Could bans on ‘wrongful birth’ suits endanger women?

Posted on: March 21st, 2012 by Sofia Resnick No Comments

Earlier this month, a jury awarded nearly $3 million in damages to a Portland, Ore., couple who said they would have aborted their daughter had they known she was going to be born with Down syndrome.

It’s the most recent example of a type of medical malpractice claim that provokes so much moral outrage, nine states have banned it. This year, lawmakers in two more states have introduced bills to prohibit these suits.

These “wrongful birth” lawsuits are recognized in 28 states and the District of Columbia. They typically arise when parents allege that a doctor failed to provide a reasonable level care in failing to diagnose a prenatal condition. The parents often argue they would have aborted their child had they known about the medical condition and seek compensation for the expense of raising a child with special needs. According to attorney Daniel W. Whitney and Dr. Kenneth N. Rosenbaum — who wrote about the issue in the April/June 2011 edition of the Journal of Legal Medicine — wrongful birth claims have been limited to instances of severe birth defects, such as cystic fibrosis, Down syndrome, spina bifida, and Tay-Sachs disease.

There are also “wrongful life” cases (recognized in only three states), which are filed by or on behalf of the child, who argues – usually unsuccessfully – that he or she would have been better off dead. Then there are “wrongful conception” cases, which usually arise after an individual has undergone a sterilization procedure that failed to prevent a subsequent pregnancy.

But it’s the “wrongful birth” lawsuits, where the parents testify that they would have aborted their child had they known about the child’s disability, that infuriate many people, especially anti-abortion rights activists and advocates of people with disabilities.

Whitney and Rosenbaum say that these types of malpractice claims are difficult for everyone involved.

“Parents of children with catastrophic birth defects must shoulder enormous financial burdens for the child’s extraordinary medical and life care,” they write. “This financial burden is often accompanied by devastating feelings of disappointment, sorrow, and worry.”

In the Portland case, The Oregonian reported that Ariel and Deborah Levy had ordered a prenatal test during Deborah’s pregnancy and were told that their daughter did not have any noticeable problems.

The newspaper reported that the Levys had testified that Deborah had had two ultrasounds that showed abnormalities, but the health-care provider, Legacy Health Systems, did not advise them to have another prenatal test, called an amniocentesis, which is risky but can detect Down syndrome and other diseases. The Levys alleged that the doctor committed several errors, such as removing maternal tissue instead of fetal tissue for the initial test. Legacy denied this claim.

According to The Oregonian, during the trial, the parents said they love their daughter and will use the money to help pay for her significant lifetime needs.

Each new highly publicized example of parents claiming they would have aborted their disabled child makes bans on such lawsuits more attractive for politicians. Lawmakers in Arizona and Kanas are currently trying to ban these types of malpractice lawsuits, arguing that the legislation would send the message that children born with disabilities are as worthy of life as those born healthy.

Opponents of the measures counter that adopting a law that allows physicians to demonstrate negligence without fear of repercussions could simply lead to more negligence and will leave parents without legal remedies to compensate them for the significant financial cost of these medical mistakes.

There have been about 100 reported “wrongful birth” and “wrongful life” cases that have gone to trial nationwide, according to Arizona State University law professor Gary Marchant, who has been working on a national study of wrongful birth malpractice claims. Marchant said his research team wanted to find out if doctors have been overburdened with these types of malpractice lawsuits and how many of them are based on real error, as opposed to long-shot, unverifiable claims. As America moves faster into the direction of very personalized medicine, Marchant said, it is important to measure the potential liability of these types of cases. He said that because of advances in genetic testing, we are likely to see more of these lawsuits and noted that while 100 cases seems like a small number, this number only represents the reported cases with a jury judgment. Thus, these are the tip of the iceberg, and there are many more that don’t go to trial because they are dismissed or settled out of court.

So far, he said, the results have been mixed: Many lawsuits were for clear errors, many were not, and the rest fell somewhere in between. Based on that evidence alone, Marchant said it is inadvisable to put a statewide ban on wrongful birth lawsuits.

“A clear mistake can have a devastating impact on a family,” he said.

Is it ‘gross’?

Arizona’s Republican-backed bill, which earlier this month passed the state Senate 20 to 9 along party lines, eliminates any possibile civil damages in lawsuits “for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.” Similarly, it eliminates damages “in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.”

But the Arizona bill contains an exception, allowing damages in cases of “an intentional or grossly negligent act or omission.”

So what distinguishes gross negligence from ordinary negligence?

