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Congers family awarded $28 million in wrongful-birth lawsuit

Feb 10, 2007 | The Journal News

Congers family awarded $28 million in wrongful-birth lawsuit

A Wrongful-Birth Lawsuit.

A family has been awarded $28 million in a wrongful-birth lawsuit against a New Jersey doctor and a national medical testing company.

Justin Tineo, a 3-year-old Congers boy born with a rare and deadly genetic condition, was awarded $15 million. His mother, Wanda Tineo, was awarded $13 million by a New Jersey jury for her emotional distress.

Tineo went to a doctor in New Jersey for testing when she found out she was pregnant to determine if the fetus had myotubular myopathy.

The rare disease runs in her family and is marked by a defect in the cell structure of voluntary muscles. It causes low muscle tone.

Children with the disease have trouble breathing on their own and usSTRually need a ventilator to survive. They generally have a limited life expectancy.

Tineo was told that tests showed her baby did not have the disease.

But when he was born in April 2003 at Nyack Hospital, doctors saw right away that he did, the family's lawyer said yesterday.

A jury trial in Passaic County, N.J., near where Tineo went for genetic testing, focused on who made the mistake.

The Tineos could not be reached for comment yesterday.

As soon as Justin was born, Nyack doctors contacted Aldo Khoury, the doctor who ordered the tests performed on Wanda Tineo, said the family's lawyer. Khoury is a specialist in high-risk births affiliated with St. Joseph's Regional Medical Center in Paterson, N.J.

No Box For The Myotubular Myopathy Test.

An investigation showed that there was no box for the myotubular myopathy test on the laboratory form filled out by Khoury's office. The doctor did write an order for the test on the form, but the laboratory never performed it, the family's lawyer said.

"No one ever checked to see if it was done," he said.

A jury found that Khoury was 50 percent responsible for the test not being performed.

LabCorp of America, a nationwide medical testing laboratory, was found by the jury to be 40 percent responsible, and Dr. James Tepperberg, director of the cytogenetics department at LabCorp, was 10 percent responsible, according to the jury, which announced its verdict Thursday.

Khoury maintained yesterday that he had acted properly when he ordered the tests. He had written the order for the test on the lab form many times before, he said.

"LabCorp did Ms. Tineo a huge injustice," he said. "She was very sympathetic to the jury, and they acted accordingly."

Pam Sherry, a spokeswoman for LabCorp, based in Burlington, N.C., said yesterday that the company was disappointed with the verdict.

"We performed the tests we were asked to do and we did them accurately and reported them promptly," she said. "We did nothing wrong."

Khoury and LabCorp both said they were considering an appeal.

Wanda Tineo knew she was at risk for having a baby with myotubular myopathy because her sister had given birth to two sons with the disease, her lawyer said. Both babies died soon after birth.

"She had decided that if the tests showed that the baby had myotubular myopathy, she would terminate the pregnancy," said the family's lawyer.

Wanda Tineo's husband works as a driver for Bergen County, N.J., said the family's lawyer.

His insurance plan required that his wife get the genetic tests done by a specialist in New Jersey. That's why she went to Khoury, he said.

The family's lawyer said both the doctor and LabCorp had enough malpractice insurance to cover the verdict.

The $15 million awarded to Justin will help pay for the child's medical care. He is on a ventilator, is fed through a feeding tube and needs around-the-clock care.

Despite his physical limitations, he has normal intelligence, his lawyer said.

"His intellectual ability is unaffected," he said. "It's a very sad case."

Need Legal Help Regarding Wrong Lab Test Results

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