$4.5 Million Verdict for “Wrongful Birth”

A jury in West Palm Beach has awarded $4.5 million to a couple who complained that they were denied the opportunity to abort their disabled child.  If only the doctors and technicians had properly administered the prenatal ultrasounds so as to disclose the child’s disabilities the couple said they would have terminated the pregnancy.   Thus, the parents sued under the tort of “wrongful birth,” i.e. the birth of the a child is an “injury” to the parents. (ht: Overlawyered)

I can understand the parents’ anger at the doctors.  And perhaps this lawsuit offered them the best tactic to get money to care for their son.  So I don’t want to condemn the parents.  But the very existence of a tort of wrongful birth is revolting.

  1. George Savage

    I only hope the disabled child doesn’t grow to learn of his parents’ legal action.  An Internet search a decade or so from now may provide quite a shock.

  2. Duane Oyen

    If I recall correctly from Torts, there is some case law on this, and the appeals court specifically refused to allow prior wrongful birth verdicts to stand.  I wish I remembered the specific decision. 

  3. katievs

    Well, I do want to condemn the parents, and our society with them.  They should be thanking God and the inept ultrasound readers for saving them from committing a terrible evil against their own flesh and blood, made in God’s image and infinitely precious in His eyes.

    But they’re not the only guilty ones.  We’ve all been incubated in the culture of death. May God have mercy on us all and turn us back to a society that loves and cherishes each and every human life.

  4. Pilli

    So can the child now sue the parents for conspiracy to commit murder?

  5. The King Prawn

     This is the first thing I’ve read since Kelo that made my chest hurt.

  6. katievs
    Adam Freedman: And perhaps this lawsuit offered them the best tactic to get money to care for their son.  

    Perhaps.  But it’s quite a precedent to set, isn’t it?  And quite a legacy for their child.

  7. BThompson
    Adam Freedman: I can understand the parents’ anger at the doctors.  And perhaps this lawsuit offered them the best tactic to get money to care for their son.  So I don’t want to condemn the parents.

    I find that paragraph a bit disturbing all on its own. These people have no right to be angry with their doctors. Doctors aren’t perfect and it’s impossible to know when the child is in utero with absolute certainty, especially via ultrasound only, what genetic defects may exist.

    Today society seems to think we’re entitled to foreknowledge and the right to preplan every detail of our lives. That’s not healthy and it doesn’t make us happier. Instead it gives us the false expectation that we can control everything that happens and risk-manage away all unpleasantness. Learning we can’t can often be quite problematic.

    What’s more, the rest of us, including the doctors, aren’t responsible for taking care of others’ handicapped children, and courts shouldn’t be allowed to say that we are. It is not in anyway morally acceptable for these parents to use the courts in this way.

  8. Adam Freedman
    C
    katievs

    Adam Freedman: And perhaps this lawsuit offered them the best tactic to get money to care for their son.  

    Perhaps.  But it’s quite a precedent to set, isn’t it?  And quite a legacy for their child. · Oct 18 at 9:57am

    I agree completely; as I said I think it is a revolting legal theory.  It’s quite possible, however, that the parents didn’t really think through the meaning of their lawsuit – a smooth lawyer could have convinced them that it’s all just a bunch of legal mumbo jumbo and the bottom line is that they’d get more money to care for their child. The parents have to accept responsibility for their actions, but I just hesitate to judge parents in that situation (I have no hesitation about juding their lawyer, however).

  9. Adam Freedman
    C
    BThompson

    Adam Freedman: I can understand the parents’ anger at the doctors.  And perhaps this lawsuit offered them the best tactic to get money to care for their son.  So I don’t want to condemn the parents.

    I find that paragraph a bit disturbing all on its own. These people have no right to be angry with their doctors.

    Edited on Oct 18 at 10:00 am

    The child was missing three limbs (my apologies, I neglected to include a link to the story).  Having had recent experiences with my wife’s pregnancies, I find it astonishing that nobody detected that in the ultrasounds — but that appears to be the fact.  If for 9 months, the doctors told me “everything is ok” and then the child was born with serious disabilities I would be angry.

  10. BThompson

    Hey Adam, your link isn’t working. But thanks for the details. That does change my mind a bit. Obviously the ultrasounds should pick up something obvious like that. That just makes me feel, though, that the parents could have sued for some form of malpractice and some type of emotional suffering. I imagine such a suit would have resulted in a smaller settlement, but at least it would be morally defensible. Is the child mentally impaired at all?

  11. mattman

    This made me curious to do a little research, mainly because of the underlying moral question regarding whether knowing a child is going to have a birth defect could impact the decision on bringing the child to term.  For many, it would not and should not.  For some, it would and they feel that is valid.  What I ran across was the link below.  As I read it I found so many parts disturbing both in terms of cultulal decision making  process and of the sometimes twisted logic in our legal system.

    http://writ.news.findlaw.com/colb/20030521.html

  12. Southern Pessimist

    While we are talking about abortion, please read Tina Korbe’s post at Hotair. Oops, my toolbar is not working. It is not far down the page of the Hotair.com website, entitled “Yet another reason to be proud to be pro-life”.