Law.com, produced by integrated media company ALM and used as a resource by the Arizona Senate, defines ”negligence” as “failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.” Negligence is “accidental.”

“Gross negligence,” on the other hand, is defined as ”carelessness which is in reckless disregard for the safety of others, and is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, but is just shy of being intentionally evil.”

Before the Arizona Senate voted to ban “wrongful birth” lawsuits on March 6, after the Senate had read this bill for the third time, Sen. Linda Lopez (D-Tucson) explained her opposition to the bill, which she called “draconian in nature.”

“This bill really lets doctors off the hook when they’ve been neglectful,” Lopez said. “Medical professionals should know that when they use reasonable care that they should not have repercussions, but if they have not used reasonable care, there should be repercussions, and by eliminating the ability to sue on a wrongful life case, we’ve eliminated the ability for parents to care for their children with deformities.”

Nancy Barto, the Republican state senator who sponsored the bill, disagreed.

“Neglect is neglect, and parents that have a case where a physician has been neglectful, has intentionally withheld information or not followed the standard of care can be sued under this law,” she said.

Barto did not respond to repeated requests from The American Independent for comment.

Barto’s bill was supported by the Center for Arizona Policy (PDF), an anti-abortion policy group affiliated with the Family Research Council. During a health committee hearing in February, Barto asked Center for Arizona Policy legal counsel Deborah Sheasby to explain the bill to the Arizona senators. What resulted was a confusing half-hour exchange between Sheasby and Senate Minority Whip Paula Aboud (D-Tucson), during which Aboud pressed the CAP counsel to distinguish negligence from gross negligence, which she believed to be at the center of the bill.

Here’s part of that exchange.

Sheasby: “It’s basically if the doctor was considered negligent in not doing enough tests, not pushing the parents to do testing – somehow missing the diagnosis. If the standard of care is to do an ultrasound at this point and the doctor does not recommend an ultrasound at that point – you know, something like that, where it’s some sort of oversight almost on the part of the doctor, as opposed to he knew and he just didn’t tell them.”

Aboud: “You’re talking about something that is negligent, if a doctor does something that is not in line with the standard of care, that’s what you’re talking about, right? But isn’t that a problem? Isn’t that open to malpractice?”

Sheasby: “The problem with this cause of action – the wrongful life, wrongful birth, these types of things – is if you start looking at, you know, one of the things that you have to prove to win in a negligence lawsuit is harm, so basically it boils down to at the end of the day, can you consider being alive a harm? … And so that’s why a number of states have said, we don’t think it sends the right message in public policy.”

[…]

Aboud: “[I]t seems to me that if the doctor doesn’t follow the standard of care, like there is a sign that something’s amiss and doesn’t follow the standard of care, then they’ve breeched their whatever, their ethics or standards, so then they would be liable.”

Later in the meeting, Aboud brought up this point again, and this time Barto responded, saying she really didn’t know.

Aboud: “I think the sense that I’m getting is that we’re freeing doctors from the responsibility of doing I would call standard of care on procedures. … So what if they didn’t do a test that it seems like a reasonable doctor would have done and something happened?”

Barto: “I don’t know. The physician has some duty to do the best he can within his scope and to treat the patient according to — if you could prove that he overlooked a certain test, that would fall under the care.”

Potentially unconstitutional, potentially problematic

David Abney, a malpractice attorney, who works for Knapp & Roberts in Phoenix, told TAI that on its face, Barto’s bill seems to violate a state constitutional provision that prevents the legislature from abridging a person’s right to recover damages for injuries.

Article 18, Section 6 of the Arizona Constitution says (PDF): “The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”

Lopez also questioned the constitutionality of Barto’s bill during debates, but her concern was dismissed. And that point was not addressed by Senate Research (PDF).

Abney said the proposed law is also generally problematic.

“There is always a problem with giving anyone immunity,” he said. “These kinds of cases, when they happen, the last thing you want to happen is to have to have some sort of immunity.”

Others agree with Abney that the bill seems to be giving immunity to health-care providers, specifically in cases involving prenatal problems.

“This bill would immunize physicians from liability,” said Stephanie Toti, senior staff attorney of the Center for Reproductive Rights. “The point of this bill is to essentially apply a safe harbor for physicians [in prenatal cases].”

In Kansas, this ban on “wrongful birth” lawsuits is just one provision in a sweeping anti-abortion bill, but Toti said she does not think that this type of legislation is only about restricting access to abortion. She believes it goes further than that.

“It’s not anti-abortion,” she said. “It’s anti-women’s health.”

