On March 9, 2012, an Oregon medical malpractice jury returned a verdict after a ten-day trial in the amount of almost $3 million in favor of the parents of a Down syndrome daughter that the 12-member jury determined would help cover the extra costs of caring for their daughter that the parents claimed they would have aborted had they been timely and properly advised that their fetus had Down syndrome (89% or more of parents who are advised that their fetus has Down syndrome choose to terminate the pregnancy).
What Happened In This Oregon Medical Malpractice Case?
At about the 13th week of the pregnancy, the expecting parents went to a Portland, Oregon-based medical facility where the woman had a common prenatal test known as CVS (“chorionic villus sampling”) that looks for certain chromosomal abnormalities with the fetus, such as those associated with Down syndrome, which was reported back to them as being normal.
During the following weeks, two ultrasounds indicated abnormalities with the fetus that may be associated with Down syndrome but the woman was told that the baby did not have Down syndrome. The now 4-year-old girl suffers from speech and physical disabilities for which she needs continuing therapy; future medical problems associated with Down syndrome may plague the child for the rest of her life. The child is not expected to be able to live independently or support herself during her lifetime.
The Oregon medical malpractice jury determined that the medical malpractice defendants involved with the CVS test failed to properly communicate with each other, thereby leading to the false negative test result. The medical malpractice jurors did not want to be identified during or after the trial because they feared the backlash from their decision (when the wrongful birth medical malpractice case was first filed, it drew strong and negative international attention to the parents and their claim and the parents received death threats).
Because the nature of wrongful birth claims requires that the parents allege that they would have terminated the pregnancy had they been provided with the timely and required information regarding the fetus’ deformities by their health care providers, people tend to have strong feelings regarding such claims – some question the motives of the parents or whether the parents are unloving, callous, or uncaring (or worse).
However, the economic basis for wrongful birth claims is the additional lifetime costs and expenses of caring for and raising a baby with severe physical and/or mental deformities that the parents would not have had to incur but for the negligence of the medical providers in failing to provide the parents with timely and necessary information regarding the pregnancy and/or the fetus.
Wrongful birth claims first became possible in the United States in 1973, when the United States Supreme Court legalized abortion — before then, wrongful birth claims were unavailable. Wrongful birth claims are not available in a minority of U.S. states and presently there are efforts in Arizona to outlaw them.
In those U.S. states that allow wrongful birth claims, the parents who file such claims seek to recover from the negligent health care providers the extra expenses (that is, those expenses over-and-above the usual costs of raising a healthy child) that are related to the effects of the child’s severe deformities.
If you or your family may have a claim for wrongful birth, a medical malpractice attorney can investigate the possible claim and file a medical malpractice claim on your behalf, if appropriate.
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