Wrongful Birth Bill passes in Arizona
 

Even more shenanigans in Arizona. In essence, doctors could legally lie.

http://ktar.com/6/1510761/Arizona-Se...rongful-births

PHOENIX - The Arizona Senate has approved a bill that would shield doctors and others from so-called ``wrongful birth'' lawsuits.

Those are lawsuits that can arise if physicians don't inform pregnant women of prenatal problems that could lead to the decision to have an abortion.

The Senate's 20-9 vote Tuesday sends the bill to the state House.

The bill's sponsor is Republican Nancy Barto of Phoenix. She says allowing the medical malpractice lawsuits endorses the idea that if a child is born with a disability, someone is to blame.

Barto said the bill will still allow ``true malpractice suits'' to proceed.

If the bill becomes law, Arizona would join nine states barring both ``wrongful life'' and ``wrongful birth'' lawsuits.

I am a pro-lifer and I don't even think this is kosher. :mad:

I'm not sure why you're saying this.

Here is the text of the bill. Arizona Senate Bill 1359.

The act says clearly: "THIS SECTION DOES NOT APPLY TO ANY CIVIL ACTION FOR DAMAGES FOR AN INTENTIONAL OR GROSSLY NEGLIGENT ACT OR OMISSION, INCLUDING AN ACT OR OMISSION THAT VIOLATES A CRIMINAL LAW." A lie is an intentional act, so the act wouldn't preclude an action based on that. It also wouldn't preclude a malpractice claim for gross negligence.

Not saying the law is good or bad policy, but it doesn't seem as broad to me as some of the headlines are trying to make it out to be.

Not that it was particularly likely to happen in any case, but now I will definitely never move to Arizona. I don't care if I was offered the greatest job ever or what. Too scary.

It kind of does leave the Plaintiff in a position of having to find a really damaging smoking gun though and it would appear that for the most part, "oops" would be a pretty good defense for a doc who missed something or chose to miss something.

It makes me wonder who actually benefits from this bill besides some of the docs...insurance companies? local governments?

It's not about who the law benefits anymore, it's about scoring points in the quest to remove the ability to make healthcare decisions from individual women.

It's unethical for a physician NOT to tell a patient a finding that would change their decision making process. This law directly effects MY practice since I am a radiologist in Arizona. As physicians, we moved away from the paternalistic model of medicine decades ago. Having lawmakers legislate a return to that model with a guarantee of no malpractice liability is outrageous. My responsibility to to first do no harm, not first cause myself no liability. I'm also outraged that the medical society for which I am a member did not speak out about this bill.

Quite possibly. But that's different from saying it allows the doctor to "legally lie," which is what DS (and a number of articles I found) said. That "oops" factor is going to be there regardless of whether this act becomes law or not.

Perhaps I hadn't had enough caffiene when I responded earlier, but I guess I'm just not seeing this as being as far-reaching as some are making it sound. And frankly, I don't think is a clear-cut issue at all -- there are some serious ethical and jurisprudential considerations to work through, especially with wrongful life claims.

Some things need to be clarified. The article says "If the bill becomes law, Arizona would join nine states barring both 'wrongful life'' and 'wrongful birth' lawsuits." That's a bit misleading. So far as I know, only a handful of state courts (most notably California) have allowed "wrongful life" suits to go forward. By contrast, many courts have refused to recognize "wrongful life" as a legally cognizable claim. The reality is that recognizing "wrongful life" as a valid legal claim is, I think, very, very much the minority view.

As for wrongful birth, last I knew only about half the states recognize wrongful birth claims, and as far I know no court has allowed damages to go past actual economic damages. The other half either have refused (judicially) to recognize it and/or have statutes barring it, or haven't considered the question yet.

So the eight states the article seems to refer to would be eight states that have statutes barring both wrongful birth and wrongful life lawsuits. But there are many more states where the courts have refused to recognize such claims.

In addition, the article says "Those are lawsuits that can arise if physicians don't inform pregnant women of prenatal problems that could lead to the decision to have an abortion." I'm not aware of any court that has ever held that parents can recover damages based on a claim that if the doctor had not been negligent and had explained things to them fully, they would have terminated the pregnancy. I've done a little bit of looking this morning and I haven't found any such cases. Courts don't like to say it would have been better had the child not been born.

In those jurisdictions where wrongful birth claims have been recognized, what courts have allowed is damages resulting from a physician's negligence for expenses related to the pregnancy, childbirth and care of the child. And that raises a basic legal question: If what people are talking about with this bill is genetic problems, deformities or the like, and if the issue is the physician's failure to fully inform the parents so that they could make informed decisions, then there is a basic legal problem of causation. The physician's negligence didn't cause the genetic problem or deformity, so the physician can't be held legally responsible for the medical condition(s) at issue. (This, I think, is the "blame" factor that the Arizona senator was talking about.) So that leads to a question of what actual damages were actually caused by the physician's negligence rather than by the medical condition(s).

Like I said, this is a thornier issue, at least from a legal perspective, than the article would lead readers to believe.

Maybe it's because it is Friday and my brain is not working yet. What is 'wrongful life'?

"Wrongful life" is when the child (perhaps through a guardian ad litem) sues a physician for failing to prevent the child's birth and seeks to recover damages for all the expenses (medical, educational, etc.) needed as a result of whatever medical condition the child has. The gist of the claim is "I would have been better off had I not been born." Otherwise, it is a more basic negligence/malpractice claim, not a wrongful life claim.

