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Mark Bello
Mark Bello
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“Wrongful Birth” Lawsuits Present a Cruel Quandary for Parents

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Assume in the course of caring for you, your doctor makes a mistake.  You decide to file a lawsuit for negligence or malpractice; you are required to demonstrate that the mistake caused harm. This is a huge problem for parents who receive a falsely reassuring result on a prenatal test, then deliver a horribly disfigured newborn. The person who misread the lab results missed the disfigurement, but did not cause it.  The only way parents can seek compensation to provide for the expensive health care and support of the child is to file what has become known as a “wrongful birth” lawsuit.  This is a lawsuit grounded in the concept that the couple, if the disfigurement was known to them in the very early stages of pregnancy, would have terminated the pregnancy.
A Florida couple filed a wrongful birth lawsuit for pain and suffering and for the medical/extraordinary cost of raising their child, born with no arms and one leg.  The couple argued that despite having a number of ultrasounds, a technician never properly accounted for or noticed their son’s missing limbs. If properly informed of his disabilities, the couple said they would have saved him “a life of physical and psychological pain” and terminated the pregnancy.  A jury found the doctor 85% responsible and the ultrasound tech 15 percent responsible.  The couple was awarded $4.5 million.  The award is intended to cover prostheses, physical therapy, wheelchairs, operations, attendants, psychological care, and other needs.  His parents said that it helps to know that no matter what happens to them, their son’s care will be financially covered.
The verdict upset pro-life advocates who said it promotes abortions in cases when unborn children are diagnosed with physical or mental disabilities in the womb.   “I hope when little Bryan grows up he never Google’s himself or his parents. I can’t imagine the horror when he reads that his parents wish they would have killed him,” he said. “I wonder how quickly he will grasp that his parents think his life, since he has disabilities, isn’t worth living,” said Paul Cooper, freelance writer for Pajama Media.
 
I don’t know this couple; neither does Paul Cooper.  This case is not about the right to life; it is about informed consent and holding wrongdoers accountable for mistakes.  The costs of raising a child in this condition are enormous.  The couple would certainly end up broke trying to do so.  That would put them on some type of government assistance and Medicare/Medicaid.  In other words, without this verdict, the taxpayers would pay for the child’s extraordinary care needs.  Do we want those responsible for the outcome to bear the cost of their medical mistake or do we want to shift the burden to the taxpayer?  I, for one, choose the wrongdoers
Parents who bring wrongful birth suits face a burden that no other medical malpractice plaintiff does.  It is a cruel quandary for parents, even crueler if their child’s disabilities are such that the child can understand later in life.  It forces them to take an awkward position; they must be willing to say on the record, “I would have chosen to abort my child.” The concept of “wrongful birth” requires this proclamation.  “Wrongful birth” lawsuits are poorly framed and poorly named.  Parents in these circumstances should be drawn into the political and religious battles over abortion rights.  But they should receive accurate information and should be able to make their own, very painful, decision, based upon their own moral and religious beliefs.  This is more about unnecessary emotional distress and the cost of raising a severely disabled child than it is about “abortion”.  While those in the religious right advocate for “life”, they offer no solutions for those who can’t afford the needs of a permanently disabled child.  They attack parents, attorneys, wrongful birth lawsuits and the civil justice system, but offer no practical alternative.
 
Mr. Cooper and other pro-lifers can try to spin this anyway they wish, but can anyone say that this couple isn’t doing what they are doing in the best interest of their son.  No one can say that they don’t love their child.  How cruel can you be, Mr. Cooper?  Hopefully, when the child “Googles himself”, he will be able to see through the rhetoric, read between the lines, and realize that his parents only sought the right to accurate information so they could make an informed decision.  The purpose of their lawsuit was not about the life of a disabled child being worth less than that of a healthy child.  It was about not getting all the information from their doctor so they could prepare for a severely disabled child or make the agonizing decision to terminate the pregnancy. 
 
Dragging parents in these tragic circumstances into a political debate over abortion is heartless and cruel.  Don’t these parents have enough on their plates?  Wrongful birth cases are, at their core, about 1. A medical mistake costing a parent his or her right to choose how to move forward without informed consent,  2. Compensation for severe emotional distress, and 3. Compensation for the cost of extraordinary care for a severely disabled child, because of medical professionals’ failures to provide accurate and appropriate information.  That is all they are about, no more, no less.  But, those on the right of the abortion debate or the tort reform debate will stop at nothing to further their anti-citizen political agenda; they will even throw a tragic couple like this one under the bus for their political agenda. Shame on them.
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company/

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  1. jc says:
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    As readers of this blog know, Mark Bello and I have markedly different views regarding the utility of civil litigation in medical malpractice. Ohio instituted tort reform about 10 years ago. ORC 3929.302 requires all med malpractice insurers to report all closed claims to the Ohio Department of Insurance every year and this report is sent to the legislature. TORT REFORM IN OHIO HAS BEEN A RESOUNDING SUCCESS! In 2005, 5,051 med mal claims were filed and that decreased to only 2,773 in 2012! As I have stated many times on this blog 80-85% of medical malpractice cases that go to court are won by the defendant doc. I must now admit to this blog that I was wrong–In 2012, in Ohio, if a judge or jury decided a medical malpractice case, THE DOCTOR WON 92.3% OF THE TIME! Mark Bello is factually incorrect when he asserts that most cases are settled to the plaintiff’s advantage before trial. In Ohio in 2012, 70.32% of medical malpractice cases were dropped prior to trial with no payment to the plaintiff or his attorney. I invite Mark Bello or any other person to verify the validity of this non biased factual report at http://www.insurance.ohio.gov. Overall, if a patient files a medical malpractice suit his chances of winning any money at all are 1 in 5. If the case goes to trial there is only a 1 in 20 chance that the patient will win any money.