"Wrongful Birth."
By Leon H Wolf Posted in Life Issues — Comments (25) / Email this page » / Leave a comment »
*Well*. I have to say that, as a legal matter, I see very little wrong with this lawsuit. Patient hires doctor to perform legal procedure, doctor fails to perform legal procedure according to the standard of reasonable care, resulting in economic "damage." Doctor pays for damages. Nothing wrong with this at all.
Except for the tiny fact that the end result of this particular doctor's negligence is that the couple now has a kid. Which is what happens when abortions don't happen. Sooo.... the parents are suing their doctor for doing a poor job of making sure they didn't have a kid. A kid that they now look at and ostensibly care for each and every day. So, I guess that when and if the rather obvious question arises amongst this couple's friends as to where the $21 million came from, the answer will be "a doctor failed to give us information that would have led us to aborting our youngest child."
There was a time when, as a society, our sense of shame would have been sufficient to prevent the filing of this lawsuit to begin with. I suppose everyone will draw their own conclusion as to the desirability of the social changes that led to the weakening of that shame. As to the moral qualities of the movement that has led us to the point that the existence vel non of a disabled individual is grounds for a multi-million dollar lawsuit, I have already drawn my conclusion.
H/T MrsNachos
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"Wrongful Birth." 25 Comments (0 topical, 25 editorial, 0 hidden) Post a comment »
Wrongful Birth actions (which are different than wrongful pregnancy (doc didn't do the job right in a sterilization) and wrongful life (even more attrocious - the kid is the party in interest suing claiming that he never should have been born)) were all the rage in the 1980s and 1990s, popping up around a little more than half the states. You're right, logically it makes lots of sense - proximate cause, that sort of thing, but at the end of the day the North Carolina Supreme Court said it best, in order to have a wrongful birth action, you have to take the position that a human life, no matter how imperfect and grotesque, is a wrong that deserves to be righted. I cannot do that.
The legislatures have realized the insanity recently. The states of Idaho, Michigan, Minnesota, Utah, Missouri, Pennsylvania, and South Dakota have banned it via the legislature. Curiously, Maine has codified the wrongful birth action.
As of Winter 2006, the recent trend (last seven to ten years or so) has been to eliminate the action where it existed via the court of highest resort for states such as Michigan and Missouri (just prior to the statutes), Georgia (was a cause of action recognized by lower courts, but not on cert to the GA Supreme Court), and Kentucky. All in all, ten states for bid it, nineteen states (and DC) definitively recognize it, and another ten states probably would allow a wrongful birth cause of action. There are ten or so states where no one has a clue. Some of the states who recognize the tort (i.e. Ohio) only allow recovery for the costs and damages associated with actual birth, which effectively eliminates the cause of action , while here in the People's Republic of Maryland, you can get damages for taking care of the kid for life if he's disabled. In many cases, the range of damages is into the tens of millions of dollars. It is really sad. It's gotta be tough to tell your kid that if they knew he had CF or Spinabyphida, you would have aborted him.
I had to control my emotions as I carefully reread the news article again and again in the link you provided. That's where it gets a bit confusing for me.
Instead, Kousseff, a specialist in genetic disorders, told them they should be able to have normal children in the future.
Isn't this technically true? I checked out the information on the genetic disorder the family's child had, and it says that it's an autosomal recessive disease, so in the other words, with each pregnancy there is 1 in 4 chance of this disease appearing.
With each pregnancy, there is a 1 in 4 chance that a child will inherit only the abnormal genes from both parents who each carry the SLO/RSH Syndrome gene.
Did the doctor mention that to the parents? It seems that the information we need to know is missing from the story. However, in any case, all parents had to was to check out the information on the internet. It took me only five minutes to have all available information at my hand, truly can't parents have done that at all?
Even if the doctor somehow "lied" to them, they still should be able to check out the information on the internet against what their doctor told them.
Whatever the case is, the parents should have known there are certain risks when deciding to have another child even without consulting a genetic disorder specialist. Therefore, the responsibility is squarely on the parents' shoulders.
Dan
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Daniel 2:20 And he [God] changeth the times and seasons: he removeth kings, and setteth up kings: he giveth wisdom unto the wise, and knowledge to them that know understanding.
Suarez v. Etkind is available here http://www.lawskills.com/case/ga/id/796/
I could not find a link for Azzolino (the NC case).
