Wrongful-birth suits on rise Tests: Advances in prenatal testing have sparked a boom in lawsuits against doctors accused of failing to read them correctly.

October 30, 1997|By Caitlin Francke | Caitlin Francke,SUN STAFF

A Maine couple is suing their doctor because they say he botched tests that would have shown their baby was retarded. Last year, a New Jersey mother won $2.7 million to care for her son, born with stumps for arms, when her doctor settled a case after being accused of misreading the sonogram.

And in a Howard County courtroom last week, a Columbia obstetrician and her former medical practice successfully defended themselves against a suit brought by a Hagerstown couple who alleged they were not informed of the woman's high risk of having a baby with Down syndrome.

In all these cases, the parents say they would have aborted the pregnancies rather than have such children. So they took their doctors to court.

Unthinkable years ago, so-called wrongful-birth suits are increasingly common, experts say, because of advances in medical testing and the skyrocketing cost of health care.

Legal and medical experts predict such suits will multiply as genetic testing becomes an accepted -- and expected -- part of prenatal treatment, raising the standard of care. Through testing, doctors should be able to predict almost every feature of the child, from a deformity to the color of an unborn child's eyes.

"The more and more tests the market puts out there the more and more people are going to be disappointed," said Karen Rothenberg, director of the Law and Health Care Program at the University of Maryland School of Law. "There will [also] be more chances that things can go wrong."

Rothenberg and others worry about the ramifications of such suits. They wonder how many tests doctors will feel obliged to perform and how those test results will be used by parents, doctors and insurance companies.

"Somebody may say I have a wrongful-birth suit because my kid is a dwarf or he was born without a sense of smell," said Arthur L. Caplan, director of the Center for Bioethics at the University of Pennsylvania. "What about shortness? What about acne?"

But for Bruce Nagel, a New Jersey attorney who has represented dozens of plaintiffs in wrongful-birth suits, the suits are not about creating the perfect child.

"Doctors are supposed to be able to read a sonogram," said Nagel, who is currently pursuing a case of a grandfather suing a doctor for emotional distress over the birth of a grandchild with an inherited disease. "It's about properly communicating information to the parents to allow them to exercise their choice."

In the Howard County case, a jury decided after seven days of trial that the Columbia doctor and medical practice should not be held responsible for the birth of the boy with Down syndrome. The boy's parents sought $2 million to help raise the boy, now 3.

The case sparked heated reactions from Maryland parents of children with Down syndrome and drew national interest. A national television news show sent a reporter to hear the verdict and later talk the case over with jurors, possibly for a future program.

Wrongful-birth suits started appearing in significant numbers about 10 or 15 years ago with the advent of prenatal testing and the availability of abortion, experts say. Though controversial, most states allow the suits to be filed.

But at least seven states -- including Pennsylvania, Missouri and Utah -- have enacted state statutes that bar them. All of those laws were enacted in the past 10 years, according to research done last year by Leslie M. Tector, a Massachusetts attorney whose firm defends medical malpractice cases.

Tector said the states' decision to prohibit such suits comes from lobbying by special interest groups, including anti-abortion organizations, advocates for the disabled and doctors.

"It's a public policy argument," Tector said. "It has a lot to do with what groups in the legislature think and don't think."

In wrongful-birth cases, parents seek damages claiming that if it were not for medical negligence the child never would have been born. The suits generally deal with allegations that procedures or tests were not correctly performed or not offered.

Another class of suits are titled "wrongful life." Filed on behalf of children, these suits against doctors allege that the children essentially would be better off never having been born. Many courts have rejected such claims largely because it is difficult -- not to mention unsavory -- to quantify the value of a person's life for calculating damages, experts said.

Few wrongful-birth cases actually make it to court. Those that do are hard to win, experts say, because juries are often unsympathetic to a plaintiff's case especially if it involves claims that the woman would have aborted the handicapped child.

Said Caplan: Jurors "understand that there are costs involved, but they tend to say, 'If you are willing to roll the genetic dice,' " then you have to live with the outcome.

Despite the challenges and the morally provocative positions these suits often take, experts and attorneys say that the American health care system makes these suits unavoidable.

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