$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.

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  1. Profile Photo Contributor
    @GeorgeSavage

    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.

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  2. Profile Photo Member
    @DuaneOyen

    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.

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    @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.

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    @Pilli

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

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  5. Profile Photo Member
    @TheKingPrawn

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

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  6. Profile Photo Member
    @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.

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  7. Profile Photo Member
    @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.

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  8. Profile Photo Contributor
    @AdamFreedman
    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).

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  9. Profile Photo Contributor
    @AdamFreedman
    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.

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  10. Profile Photo Member
    @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?

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  11. Profile Photo Member
    @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

    • #11
  12. Profile Photo Member
    @SouthernPessimist

    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”.

    • #12
  13. Profile Photo Thatcher
    @DavidCarroll

    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):

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  14. Profile Photo Thatcher
    @DavidCarroll
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  15. Profile Photo Member
    @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
  16. Profile Photo Member
    @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
  17. Profile Photo Contributor
    @AdamFreedman
    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
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    @AdamFreedman
    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
  19. Profile Photo Member
    @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
  20. Profile Photo Member
    @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.

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    @LoFon

    These bizarre causes of action are rooted in the contraceptive/abortive mentality. At one point, people had the odd belief that a sexual act may lead to the birth of a child. Nowadays we’re much more sophisticated. Any sexual act is assumed sterile unless otherwise desired by the participants. If the obvious consequence of the sexual act, a child, is not desired by the participants, we have the right to dispose of that obvious consequence. I do not desire a child, so dispose of him. If you do not properly dispose of him, I will sue you because my rights to dispose have been breached. I desire a perfect child; if he is not perfect, dispose of him. If you do not properly dispose of the child; I will sue you.

    Case dismissed on summary judgment because plaintiffs assumed the risk of having a child by engaging in consensual sex and are strictly liable for any child that mysteriously results from engaging in said act.

    Yes, I know the doctor agreed to perform a service (screen and/or abort) and did not perform it properly and may be held liable. But, what bizarre circumstances the abortive mentality has wrought.

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  22. Profile Photo Member
    @JohnMurdoch

    Tom Paine/Katievs:

    You’re using the future tense–incorrectly. The population of children with Down syndrome has dropped dramatically because ob/gyns routinely encourage parents to abort. Nowadays something like 95% of Downs babies are aborted.

    And Katievs–I have a daughter with Down syndrome, and I actively worry about getting “blamed and shamed” for having a child who uses tax dollars for special ed. It will be an issue in 2012: everybody wants to talk about entitlement reform–but no politician in the world is going to take on AARP. Farm subsidies? Not a chance. The big entitlement that’s going to get “reformed”? Special ed, and services for the mentally disabled.

    I have spent twenty years working on the assumption that there will come a day when Annie gets zero support from anyone other than her family–and will be deemed “not a good candidate” for any kind of medical care for anything more serious than the flu. That day is coming soon–and it’s precisely that fear that Trig Palin’s mom referred to when she used the term “death panels.”

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    @TomPaine

    Doctor: “Based on the genome screening, here’s a series of 3D images of your child at various stages of life, from infancy through maturity.”

    Father: “Are those brown eyes? We were really hoping for blue…”

    Mother: “Aren’t her legs a little…stumpy?”

    Father: “Yeah, too stumpy…”

    Doctor: “Well, you know, you can always start over. But I just have to tell you that you’re still working with a mix of your own genetics…”

    Mother and Father: “So it’s our fault? It’s our fault? What kind of thing is that to say? What kind of doctor are you?”

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  24. Profile Photo Member
    @TheKingPrawn

    While discussing this with my wife we concluded that our dear friend Kayla would flip these people the bird…if she had arms.

    • #24
  25. Profile Photo Member
    @katievs
    John Murdoch: Tom Paine/Katievs:

    And Katievs–I have a daughter with Down syndrome, and I actively worry about getting “blamed and shamed” for having a child who uses tax dollars for special ed. It will be an issue in 2012: everybody wants to talk about entitlement reform–but no politician in the world is going to take on AARP. Farm subsidies? Not a chance. The big entitlement that’s going to get “reformed”? Special ed, and services for the mentally disabled.

    I remember hearing of a successful businessman with a down syndrome son saying once, “Since he was born our family has been a school of love, and he is our professor.”

    One of the things that enthused me about Sarah Palin was her personal witness and political commitment to the value of even “defective” human life.

    I love the books and philosophy of Jean Vanier.

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  26. Profile Photo Member
    @katievs
    James Gawron: What I will do is give you a secular ethical principle of my own making.

    “According full humanity and therefore full human rights becomes increasingly difficult the earlier in the pregnancy you look. By the same token Not according humanity and therefore withholding full human rights becomes increasingly difficult the later in the pregnancy you look.” · Oct 18 at 9:03pm

    The problem with this is that we believe—don’t we?—that human dignity and rights are not accorded by us, but rather endowed by the Creator.

    We are responsible to protect that dignity and those rights in law. We have no authority to “withhold” human rights from other human beings, no matter how tiny.

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    @katievs

    Another problem with your principle is that it is utterly impractical: there is no point on the line between earlier and later pregnancy to rationally ground a law.

    From the point of view of science, a complete new human being comes into being at the moment of conception. From there, he or she develops steadily and predictably into the baby who is born nine months later.

    By what principle and on what grounds do you say he or she may be killed on the 39th day of life but not on the 40th? What happens on that day (you haven’t answered) to change his or her moral status from dispensable to indispensable?

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  28. Profile Photo Member
    @tortillapete

    The parents don’t deserve to have children, and the “award” should follow the child to adoptive parents who do.

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  29. Profile Photo Thatcher
    @JamesGawron

    Adam, I don’t know where to begin, so I will simply tell you exactly what think. I am a Jew and an Orthodox Jew. I emphasize Orthodox because the vast majority of modern Jews don’t know what Jewish Law says much less follow it. If you deeply understand Jewish Law you would realize that 99.99% of modern abortions would not be allowed under it. What happens is that most modern Jews don’t know their own faith at all. Meanwhile, many in the Orthodox communtiy who do know obscure or rationalize Jewish Law into oblivion. With so many willing fools ready to buy into Modernity’s bypass of Morality on this issue many in the Orthodox community have accepted what they know to be both evil and against their own teaching. I will add that strictly speaking Jewish Law would only allow prevention of the pregnancy in this case if the knowledge of the defect had occured within the first fourty days from conception. Since they are referring to ultrasounds as evidence I doubt this knowledge could have existed here and Jewish Law would automatically dismiss the case. I need 2000 words not 200 for this issue.

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  30. Profile Photo Member
    @katievs
    James Gawron: I will add that strictly speaking Jewish Law would only allow prevention of the pregnancy in this case if the knowledge of the defect had occured within the first fourty days from conception. Since they are referring to ultrasounds as evidence I doubt this knowledge could have existed here and Jewish Law would automatically dismiss the case. I need 2000 words not 200 for this issue. · Oct 18 at 8:08pm

    Abortion is not “prevention of pregnancy”. It is the deliberate killing of an in-utero baby.

    Pregnancy can only be prevented before pregnancy actually occurs, no?

    I’d be interested in learning what happens at forty days to change the moral status of the fetus from expendable to not expendable.

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