South Carolina appears to be inclined not to recognize the tort - http://www.judicial.state.sc.us/opinions/HTMLfiles/SC/25915.htm
Why would this parent be allowed to keep her child? Immediately upon giving birth, she should have no right whatsoever to raise or be anywhere near the child!
If there is even a chance that your child might have a similar disorder or disability that you are not capable of handling, dont get pregnant. For most women, pregnancy is a choice. There is not a gun to their head forcing them to "get it on". It is really not a religious issue since they were going to abort the child, so at least they should have used contraception. Or adoption of a baby with little or no medical needs.There are plenty of unwanted children out there, maybe this is a divine way of showing them what they are to blind or greedy to see. I feel bad for their dilemma, but it is their own pot of stew they have created.
"If there is even a chance that your child might have a similar disorder or disability that you are not capable of handling, dont get pregnant." - backofdabunny
Exactly, I believe that's what the lawsuit's about. The geneticist misdiagnosed the disorder of the first child, and told the woman that there wasn't a chance her next child would have the same disease. Therefore, the woman had a child without using PGD when she shouldn't have (because of the chance of the genetic disorder). Had the doctor warned her, she would have taken steps to ensure that her second child didn't have the disease.
I imagine the philosopher-king Solomon would have have offered the plaintiffs the choice of killing the baby now or surrendering him to the protection of the state.
More on this (and different) at:
Wrongful birth is an ugly phrase.
But does a physician bear no responsibility toward ensuring that the child is cared for after negligently giving the parents a completely false risk assessment? I'm guessing the outcome will have a big impact on the child's quality of life.
Would any of you support the award if it were achieved in a different way? Directed solely toward care, called -say- third-party child support, you name it.
The child was born. He is alive. That means his quality of life is considerably better than if he was dead.
...when they see me they'll say, "There goes Loren Wallace,
the greatest thing to ever climb into a race car."
I'd also add that this is not a situation where the doctor *caused* the medical problem at issue - except insofar as he failed to give the parents sufficient information which have led them to make sure the child was never born, whereupon the medical "problem" I guess would not have existed. If this were a situation where the doctor had failed to detect, for instance, an Rh problem which led to birth defects, I'd be all for making him pay the cost of raising the child. As it is, the problem at issue in this story is entirely genetic, so I fail to see why, in a society that doesn't view the very existence of the handicapped as an insult, he should be held liable for anything.
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[O]f all the loose terms in the world, liberty is the most indefinite. It is not solitary, unconnected, individual, selfish liberty, as if every man was to regulate the whole of his conduct by his own will. The liberty I mean is social freedom. It is that sate of things in which liberty is secured by the equality of restraint.
-Edmund Burke
As long as pro-abortion organizations paid for it. Like a surcharge on every abortion performed by PP. Or by attaching the liquid assets of abortion doctors.
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CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
If suits like this cause abortionists' malpractice insurance to skyrocket, it could put some of them out of business.
There was a time when, as a society, our sense of shame would have been sufficient to prevent the filing of this lawsuit to begin with. I suppose everyone will draw their own conclusion as to the desirability of the social changes that led to the weakening of that shame.
is key. This is what I find so astonishing about the attitude towards abortion in society...if you were able to do a "Back to the Future" and leap back to 1955 and you told someone this story, they'd ship you off to the nut house. You have correctly identified the problem - societal change has occurred to numb the citizenry to the horror of killing the unborn. I'm sure someone can identify an approximate point in time when this abomination began, but I'm not a good enough student of history to pin it down.
I can only speculate as to the sick feeling that God must have when he sees the cavalier way that humanity deals with this issue. If not for His covenant with humanity that he would never bring another flood that would wipe us out, I'd say we'd all be swimming with the fishes right now.
...when they see me they'll say, "There goes Loren Wallace,
the greatest thing to ever climb into a race car."
I find the legal argument offenisve, and I agree "wrongful births" sounds pretty horrific. However, if life is truly valued by society, than isn't there a sense that society should bear at least some cost in caring for severely disabled children?
That is, isn't it consistent to suggest that a society that valued this life would render such legal arguments moot, because there would be no economic damage? Then, we wouldn't need to demonize parents who make the only legal argument available to them to try to care for their child.
That was somewhat the case in my suggestion. The judge needs to declare this parent unfit and remove the child (and any others) from her care immediately. If that means the state has to take care of the child, so be it. It would nullify her financial concerns. She should have NO RIGHT to even attempt to raise this child!
so now there are two children with astronomical medical costs facing the parents. If the courts take the children from the parents, you and I will pay for the costs.
