In this next section of Chapter 3’s exploration of how abortion is inextricably intertwined with prenatal genetic testing, I cover my profession’s contribution to the pressure obstetric practitioners feel compels them to offer prenatal genetic testing and counsel regarding abortion: the threat of a wrongful birth lawsuit.
As mentioned in Chapter 2, ACOG recommended AFP screening in response to a wrongful birth judgment. Wrongful birth claims track the traditional tort elements for negligence:
- There is a duty;
- That duty is breached;
- The breach of that duty is the proximate cause of damages suffered by the plaintiff; and
- There are indeed damages that the plaintiff suffered.
ACOG’s response to the first wrongful birth lawsuit, and its guidelines since, are what have established the first two elements of the claim, but the last two elements remain targets for criticism. ACOG’s guidelines are routinely cited in lawsuits as establishing the medical standard of care, i.e. the “duty”, and if a practitioner does not follow those guidelines, then he or she has breached that duty. But, is that breach the “proximate cause” of a child having a disability and how do you calculate damages based on that breach?
Until the Supreme Court ruled in Roe v. Wade that there is a constitutional right to abortion, there were no wrongful birth claims based on prenatal testing. This is because there was no legally recognized alternative the parents were denied due to the lack of offering, or the misreporting, of prenatal testing.
In one of the first cases to recognize these claims, the court candidly made the distinction concerning what was lost by, in that case, the laboratory’s failure to provide accurate test results. Whereas a pregnancy terminated because of the threat it posed to the mother’s health is considered a “therapeutic abortion,” for those terminations based on the genetic make-up of the child, the court plainly stated that these were “eugenic abortions.”
In recognizing these causes of action, courts justify them for encouraging accurate genetic testing and counseling by physicians and laboratories for “the individuals involved and to society as a whole.”[i] (emphasis added). As stated by the California Court of Appeals:
We have alluded to the monumental implications of Roe v. Wade, … one of which is the present legality of, and availability of, eugenic abortion in the proper case. Another factor of substantial proportions in “wrongful-life” litigation is the dramatic increase, in the last few decades, of the medical knowledge and skill needed to avoid genetic disaster. … Genetic defects represent an increasingly large part of the overall national health care burden.”[ii]
The societal implications and the candid use of “eugenics” will be explored in later chapters, but here, our focus will remain on the tort of wrongful birth.
Though a majority of jurisdictions recognize the claim, it is by a slim margin: 27 states along with the federal courts recognize wrongful birth, but, by last count, 23 do not or have yet to rule on it. Among those states that have considered the issue through the democratic process of their elected representatives debating and voting on the claims, almost all of them have passed laws NOT recognizing the tort of wrongful birth (California and Maine are the two outliers, statutorily recognizing wrongful birth as a viable claim). In those courts and states not recognizing the claim, it is almost always due to the last two elements being problematic.
There are lawyers throughout the nation who advertise themselves as “wrongful birth attorneys,” erecting billboards and proudly displaying on their websites content similar to this:
At O’Connor, Parsons & Lane, we know that no parent wants to make the heartbreaking decision about whether to terminate a pregnancy or bring a severely disabled child into the world. But parents do have the right to know the facts, and doctors and medical laboratory professionals have a responsibility to perform proper tests and inform the parents of the results.
If your baby was born with Down syndrome, talk to the New Jersey wrongful birth lawyers at O’Connor, Parsons & Lane. Contact us at 800-586-5817, 908-928-9200 or email us. The initial consultation is free.
The logical breakdown in the wrongful birth analysis occurs at element three. Not offering or incorrectly reporting lab results from a prenatal test in no way causes the tested-for condition. Particularly in the case of genetic conditions like Down syndrome, these occur at or near in time to conception and there remains no treatment available for genetic conditions prenatally. As a result, while, according to ACOG guidelines, obstetricians are to offer prenatal genetic testing to all patients, if an OB fails to do so, it does not proximately cause the child having Down syndrome or another tested-for condition.