Toti said that women are entitled to all the information available that can help them decide how to handle their pregnancy and whether or not to have an abortion – something she said is undermined by this type of bill. But, she said, more serious consequences could arise if obstetrician-gynecologists are not held to the same standard of care as other physicians. Toti said it is unclear if there have been problems in the states that have already banned wrongful birth lawsuits, because the effect of those bills has not been studied, to her knowledge. Marchant said his study did not look at impact of wrongful birth bans.

“This statute is part of a trend to undermine women’s choices,” said Paula Berg, a law professor at the City University of New York School of Law, who teaches malpractice and public-health law. “It’s letting doctors apply a different standard of care to reproductive-health care.”

Berg said it could lead doctors to forego genetic testing for certain kinds of procedures.

Abney said that Arizona’s proposed law puts all the faith in the physician and allows doctors to be less transparent with soon-to-be parents. He said no one wants to hear about parents arguing that they would have aborted their child knowing what they know now, but he said it should be the justice system, not the state legislature, deciding if the parents have a claim.

“The judicial system is there so that people can be held responsible for what they do,” he said.

What would the ban do?

Another legal case that inspired Arizona’s proposed wrongful birth lawsuit ban occurred last year in West Palm Beach, Fla., where a jury awarded $4.5 million to parents who sued their obstetrician and other specialists for not detecting complications they believe should have been caught in utero. As The Palm Beach Post reported, the now 3-and-a-half-year-old child was born with no arms and only one leg, and the jury determined that the doctors and an ultrasound technician were negligent for failing to notice missing limbs on the sonogram. The newspaper reported that during the trial, the parents said they would have aborted their son had they known about his condition. Their lawyer told the jury that the parents would use the award (half of what they had originally sued for) to pay for their son’s extensive medical needs.

In her repeated defenses of the Arizona bill, Barto has discussed abuse of the malpractice system and the need for society to respect and value people with disabilities. But when asked directly by her colleagues to point to a specific need for a ban on “wrongful birth” lawsuits in Arizona, Barto has been unclear. The Center for Arizona Policy’s Sheasby, at the health committee meeting in February, could only think of two Arizona lawsuits related to the bill – one was a “wrongful conception” case, which Barto’s bill no longer addresses, and the other was a “wrongful life” case brought on behalf of a child against a physician, which she said was dismissed.

“Then the law upheld what your bill is already trying to suggest,” Sen. Aboud had said. “So the law said doctor didn’t do anything wrong, not liable, right?”

In response, Sheasby kept repeating the idea that allowing people to sue for damages using the child as “a harm” is “bad public policy.”

Though she sympathizes with the argument that this bill addresses negative perceptions of children born with disabilities, Dr. Donna Harrison, the director of research and public policy at the American Association of Pro Life Obstetricians and Gynecologists (AAPLOG), said this is not a “direct pro-life issue” for her association.

Harrison would not take a position on whether a state government should be able to ban wrongful birth lawsuits, but she said, “We would not want to see any precedent in law that would … open up the possibility to suing on the premise that a human being should never have been born.”

Others have questioned what Barto’s bill would actually accomplish.

“It’s not clear how the Arizona legislation would change things,” said Shirley V. Svorny, an economics professor at the California State University, in an email. Svorny has drafted analyses on medical malpractice policy for the conservative Cato Institute.

“Physicians could still be sued,” she told TAI. “The way you find out if someone is at fault is by bringing a claim against them. It is through use of the legal system that plaintiffs can get defendants to reveal the type of information that would indicate whether a physician were at fault or not. If this legislation means what she says it means (‘Medical professionals who intentionally or knowingly withhold information…may still be sued’) I don’t see how this legislation would pull physicians from the ‘legal crosshairs.’”

Here Svorny is referring to something Barto said during the February health committee hearing:

“It only makes sense to ensure that a physician who has done nothing wrong is not subject to a lawsuit because a child was born — with or without a disability. Sometimes child disabilities or abnormalities are not obvious through a test and nobody is ‘at fault.’ It doesn’t make sense that physicians remain in the legal crosshairs because some parents think some someone ought to be. Especially in light of the nation’s ongoing shortage of physicians. Anything states can do to make the practice of medicine more practicable and fair should be pursued.”

Svorny said a potential consequence is lowered oversight of physicians.

“To the extent that malpractice liability is reduced (by way of caps on damages) or eliminated, oversight of physicians by medical professional liability insurance industry and the magnitude of the industry’s risk management efforts would diminish,” she said. “In the Arizona case, it is not clear how the law would change the climate under which physicians practice.”

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