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Santa Barbara Physician Prevails in ‘Wrongful Life’ Medical-Malpractice Lawsuit

A Superior Court jury has absolved a Santa Barbara physician of wrongdoing in a “wrongful life” medical-malpractice lawsuit filed against him on behalf of a boy born six years ago with Down Syndrome.

After a six-day trial, the jury earlier this month found that Dr. Mohamed Ali Zaki and Women’s Total Care Medical Clinic were not negligent in their care of the boy’s mother, Maria Teresa Alvarez, according to court documents.

Alvarez, who was 44 at the time she gave birth, had sought $5 million in damages for “medical, physical and nervous pain and suffering and loss of enjoyment of life” by her son, Aiden Alvarez, who was born in January 2012.

In the lawsuit that was filed in June 2017, Alvarez claimed that Zaki failed to properly screen and diagnose a “defective fetus” and offer her “the option of abortion.”

Alvarez also claimed Zaki did not offer her testing for fetal abnormalities or information regarding genetic testing.

Specifically, Alvarez alleged Zaki never informed her about or offered her maternal serum alpha-fetoprotein testing (MSAFP) and the option of terminating her pregnancy.

MSAFP testing is conducted via a blood draw during the second trimester, and is used with other tests to help determine an expected mother’s chances of having a baby with a genetic birth defect.

“But for the negligence per se of defendants…Aiden Alvarez would not have been born at all,” Alvarez’s lawsuit states.

In his response to the legal action, Zaki claimed that Alvarez “did not exercise ordinary care, caution or prudence to avoid the happening of the incident complained of.”

The court file includes a statement from Dr. Paul R. Weber, an obstetrician-gynecologist, who reviewed Alvarez’s medical records for the defense.

Weber noted that Zaki performed an ultrasound on Alvarez, which showed no abnormalities, but referred the pregnant woman to Dr. Alex Soffici for an additional ultrasound and genetic counseling because of her age, which presented a higher risk for having a child with genetic abnormalities.

Soffici offered to perform an amniocentesis and conduct other genetic testing, Weber wrote, but Alvarez decided against them.

Alvarez “declined all genetic testing and screening, stating that she would not terminate an abnormal pregnancy,” according to Weber’s statement.

Aiden was born Jan. 28, 2012, via Caesarean section, weighing 6 pounds, 5 ounces, according to court documents.

Alvarez, who has other children, was represented in the case by Nathanial J. Friedman, a Beverly Hills attorney who specializes in medical-malpractice and “birth injury” cases.

Zaki was represented by Brian H. Clausen and Barbara S. Kilroy of the Santa Barbara firm Clausen & Kilroy.

The jury returned its verdict on July 5 after deliberating less than an hour.

Asked to comment on the outcome of the case, Friedman told Noozhawk: “We had a bad jury. They were unfair. The trial had gone six to seven days, and you can’t digest six or seven days in 20 minutes. They didn’t take the time to go over all the evidence.”

Kilroy countered that both sides chose the jury, and the medical records strongly favored her client.

“Justice prevailed,” she said. “It was the right outcome from the very beginning. It was a case that should never have been filed.”

The case was tried before Judge Pauline Maxwell in Santa Barbara County Superior Court.

Noozhawk executive editor Tom Bolton can be reached at .(JavaScript must be enabled to view this email address). Follow Noozhawk on Twitter: @noozhawk, @NoozhawkNews and @NoozhawkBiz. Connect with Noozhawk on Facebook.

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