Wrongful birth lawyers and the judges who have upheld wrongful birth judgments attempt to clear this causation hurdle by skipping to the fourth element of damages which the doctor “caused” by denying the parents the opportunity to abort their child if they had known prenatally of the child’s condition. This, however, has been criticized by courts not recognizing the claim of wrongful birth. As one state supreme court justice noted in a concurring decision:
If one plaintiff says she would have had an abortion, she can sue the doctor. If another plaintiff says she would not have had an abortion, she cannot sue. Both women exercise their right of choice, both have a handicapped child, but only one has a cause of action for compensatory damages. The woman who chooses not to have an abortion is penalized unless one assumes, contrary to the assumption of the wrongful birth rationale, that the birth of a handicapped child is not an injurious harm cognizable in tort law.[iii]
Regarding the final element of damages, courts are “all over the place.”[1] Some courts find the compensable harm being the additional costs necessitated by the child’s medical condition as compared to the costs of a “normal child” the parents may have had.[2] This has led parents to introduce their child as an exhibit of the claimed “harm.”[3] Other courts have defined the harm, however, as denial of informed consent, e.g. the doctor’s negligence denied the parents the opportunity to avoid the birth of their child.[4] Damages for this tort against personal autonomy have included the parent’s emotional distress, but, more often than not, claims for personal autonomy have resulted in just nominal damages being awarded.[5]
Courts that have recognized the claim of wrongful birth further justify it as promoting better patient care. As the New Jersey Supreme Court said in recognizing wrongful birth: “[a]ny other ruling would in effect immunize from liability those in the medical field providing inadequate guidance to persons who would choose to exercise their constitutional right to abort fetuses which, if born, would suffer from genetic defects.”[iv] On the other hand, the threat of litigation has also been criticized for fostering the practice of defensive medicine, which results in unnecessary costs being incurred for unwarranted tests and procedures.[v] Moreover, claims of wrongful birth have been criticized for negatively impacting the obstetric practice in states that recognize these claims by driving up medical malpractice insurance costs and reducing the number of obstetric professionals willing to practice in those jurisdictions.
Still, with the majority of jurisdictions recognizing wrongful birth, it has resulted in a professional culture that makes sure they counsel their patients about prenatal testing and abortion out of fear of a wrongful birth lawsuit. Indeed, I have had many practitioners tell me they offer prenatal testing “or else I’ll be sued” even though they practice in states where wrongful birth is not recognized.
[1] Wilson v. Kuenzi, 751 S.W.2d 741, 744 (Mo. 1988)
[2] Jeffrey R. Botkin, Prenatal Diagnosis and the Selection of Children, 30 Fla. St. U.L. Rev. 265, 276 (2003) .
[3] Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 172 (2005) (citing Thornhill v. Midwest Phys. Ctr., 787 N.E.2d 247, 261 (Ill. App. Ct. 2003)).
[4] Pillar N. Ossorio, Prenatal Genetic Testing and the Courts, 323-24 in Prenatal Testing and Disability Rights (Erik Parens and Adrienne Asch ed., 2000) (citing Provenzano v. Integrated Genetics, 22 F.Supp.2d 406 (1998); Kathleen Mahoney, Note, Malpractice Claims Resulting from Negligent Preconception Genetic Testing: Do These Claims Present a Strain of Wrongful Birth or Wrongful Conception, and Does the Categorization Even Matter?, 39 Suffolk U.L. Rev. 773, 780 (2006) (citing Keel v. Banach, 624 So.2d 1022 (Ala. 1993); Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691 (Ill. 1987)); see also Mark Strasser, Misconceptions and Wrongful Births: A Call for a Principled Jurisprudence, 31 Ariz. St. L.J. 161, 165 (1999) (arguing that a claim could be made even where mother would not have aborted because failure to diagnose deprived her of the ability to prepare for the birth of a child with a disability) (citing Berman v. Allan, 404 A.2d 8, 17-18 (N.J. 1979) (“Through the failure of the doctors to advise an expectant mother, and father, of the likelihood or certainty of the birth of a mongoloid [sic] child, the parents were given no opportunity to cushion the blow, mute the hurt, or prepare themselves as parents for the birth of their seriously impaired child.”); Canesi v. Wilson, 158 N.J. 490, 514-15 (1999) (“the appropriate inquiry was viewed as whether the defendant’s negligence was the proximate cause of the parents’ loss of the option to make an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child.”); Viccaro v. Milunsky, 551 N.E.2d 8 (1990)); see also Hensel, supra note 3, at 166 (“If lost choice is truly the injury, then this loss occurs at the moment that the door to an abortion has closed, regardless of which choice ultimately would have been exercised. Consequently, the mother who would have aborted and the mother who would have continued the pregnancy have suffered the identical negligence and the identical injury, although not identical damages.”).
