By Jody Lyneé Madeira
Since families and doctor-conceived children first began to file lawsuits against physicians and clinics alleging “fertility fraud,” a term for illicit physician insemination, each subsequent court order has presented much-needed information about how courts could address these allegations. Mortimer v. Rowlette, pending in the U.S. District Court for the District of Idaho, was one of the first filed, and has provided considerable insight into how these novel claims could be resolved.
I initially commented on this case in January 2019, following an early order. Chief Judge David Nye described Dr. Gerald Mortimer’s alleged fertility fraud as “morally repugnant, ethically questionable, and demeaning.” Critically, Judge Nye consolidated parents Ms. Sally Ashby and Mr. Howard Fowler’s claims into a single medical malpractice claim, and dismissed their adult daughter from the case, finding she lacked standing and Dr. Mortimer had breached no duty of care because she had not yet been conceived.
In the months after this initial order, a paternity test at last confirmed that Dr. Mortimer had in fact used his own sperm in Ms. Ashby’s procedure. But on February 5th, 2020, Judge Nye issued an even more momentous decision and order regarding Dr. Mortimer’s summary judgment motion and the plaintiffs’ request to add punitive damages.
And this order is an entirely satisfying read.
Dr. Mortimer advanced two main categories of claims: the inability to prove prima facie medical malpractice and damages. He contended that the plaintiffs were actually claimed wrongful pregnancy, that they had wanted and received a healthy child, that the plaintiffs had failed to show the physical injury or damage required for medical malpractice, that emotional trauma wasn’t “damage,” and that damages were too speculative. I’ll offer a spoiler before getting to the substance: all of these arguments are for naught, and the end result frees the litigants to move forward to a jury trial and unlocks the potential for punitive damages.
Judge Nye’s skepticism of Dr. Mortimer’s arguments was palpable throughout the opinion.
He noted that Ms. Ashby “felt like she had been raped by her doctor, and commented that Dr. Mortimer “suggests” he committed fertility fraud “out of concern for patients and his personal desire to help them conceive.” Ominously, Judge Nye observed that Dr. Mortimer stopped using his semen not when testing requirements changed and frozen donor sperm became the standard of practice, but “when DNA testing became more widespread through internet companies such as Ancestry.com.” One wonders just how long this man continued to violate unsuspecting patients.
Judge Nye then set about resolving Dr. Mortimer’s remaining arguments. He made short work of the claim that the plaintiff’s medical malpractice claim was actually one for wrongful pregnancy, finding that, under Idaho law, a wrongful pregnancy claim always involved the birth of an unplanned and unwanted child—a clear distinction from this case, where the plaintiffs’ daughter was desperately wanted.
What was “unwanted and unplanned was Dr. Mortimer’s use of his own semen to artificially inseminate Ashby without her knowledge or consent.” Thus, Judge Nye affirmed, “this is not a case about parentage or conception; it is about fraud and deception by a physician.” He also determined, the plaintiffs’ “child’s existence was not an injury; the harm devolved solely from the doctor’s intentional conduct and failure to conform to the ‘community standard of health care practice in obstetrics and gynecology.’”
Next, Judge Nye turned to Dr. Mortimer’s causation claims regarding the plaintiffs’ injury and damages. He handily dispatched Dr. Mortimer’s appalling argument that he only owed his patients a duty to avoid physically injuring them, finding that emotional distress damages were cognizable injuries. To hold otherwise would be insupportable and would “require the Court to ignore the reality of his conduct and insulate a physician from intentionally negligent, and—as discussed above, in some States criminal—‘medical’ treatment that didn’t impose a physical injury.”
Crucially, Judge Nye found that emotional distress was foreseeable from this conduct because of “Plaintiffs’ vulnerability, the intimate nature of Dr. Mortimer’s ‘donation,’ and the sacred aspect of both conception and the parent-child relationship.”
