‘Wrongful Birth” Cases Have No Easy Answers for Families or the Legal System

By Dean I Weitzman, Esq. on March 21st, 2012

A Portland, Ore., couple was awarded $2.9 million earlier this month by an Oregon court after their daughter was born four years ago with Down syndrome following prenatal testing that failed to turn up the genetic abnormality.

The couple sued after “doctors misdiagnosed their daughter as not having the condition,” according to a story on ABCNews.go.com. “Ariel and Deborah Levy of Portland, Ore., filed a ‘wrongful birth’ lawsuit against Legacy Health System, claiming that they would have terminated the pregnancy had they known they would have a special-needs child.”

The family’s lawsuit claimed that their doctors were “negligent in their performance, analysis and reporting” of test results even after the child was born, according to the story. “The $2.9 million will cover the estimated extra lifetime costs of caring for someone with Down syndrome,” the story reported.

In a statement, the hospital said that “While Legacy Health has great respect for the judicial process, we are disappointed in today’s verdict. The legal team from Legacy Health will be reviewing the record and considering available options. Given this, we believe that further comment at this point would not be appropriate.”

These kinds of cases are difficult for everyone involved, from the families, to the doctors and hospitals and the juries, judges and legal system. They are emotional, difficult cases in every way. It cuts across all kinds of issues, from abortion to religion to the value of a human life and more.

Not all states recognize the ability for someone to even sue for wrongful birth. Here in Pennsylvania, it is not a recognized cause of action.

Yet these kinds of cases do come up in the news and they raise the topic periodically so that we as a society have to consider all angles of the issue.

In 2009, another wrongful birth case in Florida resulted in a $21 million jury verdict to “a couple who claimed a doctor misdiagnosed a severe birth defect in their son, leading them to have a second child with similar problems,” according to an Associated Press story on CBSNews.com.

“The couple claimed that [their doctor] failed to diagnose their first son’s genetic disorder, called Smith-Lemli-Opitz syndrome, which is the inability to correctly produce or synthesize cholesterol, after his 2002 birth,” the story reported. “Had the disorder been correctly diagnosed, a test would have indicated whether the couple’s second child also was afflicted and they would have terminated the pregnancy, according to the lawsuit. Instead, [the doctor], a specialist in genetic disorders, told them they should be able to have normal children in the future.”

The topic of wrongful birth lawsuits was recently covered in a story, “Time to Outlaw ‘Wrongful Birth’ Lawsuits?” on the Website of news magazine, TheWeek.com.  A series of opinion pieces from various media outlets is included in TheWeek.com story, giving readers a wide array of views on the controversial and emotional topic. The views included arguments that such suits should not be allowed, that there is no such thing as a wrongful birth and that such cases would be resolved if only the nation would fix its health care system to ensure care for all.

As we said, these cases are heart-breaking and have many different facets. There may not be any firm answers, but the questions and issues they raise are worth continuing with ongoing national discussion.