosen to have Mr. Paretta tested or may have altogether opted on using a different egg donor.

This is the template of a negligence tort for the hypothetical that you present. I know you've asked about the U.K., but this specific area isn't well enough developed in either country.

Here are two articles exploring this issue in depth:

• Suriya E.P. Jayanti, Guarantors of Our Genes: Are Egg Donors Liable for Latent Genetic Disease, American University Law Review. Volume 58, Issue 2. (2008)
• John A. Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, American Journal of Law & Medicine, 30 (2004)

Answer 2

There are a lot of "ifs" underlying this question, for example is the donor's doctor also the recipient's doctor? We probably have to assume that, otherwise the donor's doctor would have no contact with the recipient. How did the doctor come to be in possession of this information? I think BRD's question in the comment is on point, since doctors are not generally authorized to go snooping, so we have to also assume that the donor authorized the test, and in so doing would have granted or denied permission to disclose. So has the donor authorized the doctor to disclose said confidential information? If so, failure to pass on that information to the recipient would be a pretty straight-up act of negligence. In Paretta, the defendants failed to screen, which is different from screening and ignoring (perhaps lying about) the results.

If there is no consent to disclose, then you have to look into UK medical confidentiality regulations. First off, there is mandatory disclosure of certain diseases, but it depends on which country of the UK you are in. Disclosure of genetic information is addressed in GMC guidance 67-69, and that section kicks the can down the road by appealing to the "public interest" section. The applicable GMC guidance on public interest, 53-55, is also not particularly clear. It does say that the doctor should seek permission for disclosure, but disclosure without consent is allowed "if failure to disclose may expose others to a risk of death or serious harm". #55 says:

If a patient’s refusal to consent to disclosure leaves others exposed to a risk so serious that it outweighs the patient’s and the public interest in maintaining confidentiality, or if it is not practicable or safe to seek the patient’s consent, you should disclose information promptly to an appropriate person or authority.

Question 1 then is whether the genetic disorder constitutes a "risk of death or serious injury". If we conclude that it does, then the doctor may be authorized to disclose information to "an appropriate person", which you could interpret as being "the recipient". Vast amounts of the law pertain on involuntary disclosure regards disclosure to government agencies, and there does not appear to be any sanction of disclosure to a third party (the recipient), even an interested third party. There is an uncertain path whereby the doctor would be allowed to disclose (but must inform the donor of the disclosure).

What the doctor is suppose to do, in this case, is report the situation to GMC (anonymizing the information). That is, the doctor does not make a legal determination whether the condition constitutes a "communicable disease", the government does. If the government determines that the doctor should disclose the information without consent, the doctor would be shielded from liability. The final complication is that there is a strong presumption that genetic information should not be disclosed, though it is not plainly prohibited as it is in some of the EU. If the donor is identifiable, that works against disclosure.