Wrongful Birth?

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I saw an interesting program on TV last night - it concerned a new and quickly growing field in civil law called "wrongful birth" cases. These are civil - not criminal - cases, just like wrongful death cases.

Here's the basics of how these cases come into existance. With the number of hereditary diseases that can be detected prior to birth increasing every year, more and more parents-to-be are getting their fetuses screened in utero to see if they have these genetic anomolies. For some of the more common genetic anomolies (like Down's Syndrome) the genetic screening is standard procedure because the initial test is performed by taking an ultrasound, which poses no risk to the fetus, and serves a bunch of other useful purposes for the obsetrics doctor.

However, there are a whole lot of other diseases that can be screened for at the parents' request, if they have a family history or come from a particular ethnic background where such genetic anomolies are common. One such example, which formed the landmark case in this field in the late 1990s, was a Jewish couple who had their child screened for Tay Sachs while still in utero. The doctor misread the lab results and informed the parents that the baby didn't have Tay Sachs, when in fact it did. The parents had stated that if the baby had Tay Sachs they would have had an abortion rather than bring a baby into the world that would have a life filled with pain and suffering until the time of its death, which usually occurs between the ages of 3-5.

The "would have had an abortion" part is what forms the basis of all wrongful birth cases. The parents are essentially arguing that the child would never have been born if it had not been for a mistake made by the doctor in this case (sometimes by the lab in other cases). Abortions are legal in the first 13 weeks of pregnancy in all 50 states, and since you can get one for any reason during that time, parents are arguing that they were unable to make an informed choice because of wrong information they were given by their health care provider.

I think it is also fair to point out that a reason why many of these parents are taking these doctors to court are because the medical bills are astronomical in some cases. Many of these cases involve babies that require 24-hour medical care, meaning you either have to hire a live-in nurse, or keep the baby in a health clinic or a hospice. Many types of health insurance do not cover that kind of care, and the parents are suing because the bills are literally driving them into poverty.

Opponents of these cases (other than poeple who oppose all abortions on religious grounds) are concerned that allowing parents to sue for cases like this may start us on a slippery slope. What types of anomolies should count? Does it have to be one that is incurable and fatal like Tay Sachs? What about a non-fatal one like Downs Syndrome? Heck, you can even screen for whether you're having a boy or a girl - could a doctor be sued for that? Proponents of these cases say that the problem with slippery slope arguements is that they focus on hypotheticals that may take place in the future while ignoring very real cases taking place presently.

Moreover, there is no agreement from one state to the next as to whether these cases can come before a court. In some states like New Jersey - where the landmark case took place in which the parents won a few million bucks - the doctor can be sued. Other states - the program mentioned Utah - the doctor is not liable.

What are other people's thoughts on this? I will admit that this is very controversial, but my initial thought is that since you don't need a reason for getting an abortion, that it makes sense that medical screening can factor into this decision, and if the information you receive is wrong, it can cause you to make a decision you would not have made. Furthermore, since these cases can only be brought to court in an instance where parents requested the test and were given wrong information, I think I'm OK with these cases. You cannot, for example, sue a doctor for wrongful birth if you never requested the fetus to be screened in the first place, and the baby is born with an anomoly.

 

Well, I agree generally with your conclusion, Aldeth. I am concerned about the "slippery slope", though, particulary given how trigger-happy the U.S. is when it comes to lawsuits.

Also, are there tests where there is a high likelihood of mis-diagnosis? In cases such as those (if there are any), I think it would be unreasonable to hold the doctor accountable (although I guess that would raise the question as to why even do the test in the first place).

 

All that'll happen is that when the tests are done, the lab will require the parents to sign a document stating that while they pride themselves on their accuracy, no test is 100% accurate, and therefore neither the doctor, the lab, etc, etc, can be held liable for any misdiagnosis. The waiver will also state that the facts involved have been explained in full to the parents.

Such papers might not be a perfect shield for the doctors, but they'd be a good start.

 

LKD,

They have those same papers when you go in for surgury - that doesn't mean that doctors cannot be sued for malpractice. Those shields only provide protection for events that are outside one's ability to control. When you screw up - or in this case make the wrong call - you are still going to be liable, paper or no paper. (Note: In the case of lab work, they usually run several trials on one sample to reduce the chance of false positives/negatives.)

