Wrongful Birth

Posted on April 30, 2009 by Greenberg & Bederman

 

Wrongful Birth

What if you went to the doctor and he didn’t give you all the facts? What if that lack of information resulted in you having to face a situation that affects you for the rest of your life?

This is the center of the argument in a so-called “wrongful birth” case, despite what others might say.

For those of you who are unaware of the circumstances that make up one of these cases, it involves a mother who has not been properly informed of a genetic deficiency or other detectable physical condition that exists in the fetus. When the fetus comes to term and is born, the genetic condition manifests itself into a severe handicap, which the mother was neither mentally nor financially prepared for because she was not properly informed.

A case like this is obviously a hot button issue, mainly because it spills over to the question of abortion, which is an ideological minefield on the best of days. But we have to look at this as an issue of the competence of the doctor rather than anything else, no matter what our feelings are on the moral end of reproductive issues.

The strides that medicine has made in terms of childbirth over the last century have been enormous. If you need concrete proof of that, you only need to visit an old cemetery, where if you examine a family plot you will see that as little as 150 years ago, many families had more dead children than live ones.

Nowadays childbirth is a much safer process, and thanks to advancements in testing we can tell if there are going to be any abnormalities in the child before it is even born. Through examining a sample of the amniotic fluid in the placenta (which is a process called amniocentesis,) doctors can easily determine whether or not the fetus is developing normally. And amniocentesis is only one of the tests.

 

But what happens if the doctor doesn’t give any tests? Or misreads the results of the test that they do give?

That’s what happened to New Yorker Donna Branca, whose doctors decided to forgo amniocentesis. The end result was that she gave birth to a child with Wolf-Hirschorn Syndrome, which, according to an article in the New York Times, results in “…mental retardation, physical disfigurement, inability to speak, seizures and respiratory and digestive problems.”

The story has a semi-happy ending in that Mrs. Branca has come to love her son regardless of his various physical ailments. But what would Mrs. Branca have done if she had all the information? Regardless of what personal thoughts people may have on the matter, if Mrs. Branca had been made aware of her situation, she would have been legally allowed to terminate her pregnancy, which would have spared her the emotional pain and financial costs of caring for the child. And make no mistake about it; raising a child with a disability is expensive. A study from UNC Chapel Hill on families with disabled children states that:

 “40 percent of the surveyed families with disabled children who earned between two to three times the federal poverty level (between $36,200 and $54,300 for a family of four, for example) experienced at least one food hardship, including worrying that food would run out or skipping meals because of a lack of money. Fifteen percent of families with incomes at three or more times the federal poverty level ($54,300 and up for a family of four) experienced housing instability, meaning they were unable to pay their rent or had to move in with others.”

Another possibility is that if she had been made aware of the condition of her unborn child she could have at least prepared herself as best as she could for the process of raising a child with Wolf-Hirschorn Syndrome.

Due to the pre-natal care of Mrs. Branca’s doctors, she didn’t have either option.

It is impossible to put yourself in the place of a woman who has to make a decision like that. Some women do take the option to terminate the pregnancy, while others do not. One particular example of a woman who took the option of giving birth to a disabled child was Alaska Governor Sarah Palin, who discovered very early on in her pregnancy that the fetus that she was carrying would be born with Down’s Syndrome.  Despite being staunchly pro-life, she wrestled with the decision herself:

She was on a trip out of state at the time, she said, and "just for a fleeting moment I thought, 'No one knows me here; no one would ever know.' ... My amniocentesis came back and then I understood why some people would think they could change their circumstances, just take care of it. Todd didn't even know" the results of the prenatal testing yet, so "no one would know."

But bear in mind, Governor Palin had options that Mrs. Branca did not. She had thorough and professional pre-natal care and accurate pre-natal testing. And it should be mentioned that as Governor of Alaska she had the financial resources to shoulder the additional expenses of raising a child with Down’s syndrome. And, most importantly, she had the time to make the decision on her own.

In any other instance of medical malpractice, the emotional and financial costs of the results of the malpractice are taken into consideration. Despite the very real and very raw emotional aspects of these “wrongful birth” cases, they have to be objectively viewed as not pro-life versus pro-choice issues, but rather as cases of medical malpractice. Was the patient given all the information needed to make a decision or was she not? Was the testing and course of care as thorough and professional as it could have been or was it not? This is what matters in a “wrongful birth” case, just as it matters in a wrong diagnosis case or a case about the violation of the consent law.

The Silver Spring, Maryland Law Offices of Greenberg and Bederman are currently accepting cases involving those who have been injured due to medical malpractice. If you or a loved one in the Washington, D.C. metropolitan area or Baltimore has been injured due to an act of carelessness by a doctor or other medical professional, contact Greenberg and Bedermanfor a free legal consultation today.

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