If the parents are allowed to keep their children, you and i still pay because they are going to run out of money real quick and the children will be supported, if at all, by the guvamint.
If the doctor was negligent, his insurance pays. If his insurance company has actuaries and sensible rate structure, the insurer is going to have this risk built into the premiums, and have reserves sufficient to pay without resort to the public coffers. that's why the guvamint gives them a license to insure.
We had these cases in law school in the 70's. Nothing new here.
Who pays? That is the operative question. No moral question involved, just a question of who pays.
to their economic implications.
I suppose that, to some, it is impossible to reduce a lawsuit to the statement that it makes, or the message that it sends, because it's all about dollars and cents. Nevermind the fact that the foundation of the lawsuit is that the currently living should not be burdened with the existence of handicapped individuals. It's all about who pays, eh?
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This kind of liberty is, indeed, but another name for justice; ascertained by wise laws, and secured by well-constructed institutions.
-Edmund Burke
Given the high costs involved here, the who pays question has great relevance. And I don't think we know if the parents (or even the lawyers) here necessarily embrace the moral logic of the argument. Rather, the argument is the only legal device available to the parents who want to treat their child. It's what lawyers do.
Again, the whole situation here is troubling. One implication of this situation is that it appears that the parents have to prove that had they had the diagnosis, they would have sought an abortion. Extending that just a bit, the law would seem to suggest parents who would not choose abortion would not be entitled to anything at all. So, yes, the lawsuit does send a very bad message.
But to me, the underlying problem isn't the law--the law in this case anyway is symptom the difficulties and costs involved in caring for those with disabilities.
Leon, one reason to reduce the lawsuit in this case to mere economics is that it then avoids the even more troubling "perfect child" type arguments.
Whether this kind of "avoidance" of the "perfect child" argument is a good thing, or not.
And, I recommend that you re-read the comment to which I was responding - his very last sentence expressly disclaims any moral quality in the case whatsoever.
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This kind of liberty is, indeed, but another name for justice; ascertained by wise laws, and secured by well-constructed institutions.
-Edmund Burke
It seems to me that the foundation of the lawsuit is whether there was negligence on the part of the doctor. If the parents had made a statement that they would not have had a second kid had the doctor properly informed them of the risk, would you still object to lawsuit?
Without knowing more of the details it appears that the parents were willing to take a risk that a second pregnancy could result in a fetus with a genetic defect and had they been aware of the risk they would have sought genetic testing and if positive an abortion. This morality is offensive to those with anti-abortion views. However, the responsibility of the doctor should not be hinged on the values of the couple.
To look at this another way, imagine that the couple were strongly against abortion and were counseled by the doctor that there was no risk. In such a situation, if the couple found out about the genetic defect during the pregnancy they would still have recourse to bring a lawsuit for damages if they did not have an abortion. If this hypothetical couple's values were the focus, i.e., the right not to have an abortion, should the doctor's liability be dependent on the moral acceptability of their values to a legal system which may or may not agree with them?
My views should be apparent from my user name, but I would strongly oppose a system of justice where a couple would have to choose between having an abortion against their convictions or being unable to recover damages for the care of their child that they would not have had if their doctor had not been negligent.
That $21M is about 40% of what the litigator in DC sued a local dry cleaner for when they lost his pants.
"Scott Thomas" - The New Republic's Winter Soldier
between people who rely on their doctors to not get pregnant (wrongful pregnancy) and those who decided to have a kid, got tested, the test came back that there weren't any problems, and the kid winds up with a debilitating disease that the test or doctor missed because of his or her negligence. The big problem though, and it is quite a dilemma, is the ability to call human life a "damaging" event, in and of itself. Where does it stop? What if there is a test to determine whether or not your kid will be deaf? Whether your kid will have imperfect eyesight? Could you argue that you would have aborted your kid if you knew he would have poor vision or need hearing aids? And it doesn't stop there, if you could show disadvantages in life posed by extreme height or lack thereof, or a predisposition to obesity - would that warrant recovery?
In the other words, the lawsuit is absurd. However, I do sympathize with the parents, they're stuck with two severely disabled children with no way out of it. I do hope they can get some help in covering the medical care costs, but suing a doctor whose diagnosis isn't exact science is plainly absurd.
Dan
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Daniel 2:20 And he [God] changeth the times and seasons: he removeth kings, and setteth up kings: he giveth wisdom unto the wise, and knowledge to them that know understanding.