 

It's a very diificult thing to think about. I was offered the test to see if Ashley had downs in the womb but turned it down. At the end of the day, it didn't matter to me, he was still my baby and still going to be loved.
However, I think that if there was a high risk that he would have been born with a condition that meant he was in constant pain and had a reduced quality of life, I think I would have terminated. On the other hand, it's not a decision you can make until you are in the situation.

As for suing doctors, that's just stupid. Tests are never going to be 100% accurate. Yes, people need to pay medical bills etc but there are families with disabled kids who have nobody to sue and they manage just fine.
The only time that people should be allowed to sue is when the doctor has said 'This is the case, it's 100% accurate, you can totally rely on that result'

 

I actually have experience with these types of cases. Being Jewish when my wife was pregnant I got tested for Tay Sachs. It appears that both parents must have the genetic marker for the baby to have it. We have since found out that neither of us have it so we weren't at risk, but I have to tell you it was scary.

I have had a client involved in one of these cases. Their first child was born with some sort of genetic disability that the kid is severely retarded and requires 24/7 care. When the Mrs. got pregnant the second time they did testing on the fetus and determined that it didn't have the genetic disability. Well nine months later the 2nd kid is born and has the same problem. So now this family has two kids who will require 24/7 care for as long as they live (which may be quite some time based on modern medecine). They sued the laboratory that did the testing and won an amount to handle the "lifetime" care of the second kid (it was a really big number).

Since then they have had a third kid, but this kid has nothing wrong with her. I have always felt bad for the third kid as I can't help but believe they had her to take care of her two older brothers when the parents die.

I absolutely have no problem with this type of testing and/or lawsuits if the tests are incorrect. The Mrs. and I had quite a bad fight in front of the doctor while she was pregnant as she was claiming she was going to have the baby no matter what, I was dead set against it, and the doctor was agreeing with me that nobody should have to go through having a child that will live a short, torturous, and inevitably short life.

 

TGS is correct concerning Tay Sachs - it is inherited in standard Mendelian fashion. You need to get the bad gene from both parents, so both parents need to be carriers for the child to get Tay Sachs - if even one parent doesn't have the gene, there's no chance of getting the disease.

(Think of it like two people with brown eyes can have a kid with blue eyes, but only if both brown-eyed parents have a recessive gene for blue eyes.)

 

I think this kind of lawsuit is perfectly legitimate. It's basically a malpractice suit. The doctor was hired to perform a medical procedure, in this case a test, and he/she botched it. If it can be shown that the mistake was within the recognized limits of the science and technology at the time (i.e. these thing happen, no test is 100%), then there was no malpractice. Just because risky brain surgery results in brain damage doesn't mean it was the doctor's fault. If it can be shown that it was someone's fault, however, then it should fall under malpractice just like everything else.

The extent of damages may depend on the legality of abortions and the stage at which the test was performed (i.e. if abortions are illegal, the doctor would be legally required to bring the child into the world anyway, no long-term damage was done, just false expectations), but that's an external issue to the guilt of the doctor, the heart of the case.

 

...or at least Mom has recessive gene for blue eyes. How does the old saying go ... mothers love their children more than the fathers do because the mother knows for certain the child is hers.

Another one for you DR....

 

Well technically, both the mother and father would still need to have a gene for blue eyes, even if the person who thinks he's the father isn't really the father...

On a slight tangent, newborn babies tend to look a heck of a lot more like their fathers than their mothers. There is probably an evolutionary reason for this along the lines of, "Of course this is your baby! See - it looks just like you!"

Now, there is no guarantee that the resemblance will continue much beyond the newborn phase. My son looked a lot like me when he was first born, but by the time he was a year old he had a much stronger resemblance to my wife.

 

I think every baby I've seen either looks like Winston Churchill or Ghandi.

I've never thought a tiny, bald, pink, squinty-eyed, squished eared, flat nosed child with a head over one-third the size of the body looked anything like me. But then they never looked that much like their mother either -- at least not for a few months.

 

All babies are born with blue eyes and blonde hair. I can't remember the exact time point when the genes kick in and change them.

 

I agree with the blue eyes, Dalveen, but every baby I've seen had dark hair for the first few days.