[5] See Dobbs,
supra note 123, § 292, 795-796; Provenzano, 22 F.Supp.2d at 419
(concluding plaintiff could recover emotional distress damages even where
plaintiff did not offer evidence as to whether she would have had an abortion);
Canesi, 158 N.J. at 507 (“plaintiffs
… disclaim damages for the defect itself and insist that they seek to recover
only for their injuries as parents, i.e., their own mental and emotional
anguish at having lost the opportunity to decide for themselves whether or not
to terminate the pregnancy and the special expenses incurred in rearing a child
with an impairment.”); Shelton v. St.
Anthony’s Med. Ctr., 781 S.W.2d 48, 49 (Mo. 1989) (finding that while
statute barred claims “that but for negligent conduct of another, a child would
have been aborted,” but nonetheless permitting emotional distress damages in
mother’s claim for medical malpractice for physician’s failure to correctly
interpret ultrasound.); Basten, 848
F.Supp.2d at 972; Keel v. Banach, 624
So.2d at 1030; but see, Rogers, supra note 132, at 751-52 (noting courts
have permitted and disallowed recovery of emotional distress damages and
arguing that when the benefits rule is applied, as they are “essentially
emotional in nature, the principle would seem to apply primarily to the
parents’ mental suffering and emotional damages.”). See Stein, supra;
see also Wendy F. Hensel, The Disabling Impact of Wrongful Birth and
Wrongful Life Actions, 40 Harv.
C.R.-C.L. L. Rev. 141, 188 (2005) (“If lost choice is truly the injury,
then this loss occurs at the moment that the door to an abortion has closed,
regardless of which choice ultimately would have been exercised. Consequently,
the mother who would have aborted and the mother who would have continued the
pregnancy have suffered the identical negligence and the identical injury,
although not identical damages.”).
[i] Curlander v. Bio-Science Laboratories, 165 Cal.Rptr. 477, 488 (Cal.Ct.App. 1980) (emphasis added); “An abortion undertaken to prevent the birth of a genetically defective child is term[ed] ‘eugenic’ while one to prevent harm to the mother-to-be is termed ‘therapeutic.’” Id. at 480 n.6.
[ii] Id.; see Hensel, supra at 178 (“Scholars have urged the adoption of widespread genetic testing as a means of reducing the burden on American health care. Advocates of state-wide screening programs, for example, have employed a cost-benefit analysis comparing the price of the testing to the societal burden of raising children with defects, and the National Institute of Health has long stated that the birth of impaired children is avoidable with ‘good genetic counseling and risk assessment.’”) (citations omitted).
[iii] Hickman v. Group Health Plan, 396 N.W.2d 10, 15 (Minn. 1986) (J. Simonett, concurring).
[iv] Berman v. Allan, 404 A.2d at 14. Interestingly, the quote is from a case where the New Jersey Supreme Court reversed itself, though no evidence was admitted showing an increase in inadequate care under the prior ruling not recognizing the claim of wrongful birth.
[v] Marsha Saxton, Why Members of the Disability Community Oppose Prenatal Diagnosis and Selective Abortion, in Parens & Asch, at 155 (“[P]hysicians’ fear of wrongful life and wrongful birth suits became a ‘reason to test’ and routine prenatal testing is built into the standard of care as a way to protect physician interests, unrelated to patient concerns.”); Michael Malinowski, Coming into Being: Law, Ethics, and the Practice of Prenatal Genetic Screening, 45 Hastings L.J. 1435, 1504 (1994) (“Legal liability is presently the most profound force working to transform advanced prenatal genetic screening technology into a standard component of prenatal care.”).
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