This conclusion was reinforced by Dr. Mortimer’s own incriminating admissions that he knew this conduct was wrong, understood it could create emotional distress, and had no reason to dispute that his actions caused both plaintiffs severe emotional distress. Judge Nye took Dr. Mortimer to task for arguing that the plaintiffs’ emotional distress was impossible to foresee 37 years earlier: “There is obviously a distinction between foreseeing your conduct is negligent and could cause a patient emotional distress and foreseeing you will be caught for taking such actions.” Thus, Dr. Mortimer’s motion for summary judgment was denied.
Judge Nye then addressed Dr. Mortimer’s remaining damages claims. First, he rebutted Dr. Mortimer’s claim that “a substantial portion” of the plaintiffs’ distress came from their daughter’s discovery that she was not Mr. Fowler’s biological daughter, not the illicit insemination. Judge Nye pointed to ample evidence that Mr. Fowler was outraged and suffered physical distress symptoms and that Ms. Ashby felt nauseated, depressed, enraged, angry, and “incredibly violated” because she had taken her daughter to subsequent prenatal appointments, ignorant that her doctor was the biological father. Dr. Mortimer’s claim that the plaintiffs’ emotional distress stemmed from litigation rather than his conduct also fell on deaf ears, and his assertion that the the statute of limitations had run was defeated by the fact that the medical malpractice claim accrued when the plaintiffs suffered a “physical injurious change” upon learning of his deceit.
In the final portion of the order, Judge Nye found that “substantial evidence” supported allowing plaintiffs to amend their complaint to include punitive damages. The plaintiffs had included an expert report from a physician who determined Dr. Mortimer’s conduct “deviated from the local standard of care” in eight ways Dr. Mortimer, however, claimed that his acts couldn’t be “an extreme deviation from reasonable standards of conduct” because the plaintiff’s expert was primarily focused on the lack of anonymity, and he “never interfered with the anonymity requirement because he ‘never interfered with Plaintiffs’ lives, or Rowlette’s, in any way.’” Judge Nye, however, rejected these arguments, finding that wrote that Dr. Mortimer “unilaterally decided Plaintiffs were better off having his baby than risking another month of infertility,” “violated Plaintiffs’ desire that their sperm donor would not know them or their baby,” and “deviated from the applicable standard of care in seven additional respects.”
Before inflicting the last body blow, Judge Nye easily sidestepped Dr. Mortimer’s feeble argument that punitive damages weren’t warranted in cases where the defendant “intended to do good, regardless of how misguided the accompanying actions may have been.” Deeming this characterization “self-serving,” Judge Nye noted that Mortimer “has changed his story throughout this suit”; the defendant initially denied using his own semen, then asserted he didn’t “specifically recall” using his sperm to inseminate Ms. Ashby, then admitted that he did use his own sperm to inseminate Ms. Ashby and realized that their daughter was his biological child—but still continued to contest paternity testing). Dr. Mortimer’s “dishonesty” and evasion, Judge Nye remarked, “suggest his motivations were not as pure as he contends.” Finally, the Judge found that allowing good intentions to negate punitive damages would be unjust, turning plaintiffs’ desperation and vulnerability as a sword to skewer their claims instead of a shield to defend them.
Though by no means a final outcome in the case, the bones that remain of Dr. Mortimer’s arguments surely augur ill outcomes for the defense and suggest that fortune—and foreseeability—will favor Ms. Ashby and Mr. Fowler. Legally, the most consequential outcomes are the court’s affirmation of an expert’s opinion that these unethical illicit inseminations were not the standard of care, its powerful rejection of Dr. Mortimer’s self-protective claims, its recognition of plaintiffs’ extreme emotional distress and the inherent violation of intimate and sacred protected interests, and its determination that this mortifying behavior could justify punitive damages. The coming trial will be of great interest—especially to the growing numbers of plaintiffs who are waiting in the wings for their own claims to be heard.
Dr. Jody Lyneé Madeira is Professor of Law, Louis F. Neizer Faculty Fellow, and co-director of the Center for Law, Society & Culture at the Indiana University Maurer School of Law in Bloomington, Indiana. She is the author of Taking Baby Steps: How Patients Collaborate with Fertility Clinics (University of California Press, 2018) and Killing McVeigh: The Death Penalty and the Myth of Closure (New York University Press, 2012).