 

All babies are born with blue eyes because the pigment in your eyes is activated by sunlight, and there is no sunlight to be found within a womb. However, it's a very strange shade of blue - it isn't like a light blue that you associate with people who have blue eyes. It's a darker blue - almost like a navy blue.

As for the hair thing, my kid was born with a head full of dark brown hair. I have pictures to prove it.

 

Same reason eyes are dark blue is for why the hair is dark. Most frequently though the darker hair is malted, often coinciding with their 'real' hair coming through, sometimes leaving the child bald for a while instead. Everybody had a moustache before they were even born!

 

That explains my ex-girlfriend! Though why she didn't lose it after birth like every other woman is still a mystery (and yes, she was a chick, I am 100% sure )

But back to seriousness, there's a part of me that gets nervous about the whole "terminate if the child is gonna have a disability" line of reasoning. I'm not saying I don't understand why people would do it -- hell, to avoid unnecessary suffering for the child I might even do it depending on the nature of the disability, but I can see a slippery slope here, especially if the technology progresses to the point where other diseases, conditions, or predispositions can be screened. ("My baby will have asthma? Oh, I'd never want any child of mine to experience even an instant of discomfort. Abort the baby!" -- some people might say that's ridiculous and contrived, but I've learned to never underestimate the stupidity, venality, and utter illogic of some people.)

On the flipside, what if a doctor erred on the side of caution and told the parents the child had Tay-Sachs. Then, later on it comes out that he was wrong (or the tests got switched, or there was a shadow on the scanner), and the child was viable. Would the parents have the right there to sue the doctor for "wrongful abortion"?

 

They even mentioned this possibility of a slippery slope of the program. I'm not so sure that would happen, but I'm also not so sure that they could do anything about it. Remember, in the first trimester a woman can have an abortion just because she feels like having one. It is completely her judgement as to whether or not the condition would merit aborting the fetus.

However, these tests are being conducted by people who want to be parents, and they are concerned about the health of the baby. Since they are conducting the tests to ensure that the baby is in fact healthy before proceeding through the pregnancy, I would like to think that the vast majority of people who terminate a pregnancy due to a trivial or completely treatable condition.

I think this second situation is a bit mroe contrived than the first. Simply put, what reason would there be for the tests to be re-read after the woman received an abortion? In the case I cited, the only reason the test results were reviewed again was because the baby obviously was born with Tay Sachs. The tests were reviewed to determine if the error had been due to the instrument or the judgement of the person reading the results. I cannot imagine why in the case of a woman receiving the abortion that anyone would want to review those records.

Acknowledging that, I definitely think that you probably could sue if such a scenario took place, I'm just having a hard time conceptualizing a realistic means for this to happen. In the case of the doctor making the mistake of saying there was no disease/condition when there is one present, you get a baby born with a disability so you go back and see what happened. There is a reason to go back and check the records because it is obvious that a mistake has been made. In the case of the doctor saying there is a disability when none is present results in an abortion. There is no reason to go back and look further at the results, because no one realizes a mistake has been made.

 

Real simple Aldeth, 2 womens test are switched by accident. The woman told her child will have X disease terminates & the one that is told no problem has the baby, which turns out to have X disease. In the course of the investigation as part of the lawsuit, they discover the error & inform the lady that had the abortion(probably so that she can join the lawsuit & make it stronger).

 

That's really a remote possibility as well martaug. Given the sheer volume of paper that a hospital handles, it cannot be completely ruled out, but given the seriousness of medicine, not checking that the name on the top of the test results, match the patient in question is like a responsible gun owner handing someone a gun without checking to see if the safety is on. Can it happen? Yes. Does it happen frequently? Certainly not, especially considering you're saying that the same mistake happened twice, and that there would be two patients at the same place at the same time both checking for exact same rare genetic defect.

Even if a doctor screwed up and didn't notice the name was wrong, the doctor would also have to make the exact same mistake on the other patient as well, to not catch the first mistake. Also the only way the doctor could even make this mistake (beyond sheer incompetence) is if the women were having their fetuses checked for the exact same disease, and given that these diseases are rare, having two women going to the same doctor at the same time is also rare. Finally, there are two doctors that would have to make the mistake for each patient. (The doctor who reads the results is a pathologist, while the doctor who would relay these results to the patient would be the OB/GYN.)

EDIT: But if all that happens, yeah, the parents would sue the balls off him for malpractice.