Doctor is sued over child with Down defect Birth: A Hagerstown couple is seeking $5 million for care of their retarded son, claiming warnings about birth risks were not given.

October 17, 1997|By Caitlin Francke | Caitlin Francke,SUN STAFF

The labor pains hurt more than the first time she gave birth. Then, at 2 a.m., on a mid-November night four years ago, the doctor announced "perfect" as Joyce Shull's baby boy was born.

It wasn't until eight hours later, as she waited to cradle her son, Elliott, in her arms, that Shull learned she was the mother of a child she wished was never born -- a child with Down syndrome.

Now claiming that they were incorrectly informed of the risk of giving birth to such a child, Shull and her husband are in court, suing a doctor, nurse practitioner and a Columbia medical practice for the costs of raising the boy.

Shull says she would have had an abortion if she knew the fetus had the genetic defect. She had been tested for abnormalities and told the tests were normal. Now facing the financial and emotional challenge of raising a retarded child, she wants her former medical team to pay for it.

"Life isn't easy for those of us with all our mental capacities," Shull, 38, testified Wednesday. "I would have loved him enough not to have him."

"I only want what Elliott deserves," the Hagerstown woman told a jury in Howard County Circuit Court, where her trial began Tuesday and is expected to last several more days. "I love Elliott, I love Elliott with all my heart."

Defense disputes burden

Defense attorneys for Dr. Swati M. Saraiya and Johanna Martino, a nurse practitioner, dispute Shull's claim that she was misinformed, and they say there will be no additional expense to the Shulls in raising a child with Down syndrome. Saraiya and Martino worked at the time for Woman to Woman Health Care in Columbia, which is also named as a defendant in the lawsuit.

Services for the disabled are publicly funded, and medical research says that children with Down syndrome respond better when included in mainstream life, not sent to private institutions, they argue.

"Is he a burden or is he a blessing?" defense attorney Jodi Ebersole asked of Elliott. "I think the evidence will show the latter."

The Shulls' suit seeks $5 million toward the cost of raising Elliott.

Technology becomes factor

So-called wrongful birth lawsuits such as the Shulls' action are becoming more common as science and technology allow doctors to identify early on any deformities or illnesses a child may have, a national disability expert said. In some parents' minds, science can all but guarantee a healthy baby.

The more technology there is, "the more reason you have to pursue this kind of case," said Paul Marchand, director of governmental affairs for the national Association For Retarded Citizens. "You would not have reason to pursue this case 30 or 40 years ago."

For disability advocates, the case is troubling. They say that medical advances now allow Down syndrome victims to lead fruitful lives. The birth of such a child is not necessarily a tragedy, they say.

But they also acknowledge that raising a child with a disability can be very stressful on the family. Many parents split up or divorce because of the tensions, Marchand said.

Fear for son's future

In court on Wednesday, Shull testified that she fears for her son's future.

Doctors have told her he is "high-functioning" but she says he is very slow in learning. He has had to take several medications and has spent weeks in the hospital. She said she has to "campaign" for services such as speech and occupational therapy to be provided to her son.

She testified she does not want her daughter Darcy, now 5, to have to support her son when she and her husband die.

"She should not have to have the financial responsibility for a group home or whatever is best for Elliott," Shull testified.

In her suit, filed in May 1996, Shull alleges that the doctors never told her that she was at such a high risk.

She took a blood test -- referred to in the lawsuit as MSAFP, Maternal Serum Alpha-Fetoprotein -- during her 16th week of pregnancy to screen for any abnormalities. The tests came back to her doctor's office showing that she was at high risk to have a baby with Down syndrome, the lawsuit says. She was 34 at the time of the tests.

But through a series of errors that the defense acknowledges, Shull was initially told that her tests were normal. Martino, the nurse, misread the tests at first. Three weeks later, she tried to rectify the situation by calling Shull and leaving a note for the doctor.

The parties differ on what happened next.

After the nurse discovered her error, Shull came for her regularly scheduled appointment. According to defense attorneys, both the doctor and the nurse spoke with Shull about the tests and informed her of her high risk. Shull disputes that, saying she was told the test results indicating a high risk were in error.

Further testing with amniocentesis was recommended, but Shull declined because she says she thought there was nothing to fear. Had she known that her test results indicated the high risk, she would have undergone amniocentesis to confirm Down syndrome and then aborted the fetus, she testified.

The defense maintains that not only did Shull know the risks, she indicated to the doctor and nurse before and after the birth that she would not have done anything differently with her pregnancy.

Witnesses for the defense and the Shulls are expected to include experts testifying about how best to treat children with Down syndrome.

Shull acknowledged under cross-examination Wednesday that she testified in a pre-trial deposition that she and her husband had discussed what to do if their child was diagnosed with problems before birth. They decided, Shull said, "we would love him, whatever, him or her."

But, she testified in court, "we had those discussions when we had all good test results."

Pub Date: 10/17/97

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