On February 11, 2016, after a nine-day trial, a Montana medical malpractice jury rejected the plaintiffs’ wrongful birth claim in which the Montana couple alleged that they would have terminated the pregnancy had they been offered a genetic test for cystic fibrosis that would have disclosed that the couple were both carriers of the cystic fibrosis gene, meaning that there was a high probability that their baby would be born with the serious disease.
The plaintiffs alleged that the pregnant woman had undergone chorionic villus sampling (“CVS”) to test the fetus for certain abnormalities, which came back negative, but they were not offered information regarding screening for cystic fibrosis. The plaintiffs claimed that had they been offered the cystic fibrosis screening test, they would have had the test, which would have disclosed that they were carriers of the cystic fibrosis gene, and, with the benefit of that knowledge, they would have terminated the pregnancy.
The attorneys for the defendant OB/GYN and defendant nurse claimed that the plaintiff was given a pamphlet regarding cystic fibrosis screening during her first prenatal appointment, which the plaintiff admitted she had not read. The defense also argued that the defendant OB/GYN discussed screening options for cystic fibrosis with the plaintiff during her prenatal appointments but the plaintiff did not appear interested in having the screening performed.
One of the defense attorneys told the Montana medical malpractice jury during closing arguments, “She ignored what she was given. She ignored what she was told. And now she’s here blaming others.”
One of the plaintiffs’ attorneys told the Montana medical malpractice jury during closing arguments, “[She] asked for [a cystic fibrosis] test. She walked out of that place thinking that she was going to get that test. She had every reason in the world to trust her medical providers. She didn’t know she would have gotten better service if she went down to a Burger King.”
The plaintiffs’ lawyer asked the jury to award the plaintiffs up to $2.2 million to cover their daughter’s medical expenses until the age of 18, and at least $250,000 for the plaintiffs’ emotional distress.
The 12-person Montana medical malpractice jury deliberated for about two hours before reaching their defense verdict. The plaintiffs had settled before trial with two hospitals that had initially been named as defendants.
The purpose of a wrongful birth claim is to recover damages for the extraordinary expense of caring for the impaired or deformed child, over and above routine rearing expenses. Not all states allow wrongful birth claims.
After the jury rendered its verdict in favor of the defendants, the plaintiffs’ lawyer seemed to acknowledge the difficulty in litigating a wrongful birth case that asks a jury to award damages because a child was born with degenerative conditions, which may have appeared to the jury to be, in essence, a claim that the child should never have been born, stating, “I think [the plaintiff] is the most courageous person I know. She has born the brunt, walking through the fire of public opinion … They love their child more than anything. Who would do what she’d done but for the love of her child?”
If your baby was born with certain genetic diseases or genetic disorders that may have been discovered if appropriate genetic testing was timely done during your pregnancy, you may have the basis for a medical malpractice claim. Obtaining the prompt advice from a local medical malpractice attorney may help you decide if you should proceed with a medical malpractice case.
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