Doctor Found Only 1% Liable in ‘Wrongful Life’ Award

In a blow to a San Fernando Valley laboratory, a jury found Thursday that an Encino physician was only “1% negligent” in interpreting a blood test that resulted in the 1977 birth of a baby with Tay-Sachs disease.

The Van Nuys Superior Court jury, which split its decision 10 to 2 after deliberating eight days, found that the laboratory that administered the test, Bio-Science of Encino, should bear 99% of the responsibility for the erroneous results of the mother’s blood test.

The verdict, which a Bio-Science lawyer said will not be appealed, means the laboratory would recoup only a fraction of the $1.6 million it paid to the child’s parents, Philis and Hyam Curlender, in a 1981 court settlement.

Thursday’s verdict marks the end of the second case to grow from a precedent-setting legal battle over the child’s birth.

Concerned that she and her husband might be carriers of Tay-Sachs, a rare and fatal genetic disease, Philis Curlender took a blood test and was told by her physician, Dr. Jerome Schaffer, that she was not a carrier. She then conceived and delivered a seemingly healthy girl, Shauna.

Diagnosed After 7 Months

But the child was diagnosed as having the disease at 7 months and gradually became blind, paralyzed and convulsive. She died before her sixth birthday.

Her parents, claiming the child should never have been born, successfully brought a “wrongful life” suit, the first time such a suit was upheld in California.

The laboratory settled the case but, in the current litigation, sought to have the physician held responsible. Nevertheless, in earlier court records, Bio-Science admitted that it was 50% at fault and said its internal controls were inadequate at the time of the blood test.

“I feel vindicated,” Schaffer said upon being informed of the jury’s decision. “If I saw the test results again today, I’d react the same way” in interpreting the Curlender blood test results, he added.

Schaffer, a general practitioner in Encino for 33 years, added that he was “disappointed that I was found even 1% responsible.”

Interpretation Challenged

During the case, which opened before Judge Joel Rudof on March 22, attorneys for Bio-Science charged that Schaffer should have known that the Curlender blood test indicated a possibility that the then-29-year-old teacher could be a carrier of Tay-Sachs, which primarily affects Jews of Eastern European heritage.

Jurors found that Schaffer was only barely responsible, however. He was ordered to pay $9,840, or 1% of the $984,000 financial limit Rudof set in this case.

During the trial, attorneys for Bio-Science argued that Schaffer should have referred the Curlenders to specialists instead of relying on his own diagnosis.

Schaffer contended, however, that the results of the blood test placed Philis Curlender within an acceptable range of non-carriers.

Attorneys for Schaffer placed the blame for the physician’s diagnosis on the laboratory’s forms, which they called “fundamentally misleading and inaccurate.”

The Curlenders, citing hardship resulting from their daughter’s birth, separated during her illness and subsequently were divorced. Hyam Curlender, a travel agent, now lives in Tarzana. Philis Curlender has moved to London.