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Debate Over Malpractice Suits For "Wrongful Birth" Heats Up

March 13, 2012

An Oregon jury recently returned a $3 million dollar medical malpractice verdict to a family for the "wrongful birth" of their Down syndrome daughter. The family filed this unusual malpractice lawsuit against Legacy Health claiming the health provider negligently performed prenatal testing during the first trimester, resulting in a false negative finding for Down's syndrome. At trial, the family testified that, although they love their daughter, they would have terminated the pregnancy had they known she would have Down syndrome. Because of the false negative, the jury agreed Legacy Healthy should be responsible for paying the medical, therapeutic, and educational costs needed for the Down syndrome child.

A "wrongful birth" lawsuit is where parents of a congenitally diseased child claim a health provider failed to properly warn them of the risk of conceiving a child with a serious genetic or congenital abnormality. In this type of medical malpractice claim, the parents assert the health provider prevented them from making an informed decision over whether to have a child. In addition, the parents must generally show that had they been advised of the genetic abnormality or risk thereof, they would have terminated the pregnancy. Finally, the parents must prove the damages that result from the wrongful birth. In the Oregon case, the parents sought economic damages needed to care for their Down syndrome child.

There are a number of arguments cited by opponents of wrongful birth lawsuits. For example, some argue wrongful birth lawsuits could increase abortion rates--a procedure many all ready feel is immoral. If doctors and other health providers fear being sued, they may be more likely to disclose virtually any risk of a congenitally abnormality, even those that are statistically remote. This could give parents more reason to abort than if they did not have this information. In turn, this could cause some parents to abort a perfectly health fetus simply because they wrongly feared their child would have genetic abnormality. Another argument against wrongful birth is the psychological impact it has on children with genetic abnormalities. By allowing such lawsuits, opponents of wrongful birth lawsuits argue this validates societal prejudices against those living with mental handicaps or other congenial conditions. Finally, a wrongful birth lawsuit could cause serious psychological harm to the child of parents who brought such a lawsuit because the child could conclude their parents never wanted them because they are abnormal.

Proponents of wrongful birth lawsuits argue parents should have the right to make an informed decision about whether to conceive a child or not. A doctor that fails to disclose a congenital abnormality, or serious risk of one, deprives prospective parents the opportunity to make an informed decision on an already life altering matter. Similarly, parents that have a mentally disabled child usually incur enormous monetary costs needed to care for the child. In some instances, these parents spend their life savings just to care for their disabled child. Without damages from a wrongful birth lawsuit, there could be no money to care for the disabled child such as if the parents die or simply run out of money. In this way, proponents of a wrongful birth lawsuits argue allowing these causes of action is ultimately in the best interest of the child.

Last week the Arizona Senate passed a bill prohibiting any medical malpractice lawsuits against a doctor who withholds information from a woman that may cause her to have an abortion. Senator Nancy Barto (R-Phoneix), who sponsored the law, says she does not want patients blaming their doctor for a baby being born with a disability. However, as some Arizona legislators point out, this law goes much further than simply preventing wrongful birth lawsuits. Representative Matt Heinz (D-Tuscon), who is also a physician, opposes the law. According to Senator Heinz, the proposed law does not fit the role of a doctor and noted that in many cases a woman needs to know about certain health problems in pregnancy that could potentially kill her. "I cannot think of a time that it is right to withhold information from a patient that would cause them pain or death," said Heinz. The proposed law has yet to reach Arizona Governor Jane Brewer's (R) desk.

Fox 12 Oregon, Jury Awards Family $3 Million In "Wrongful Birth" Lawsuit, March 9, 2012.

Huffington Post, Wrongful Birth Bill: New Abortion Legislation Passes Arizona Senate, March 9, 2012.

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