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Parents Hit Jackpot Over ‘Wrongful Birth’

This beggars the moral imagination. A couple sued accusing companies that should have alerted them that their unborn child had serious genetic defects of denying them the opportunity to end the child’s life. They won. [1] Excerpt:

On Tuesday, a King County Superior Court jury placed the blame — $50 million worth — equally on Valley Medical Center in Renton and Laboratory Corporation of America (LabCorp), based in North Carolina.

According to court papers in the wrongful-birth case, Valley ordered a prenatal test that can be counted on to find this type of chromosomal abnormality only when the lab receives additional information — a “road map,” essentially — showing it where to look for the specific problem. Valley failed to send that information to the lab, and never told Rhea Wuth that without the additional directions, the test results might not answer the crucial question.

Although the lab’s own procedures specify it should follow up with a phone call when such information is missing, that call was not made, said the family’s lawyer, Todd Gardner, of Renton.

The lab missed the translocation. Had the couple known of the genetic defect, they would have ended the pregnancy, according to court filings in the case.

This is a horrible case, no doubt about it. I agree that this family should get something for the expenses they have incurred and will incur in caring for their child. But the only way that is justified is if you accept their belief that the child should not be alive. We mustn’t minimize the emotional pain this couple is going through, but still, I cannot imagine going to court and claiming that I was wronged because I wasn’t given the opportunity to exterminate the disabled child I now care for. It’s gruesome.

And it seems to me it sets a dangerous precedent. Could a parent who is displeased with their child over a child’s medical condition — assuming the condition could have been detected with prenatal testing — sue doctors and other medical professionals for failing to provide them with information that would have swayed them to abort their unborn child? Again: gruesome. What parent goes to court to contend that justice requires that their baby, however damaged, should be dead? I don’t get it.

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66 Comments To "Parents Hit Jackpot Over ‘Wrongful Birth’"

#1 Comment By Thomas Aquinas On December 12, 2013 @ 5:43 pm

A commentator writes: ” I don’t think most of us know what we would do in this couple’s situation. None of us ought to pass judgment on what they are facing as a family.”

I’ve never owned a slave, nor have I been a slave, and yet I know that it is wrong. I’ve never raped anyone, nor have I been raped, yet I know it’s wrong. I was never sexually abused a youngster, but I know it would be wrong for me to murder my assailant years later while I am an adult. The fact that I have never experiences the harm of sexual abuse, does not mean that I cannot judge an act of murder as murder, even if it is performed by a victim.

Remember, the reason why Lady Justice is blind is precisely because she cannot let her personal experiences, her biases if you will, distort her perception of the good, the true, and the beautiful. Suggesting that one must experience something in order to properly assess is actually the opposite of justice, and in the long wrong undermines it. This is why you would be relieved of jury duty if you had been victimized like the victim in a criminal trial. For a person in such a position would most likely confuse vengeance with justice.

#2 Comment By Erin Manning On December 12, 2013 @ 5:49 pm

I read the article, and my thought was, “But what about his cousin?”

The child will be cared for by the money from the lawsuit award–but the reason these parents wanted the genetic test in the first place was because a cousin was born with this condition, which was the first time anyone realized it was a possibility.

The way our society is structured, the parents of Oliver can sue on the grounds that they wanted Oliver to be tested in utero for the condition so they could abort Oliver and try again for a healthy child; in failing to do the test properly the medical company let Oliver’s life continue through his birth, and now the parents must care for him. But the cousin, whose condition was a surprise, must be raised and cared for without any such help; there’s nobody for his parents to sue, as this condition requires special genetic screening in order to be caught.

Is this just? Should we even condone a situation in which parents can argue, “We wanted a healthy child, and your test was supposed to tell us if the fetus in utero wasn’t healthy so we could kill him and start over, but it failed and so you are financially responsible for this child’s care? Isn’t that creating a dangerous precedent where parents of children born with various serious conditions will *themselves* be held liable for the “wrongful birth” if they refused prenatal genetic testing?

