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Andrew Bergh
Andrew Bergh

October 26, 2000

Misread blood test sends couple to court

By ANDREW BERGH
Special to the Journal

Adultery is definitely a no-no.

But if you insist on having an affair, keep your big mouth shut. Even if your other half becomes suspicious, deny, deny, deny. And unless you’re caught red-handed, only confess as a last resort. Because as shown by Brown v. Philadelphia College of Osteopathic Medicine, honesty isn’t always the best policy when it comes to extramarital trysts.

By anyone’s account, Aug. 29, 1991, should have been a joyous day for Gerald and Yvette Brown. That’s when mom gave birth to the Pennsylvania couple’s second child, a seemingly healthy daughter.

But soon after the infant underwent a routine blood test at the hospital, Yvette’s euphoria turned to despair. Why? Because a doctor advised that her daughter was born with syphilis. On top of that, Yvette was told the baby only could have contracted the disease from her.

It took Yvette about a millisecond to put two and two together.

So even though it was mid-summer, Gerald probably saw his breath when he arrived at the hospital for a visit. And before Gerald could spell i-n-f-i-d-e-l-i-t-y, Yvette confronted him with the syphilis diagnosis and grilled him about his faithfulness.

This is where hubby blew it.

True, Gerald had been having an affair with someone at work for three months. But if he’d been a little quicker on his feet, Gerald would’ve expressed shock at the news, vehemently denied any disloyalty and demanded another blood test.

Instead, Gerald spilled his guts and fessed up to the affair.

Now don’t go worrying about the Browns’ baby girl. Following her release from the hospital, the infant underwent another blood test. And in October 1991, the parents got great news: no syphilis. The Browns also learned in December 1991 that Gerald, too, had tested clean.

In short, the syphilis diagnosis had been wrong, which meant Gerald had copped out to cheating for no good reason.

But the favorable test results had little impact, as the Browns’ marriage was already in trouble. And before too long, Gerald also became physically abusive – another dumb (not to mention illegal) move since Yvette was a police officer for the city of Philadelphia.

The Browns’ lowest moment undoubtedly came in November 1991.

While off duty at home, Yvette received a phone call from her male partner on the police force. Hearing a man’s voice on the line, Gerald got suspicious, grabbed the phone off the wall, and proceeded to whack his wife with it.

But once Yvette retrieved her service revolver, Gerald retreated outside with his wife in hot pursuit.

It wasn’t pretty.

Standing outside in just her underwear, bleeding all over herself, and screaming obscenities, Yvette fired her gun in a blind rage. And although she missed a fleeing Gerald, she did fatally wound a parked car.

Not exactly conduct becoming an officer. So Yvette probably wasn’t too surprised when the police department canned her from the force.

But even though her career was in shambles, Yvette still had Gerald. (Although they briefly separated following the assault incident, Gerald returned home around February 1992.) And together, they had a plan: to sue the pants off the doctor who had misdiagnosed the syphilis.

Which is exactly what the Browns did in October 1993. According to Yvette, the misdiagnosis caused severe psychological damage and the loss of her career. Gerald, too, sought damages, essentially claiming his marriage was nearly ruined by the misread blood test.

Perhaps, like me, you’ve sometimes wondered why Philadelphia is called the City of Brotherly Love.

Here’s the reason: generous juries. Following a six-day trial in April 1998, a jury awarded Yvette a whopping $500,000 in damages. Even Gerald the Cheater got $10,000. And after tacking on interest, the Browns had a judgment in hand for almost $667,000!

But if you’re rooting for the Browns, I’ve got bad news for you.

Although momentarily in shock following the verdict, the doctor appealed. His main argument? Even if he had negligently diagnosed syphilis, the Browns’ damages were legally caused by other factors.

And two months ago, just one day after the Browns’ daughter turned nine, a Pennsylvania appeals court agreed.

It’s true, said the court, that the doctor’s misdiagnosis may have set the wheels in motion.

But in terms of what actually caused the breakdown in the Browns’ marriage and their claimed damages, the court pointed out that other – and more substantial – forces were at play.

These included Gerald’s affair, his confession and his unfounded suspicions that Yvette was having an affair. They also included Yvette’s “independent act” of shooting at her husband, and her employer’s ensuing decision to terminate her for “unbecoming conduct.”

In sum, the court basically said, “You brought this on yourselves, so you don’t deserve a windfall.”

Which is especially true of Gerald.

After all, as I recommended at the outset, all he had to do was just keep his big mouth shut.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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