While no pregnancy comes with a guarantee, there are many tests to help identify abnormalities or genetic disorders. What happens when the tests results are wrong, read incorrectly, or information is incorrectly typed into a report?
After three miscarriages, doctors finally told “Colleen” she had a viable pregnancy. Two sonograms confirmed her second child was a girl. Due to Colleen’s age, and what appeared in a sonogram to be larger than normal ventricles in the baby’s brain, Colleen was scheduled for an amniocentesis. The results were not good. According to doctors, the amniocentesis showed that not only was the baby a boy, but might be intersex and have a genetic disorder. Colleen and her husband were told that there were a number of disorders associated with such a diagnosis, which could also cause hormonal abnormalities and organ dysfunction.
After meeting with a genetic counselor, the couple chose to have an abortion. Colleen said the counselor told her that the child could suffer liver and kidney failure, even an early death. She said the counselor also told her that she was lucky doctors caught the defect in time to abort.
A second shock came a day after the procedure when the couple learned the test results were wrong. They were informed by the lab that a secretary mistakenly typed “XY” instead of “XX” in the gender field of the FISH report. An autopsy of the fetus showed no defects or abnormalities.
The couple filed a “wrongful abortion” lawsuit against the lab, hospital, doctors, and the genetic counselor stating that Colleen would not have undergone the abortion if not given two choices – abort the baby or take the chance of having a monster. The genetic counselor recalled the meeting differently, saying Colleen had already decided to terminate the pregnancy before her visit, and that she even asked the couple if they would like to wait for the final, complete chromosomal analysis before making a decision. A jury found the lab and its director negligent, but stopped short of attributing fault for the abortion itself, and refused to award damages for the couple’s physical and emotional injuries. The verdict was upheld in an appeals court.
This case is the most recent “wrongful abortion” case, where guided by inaccurate information, a woman decides to abort an otherwise healthy and wanted child. As in wrongful birth cases, a wrongful abortion is seen on the same premise that—“If I had known this about my fetus, then I would have made a different decision.” Yet, the law favors heavily for wrongful birth cases because parents of a child born with severe birth defects will face extensive medical costs and more to raise a child with a disability. In a wrongful abortion lawsuit, parents seek compensation for misinformation provided by the hospital, but the fetus has already been aborted. What about compensation associated with the physical and emotional injuries? In both cases, parents receive false results on a prenatal test; someone misreads lab results or records results incorrectly. Both cases are about negligence and holding the wrongdoer accountable for failing to provide accurate and appropriate information.
I wonder, how many times parents have been told their child is unhealthy only to abort what could have been a healthy child? We may never know because to detect a wrongful abortion, a mother would have to suspect that the initial diagnosis was incorrect and provide some proof. This is problematic considering the fetus is usually disposed of after the procedure. Until we can 100%, confidently, rely on the medical profession, Lawsuit Financial would recommend a second opinion whenever it comes to genetic tests or any other medical diagnosis.
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.
@thumbnail.jpg "Mark M. Bello")
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.
5 Comments
jc
Mark, I am glad to see that Lawsuit Financial sometimes recommends getting a second opinion instead of getting a lawyer?
jc
Mark-- here is a little factoid that I am sure would be of interest to you. According to a 2006 article in the New England Journal of Medicine, for every dollar paid out to compensate a plaintiff for a medical malpractice injury 54 cents is spent to pay the plaintiff attorney and administrative expenses (court costs, experts, etc.)
jc
Here is a question for any plaintiff attorney out there. Why do plaintiff attorneys continue malpractice litigation long after it is obvious that they have no case? Take me, I won a unanimous jury verdict in September 2008 and the plaintiff attorney appealed the case and on a legal technicality, he got the case overturned and remanded for retrial. The basic facts of the case were unchanged and when the plaintiff attorney realized that we were never going to settle (why should I settle, I did not cause the patient's stroke?), he finally dropped the case in 2015. So plaintiff attorneys--why persist in a case that you know has no hope of success?
Justice4All
JC,
I have been recently reading articles on this site as well as comments. I find that most of yours are not only very slanted, but also somehow always go back to you. Why do you compare every case, ever situation to yours and assume they all follow the same pattern? Your case was heard by a jury; a jury made a decision. It favored you. Congrats! Stop reliving it and throwing it up every time someone rights about medical malpractice. Wouldn't your time be more well-spent helping patients? Don't be negligent to your patience who have been sitting in a waiting room or laying in a hospital bed waiting for you to post another "unnecessary" comment.
jc
Justice 4 All: First of all--no patients wait while I attend to personal business, period. I present the other side of the litigation issue. Most malpractice suits (92.3% in Ohio in 2012) are won by defendant doctors. You would never hear that statistic on this blog if I did not bring it up. What you hear by plaintiff attorneys like Mark Bello is about the Wisconsin Woman who won $25 million, which will be reduced to $10 million and Mark Bello is crying about the situation because instead of the plaintiff attorney getting a $10 million dollar contingency fee, he only gets $4 million! You do not get things put in context. In Ohio, you have a much better chance of winning the lottery than winning multiple millions in a medical malpractice case. I can understand why you may dislike my viewpoint on this issue, particularly when I have first hand knowledge of what incompetent bozos most plaintiff attorneys are. The guy who sued me for 10 years because his patient did not take aspirin, is a Super Lawyer in Ohio. He gives lectures on malpractice litigation to other lawyers. He is listed as one of the top 100 litigation lawyers in Ohio. Yet he hires an expert to testify against me, and at the deposition, we discover that the plaintiff's expert agrees with me. So, at trial, Mr. Super Lawyer tries to prevent us from using his own expert witnesses testimony. After Super Lawyer loses a unanimous jury verdict, Super Lawyer appeals saying his expert witness was incompetent and should not have been allowed to testify! After that performance, I shutter to think about the bottom 100 lawyers in Ohio are doing!
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