I have tons of sympathy for parents caring for special-needs children, but that doesn’t change the danger of these kinds of arguments.

#3 Comment By SusanMcN On December 12, 2013 @ 6:04 pm

Actually, balconesfault, I think this is one of the major moral issues of IVF. It is all nice and good to proclaim only born beings “children” but it simply isn’t science. A fertilized egg has its own unique DNA structure and therefore identity. Leaving thousands of human embryos in freezers for decades and then dumping them out when they are no longer wanted is nothing short of horrific.

#4 Comment By Darth Thulhu On December 12, 2013 @ 6:43 pm

This title really is breathtakingly callous and inaccurate.

If you honestly want there to be no abortion, but simultaneously refuse to support political candidates willing to have the State tax to provision medical care for severely disabled children still living with their families, then massive damages claims against private malpractice is the only alternative to surges in abandonment, institutionalization, and foster care.

To somehow call that “hitting the Jackpot” betrays any hint of moral seriousness.

You are eventually going to have to own up to reality that the Democratic Party, evil as it is, is by far the lesser of two evils on this moral issue.

The Republicans are never going to seriously try to establish laws that would ever prevent wealthy people from getting abortions (free market!). Never. They will only make abortions increasingly difficult and burdensome for women who are not well off, while simultaneously gutting all programs to assist in the care of disabled children still in the custody of their parents (tax cuts!). The only logical conclusion of the Republican policies on offer are an explosion of abandoned disabled kids whose increasingly-expensive care can’t be afforded by their non-wealthy parents.

Say what you will about the evils of the Democratic Party, but they would be willing to raise revenue and pay for care for disabled kids still living with their families. If you truy want actual human beings to remotely entertain the idea of neither aborting nor abandoning severely disabled children, you need to offer them a rational means by which they won’t be rendered bankrupt by decades of astronomically expensive medical care. There is precisely one major political party willing to even consider such the idea, and it isn’t the Republican (tort reform!) Party.

#5 Comment By Matt On December 12, 2013 @ 6:56 pm

Basically, you can be compensated to pay the costs associated with raising a severely disabled child that you might have chosen to abort, but you won’t be compensated just because you had a child unexpectedly, or had a child that doesn’t meet your long list of requirements.

Thanks for the detailed answer, and if this is how it works then it seems entirely reasonable and answers that concern. And although I don’t necessarily care about strict consistency in these matters, I’d say it is pretty logical too. For the disabled child, the abnormality of the situation is what makes it notable and worthy of consideration.

I think it’s fair to say that no one likes the idea of aborting the disabled, but I can see where a couple might look at the costs and say “we can’t do that”. A more robust support system for these cases would turn some of these couples around and cause them to have the baby anyway. I realize I’m taking the liberal line here, but it seems right, especially since it achieves a conservative goal (reducing number of abortions). But alas…our politicians.

#6 Comment By Basil On December 12, 2013 @ 7:19 pm

“I agree that this family should get something for the expenses they have incurred and will incur in caring for their child. But the only way that is justified is if you accept their belief that the child should not be alive.” Then you must accept their belief, Rod. Or, you’ve miswritten those sentences. Or, you’re thinking is lazy and/or confused. Parents are morally responsible for the expenses that come with children (although a society may deem that parents with children with extraordinary needs may receive support from the community via the taxpayer). In a morally sane world the companies would only be responsible for damages awarded by a court specifically for their negligence but not for the child’s lifetime expenses, since they didn’t cause the child’s condition but rather failed to identify the biological factors which led to it. Of course, your American legal system has long since ceased to be morally sane, for which you have my sympathies.

#7 Comment By Siarlys Jenkins On December 12, 2013 @ 8:40 pm

But the only way that is justified is if you accept their belief that the child should not be alive.

Not so. The child IS alive. Care for this child involves considerable expense. If not for the malpractice in conducting the tests, which were undertaken for the explicit purpose of obtaining precisely the information that was not provided, the family would not have those expenses.