  13. David Carroll

    There are three types of prenatal torts theories:  wrongful pregnancy, wrongful birth, and wrongful life.  Most state recognize wrongful pregnancy where negligent medical care resulted in unplanned pregnancy.  

    Wrongful birth cases are where parent seek damages resulting from negligent medical that failed to diagnose fetal abnormalities in time for an abortion.  Ohio permits recovery only of costs of pregnancy and birth, not pain and suffering or costs of caring for the child.

    Wrongful life cases are brought by the child for costs of caring for physical challenges.  Neither Ohio nor any other state as of 2006 has recognized this a cause of action.

    Source:  Schirmer v. Mt. Auburn Obstetrics, 2006 Ohio 942 (S.Ct):

      

  14. CandE
    katievs: Well, I do want to condemn the parents, and our society with them.  They should be thanking God and the inept ultrasound readers for saving them from committing a terrible evil against their own flesh and blood, made in God’s image and infinitely precious in His eyes.

    But they’re not the only guilty ones.  We’ve all been incubated in the culture of death. May God have mercy on us all and turn us back to a society that loves and cherishes each and every human life. · Oct 18 at 9:52am

    Edited on Oct 18 at 09:54 am

    1000% agree.  Every life is precious, regardless of whatever imperfections it might have.  In fact, it is often those very imperfections that make life so precious.  As a society, we have allowed ourselves to become trapped in the eugenic experimentation that C.S. Lewis foresaw in his Abolition of Man.

    In college, I attended a devotional featuring Dr. Jean Bethke Elshtain in which she delves into this concept of what it is to be human.  It had a big impact on me when I heard it; you can download it here for free.

    -E

  15. Sister

    Thank you, my thoughts exactly!!!

    katievs: Well, I do want to condemn the parents, and our society with them.  They should be thanking God and the inept ultrasound readers for saving them from committing a terrible evil against their own flesh and blood, made in God’s image and infinitely precious in His eyes.

    But they’re not the only guilty ones.  We’ve all been incubated in the culture of death. May God have mercy on us all and turn us back to a society that loves and cherishes each and every human life. · Oct 18 at 9:52am

    Edited on Oct 18 at 09:54 am

  16. Adam Freedman
    C
    BThompson: Hey Adam, your link isn’t working. But thanks for the details. That does change my mind a bit. Obviously the ultrasounds should pick up something obvious like that. That just makes me feel, though, that the parents could have sued for some form of malpractice and some type of emotional suffering. I imagine such a suit would have resulted in a smaller settlement, but at least it would be morally defensible. Is the child mentally impaired at all? · Oct 18 at 10:20am

    Yes, that’s what I was thinking.  It’s not my field of law, but I imagine there would have been a cause of action without resorting to “wrongful birth.”  Sorry about the links.   Here’s the Findlaw story: http://blogs.findlaw.com/injured/2011/09/fl-wrongful-birth-lawsuit-ends-in-45m-award.html

    And from the Blaze: http://blogs.findlaw.com/injured/2011/09/fl-wrongful-birth-lawsuit-ends-in-45m-award.html

  17. Adam Freedman
    C
    Tom Paine: Ultimately, this leads to eugenics.  Mark my word, doctors will be forced, out of self-interest, to do full genetic screening of every fetus.  And parents will demand genetic perfection.  Any fetus with markers inferior to Gisele Bundchen or Derek Jeter should be quaking in the womb. · Oct 18 at 12:54pm

    That is a fascinating point — and chilling.

  18. katievs
    CandE

    In college, I attended a devotional featuring Dr. Jean Bethke Elshtain in which she delves into this concept of what it is to be human.  It had a big impact on me when I heard it; you can download it here for free.

    Dr JBE dittoes, CandE.

    I heard her speak once on St. Augustine and was deeply impressed by her intelligence and humanity.  Thanks for the link.

  19. katievs
    Tom Paine: Ultimately, this leads to eugenics.  Mark my word, doctors will be forced, out of self-interest, to do full genetic screening of every fetus.  And parents will demand genetic perfection.  Any fetus with markers inferior to Gisele Bundchen or Derek Jeter should be quaking in the womb. · Oct 18 at 12:54pm

    It’s not hard to imagine at all, is it, that even parents who knew their child had some defect or other still sue the doctor for not having “fully informed” them of the costs and consequences to them of having a disabled child.

    It’s easy to imagine, too, that tax payers will sue parents who don’t abort their disabled children for educational and health costs incurred by their choice to bring a defective child into the world.

    And on it goes, straight to hell.