Of course, the perspective is different when you consider, as I do, that conception is a roll of a million dice, most potential genetic combinations will never be manifested in a living human being, and if the parents want to re-roll the dice before a baby is formed, there is no reason they shouldn’t. That said, when a baby HAS been formed, not a single cell with a unique pattern of genes, not a blastocyst of 8 or 16 or 32 inchoate cells, but a baby with a central nervous system capable of being born, eating, breathing, etc. without a placenta or a uterus to support it, there is no going back.

I think Erin is on to something… if society is going to impose upon parents the considerable expense and intensive labor of raising a child who needs all kinds of special care, then we should all chip in to help with the expenses, whether there is medical malpractice in pre-natal testing or not. There should be a wide range of options, and these should include placing the child in a carefully controlled, predictable environment rather than blindly seeking to mainstream everybody. (We should neither foreclose that option, nor make it mandatory or default for everyone.

#8 Comment By John On December 12, 2013 @ 8:45 pm

I don ‘t really think this case creates any precedent since embryos and fetuses can be aborted for any reason at all, whether it is done for the unborn’s sake or not.

In any case, the hospital was negligent by failing to provide the markers neede for the test and LabCorp was guilty of malpractice for its failure to conduct the test appropriately (since they didn ‘t seek the markers they billed for something they didn’t really test).

The fines are designed to pay for the child’s health expenses, which might otherwise have been unaffordable had they lost in court and since they gave birth to the child it was better to make the claim that the hospital and lab were ultimately responsible for imposing this unwanted burden on them than to deprive the child of the medical care he will need. To those who say Obamacare was going to create death panels I say they already exist. It’s called profit-driven healthcare. Health insurers knew how to deny coverage too. Pre-existing conditions ring a bell?

Pro-lifers think they have everything figured out. Everthing is black or white, right or wrong . The rules are simple.

It’s not that simple. Mr. Dreher says these kinds of clsims that the parents might otherwise have aborted the child had they known of his severe disability is “gruesome” and that the precedent which is established is “gruesome.”

I don’t know. Sometimes one has to pick between two options that are gruesome and I am a firm believer that the quality of life matters just as much as the life itself. And forcing some people to live with some rare but painful untreatable diseases seems pretty “gruesome” and dare I say, sadistic, to me.

And consequently not all abortions are equal. They can be used to spare the pregnant woman of an inconvenience (an admittedly selfish end) and to spare the unborn from a life of chronic pain. They can be performed early in the pregancy before the fetus acquires the ability to feel pain and they can be performed at a time when they are barely distinguishable from an infant five seconds after birth. (Abortions performed in the first month or two wouldn’t concern me as much as those born in the sixth or seventh).

Some people (thankfully a select few) really are better off dead (or not having been born). An infant born with Tay Sachs has a pretty bleak future. They are born, go into spasms, lose their eyesight and ability to swallow, and then they die.

I guess the question that could be asked is why someone who has the genetic markers would conceive in the first place. There would have been no moral dilemma if they decided to adopt and if they effectively practiced birth control but until our culture is, god forbid, willing to forcibly sterilize those who probably shouldn’t give birth, abortion and these lawsuits are the only means to solve this dilemma.

#9 Comment By Charlie On December 12, 2013 @ 8:58 pm

“But I think that, in general, courts don’t recognize the birth of a healthy child, and the expenses associated with raising that child, as a “harm” that can be remedied with money.”

In a sense they do, when they require that a father pay child support, even if he did not intend for the child to be conceived. If the father had used contraception in order to guarantee the result he wanted, and the contraception failed, according to our laws, if the mother brings the child to term, the father is required to support that child for 18 years. Whether the child is healthy or not makes no difference.

I think there’s an important distinction there, though. In the former case it’s a question of what society/the legal system/negligent doctors owe two parents who decide, together, to sue for financial assistance in raising a child they intend to keep, but also say they did not want.

For me that’s meaningfully different from a case where two people take on the risks associated with sexual activity, and then one person (usually the father, but not always) attempts to place the whole burden of child-rearing on the other parent. What society/other people owe two parents is a different question than what one parent owes the other parent and the child.

A more robust support system for these cases would turn some of these couples around and cause them to have the baby anyway. I realize I’m taking the liberal line here, but it seems right, especially since it achieves a conservative goal (reducing number of abortions). But alas…our politicians.

Yeah, I agree–I’m not sure it’s necessarily the “liberal” line. It certainly serves a socially conservative end (you could also argue that not providing that kind of public funding also serves socially conservative ends, but it’s not as clear as, say, whether support for abortion is or is not “socially conservative”).

And, while it might be costly, there are also financial and other costs associated with making tort claims and costly lawsuits the primary way parents are compensated in malpractice cases (not just relatively rare cases like this one, but cases of, say, doctors negligently causing brain damage while delivering a baby, etc.). The cost of malpractice insurance for doctors, the burden on the courts–that might be dwarfed by the cost of a different kind of system but what we have now isn’t exactly cheap, efficient, or designed to serve “conservative” ends.

#10 Comment By Surly On December 12, 2013 @ 9:07 pm

Erin Manning–thank you so much for that thoughtful comment. It’s true–we are a society that forces women to kill their unborn young in order to care for themselves or other members of their families. I appreciate you not demonizing these poor parents. Your argument is the true pro-life argument–that situations like this could be used by the wrong people to deny extra help to those who DO have special needs children.

It’s against nature to kill your own offspring–but it happens when frantic, scared women can’t see any other way out. Abortion should be seen for what it is–a symptom of our horrible treatment of the least among us–and not how the “pro life” movement paints it, as callous and selfish women scheduling abortions because a pregnancy might interfere with their social lives.

#11 Comment By KC On December 12, 2013 @ 11:40 pm

Assume the parents would never have aborted but have cooked up a scheme to get needed money.

This is exactly our personal injury
legal system. Plaintiffs assert blame where they know there is none-simply sue the deepest pockets. Plaintiffs need money. They figure out a scheme to get it. Does it matter if the accused is not really at fault?

How is this different from stealing? Does it matter if the thief took the money to care for a disabled child?

#12 Comment By MikeCA On December 13, 2013 @ 1:00 am

Thomas Aquinas,with due respect, the examples you cited are unquestionably wrong by any reasonable standard; slavery,
rape,murder would be judged so by people of deep religious
faith or people of no faith. But there are sincere differences as to when life actually begins and under what circumstances abortion may be permissible. Questions like these are not black & white, there are many grey areas and I still think most people would struggle with the decision of bringing a pregnancy to term knowing that the child would be born with a
horrific malady. Perhaps you wouldn’t and I respect your POV, just as we should not judge the decision this couple may have made if they had been apprised of the test results.

#13 Comment By William Dalton On December 13, 2013 @ 10:42 am

Even more astounding than the concept of parents suing medical providers for not advising them of the need for an abortion to avoid the extraordinary expenses of bearing and raising a defective child (what is called “wrongful birth”), is the fact that some jurisdictions allow such children to sue and be awarded damages for the burden of being alive (“wrongful life”).

[2]

#14 Comment By William Dalton On December 14, 2013 @ 9:25 am

LabCorp plans to appeal this verdict:

[3]

#15 Comment By Siarlys Jenkins On December 14, 2013 @ 12:11 pm

Does it matter if the thief took the money to care for a disabled child?

It certainly does. In fact, I believe Thomas Aquinas once wrote that need could render theft moral. I have some notes somewhere, but can’t put my finger on them quickly.

#16 Comment By Chris Aubert On December 19, 2013 @ 4:07 am

If I were the doctor, I’d have said this: “I’ll tell you what – I’ll take the kid and you’ll be free from all those nasty expenses. Then, we’ll be even. Deal?”