"Wrongful birth" is when the parents sue.

Wow. I didn't know you could even do this. I am speechless.

Wrongful life has been used to try to recover expenses for a child born with severe defects that needs lifelong care. What really concerns me about this law is that it appears to say that physicians do not need to tell the parents about the possibilities of one of these problems if they think that it would lead to the parents wishing to abort the pregnancy. Where it becomes fuzzy is if the law is intended to protect the doctor from being sued if he does not mention one of these problems or is not firm enough with how serious a situation is or if it is meant to encourage doctors to not mention specific things in an effort to reduce elective abortions.:mad:

I do not think I would do it, but I I could totally understand why someone faced with a child with the kinds of severe defects that they are talking about (Edward's syndrome, microencephaly, etc.) would be concerned with the health risks of carrying a child to term.

That's the case for "wrongful life" and "wrongful birth" both. The difference is that in wrongful birth, it is the parents who are seeking to recover the damages on the theory that, but for the physician's negligence, they would not have incurred or could have mitigated in some way those expenses, while in "wrongful life," it is the child who is claiming essentially that but for the physician's negligence, he or she would not have been born and therefore would have avoided suffering -- that being born is in and of itself an injury.

Like I said, as it is the number of jurisdictions that currently recognize wrongful life claims can pretty much be counted on one hand, so statutorily barring those claims in Arizona is not a huge shift in the status quo.


I really don't get that at all from the bill.

This is the entire text of the bill (the all caps are in the original):

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 12, chapter 6, article 12, Arizona Revised Statutes, is amended by adding section 12-718, to read:

12-718. Civil liability; wrongful birth, life or conception claims; application

A. A PERSON IS NOT LIABLE FOR DAMAGES IN ANY CIVIL ACTION FOR WRONGFUL BIRTH BASED ON A CLAIM THAT, BUT FOR AN ACT OR OMISSION OF THE DEFENDANT, A CHILD OR CHILDREN WOULD NOT OR SHOULD NOT HAVE BEEN BORN.

B. A PERSON IS NOT LIABLE FOR DAMAGES IN ANY CIVIL ACTION FOR WRONGFUL LIFE BASED ON A CLAIM THAT, BUT FOR AN ACT OR OMISSION OF THE DEFENDANT, THE PERSON BRINGING THE ACTION WOULD NOT OR SHOULD NOT HAVE BEEN BORN.

C. THIS SECTION APPLIES TO ANY CLAIM REGARDLESS OF WHETHER THE CHILD IS BORN HEALTHY OR WITH A BIRTH DEFECT OR OTHER ADVERSE MEDICAL CONDITION.

D. THIS SECTION DOES NOT APPLY TO ANY CIVIL ACTION FOR DAMAGES FOR AN INTENTIONAL OR GROSSLY NEGLIGENT ACT OR OMISSION, INCLUDING AN ACT OR OMISSION THAT VIOLATES A CRIMINAL LAW.

Section A deals with "wrongful birth," and it seems to specifically prohibit claims based on the contention that absent the negligence, the child in question would not or should not have been born. That is not the same as claiming that absent the negligence, the parents would not have incurred the expenses they did, which can also fall under the term "wrongful birth." Like I said earlier, I'm not aware of any court that has allowed a claim based on the contention that the child should not have been born, so if that is the extent of this section of the proposed law (as it seems to be), then it's not really plowing any new ground at all.

Section B deals with "wrongful life," and again as I said, courts in only a few states have allowed such claims. (And I don't think Arizona is one of those states. Its neighbor, California, is.) Again, no new ground here.

Section D makes clear that civil actions can still be brought for intentional acts or for gross negligence. This leaves the door open for malpractice claims. (Ordinary negligence is basically failing to do what a reasonable person [doctor] would do under similar circumstances. Gross negligence is a conscious disregard of one's duty to another that is likely to result in foreseable injury.) A physician who makes the decision not to provide parents with relevant information because he or she is concerned that the parents might elect to terminate the pregnancy would, at least in my view, be acting intentionally or be guilty of gross negligence. If that's the case, this proposed law wouldn't bar claims against the doctor.

This is why I am not really clear :confused:

http://www.oregonlive.com/portland/i...d-area_co.html

Interestingly, this story made our front page today. It appears the award was, as MysticCat noted, for the amount of care estimated this child would need.

Interesting story. Thanks for sharing it.

I note that it does specifically say that the couple claimed they would have terminated the pregnancy had they known, though I'd be interested to know whether that accurately reflects the complaint itself -- if it does, then that shoots a big hole in the understanding I had that such claims usually don't get far. (Though again, the story does say that claims like this usually don't get far.)

But as you note, damages seem to have been limited to care expenses, not pain and suffering or the like, which does seem to be more in line with my understanding of how these cases go.

I should have said upfront that I live in a state whose Supreme Court has said that a valid claim cannot be stated for wrongful birth, so I have no firsthand experience with it. For anyone who is interested, this article has quite a bit of detail on wrongful birth, wrongful life and wrongful conception (which my state's Supreme Court has recognized) claims and how they have been treated by courts. And a lot of ink has been spilled on the ethics and jurisprudential issues raised by these claims.

I was just going to post that. :p

^^^Ha! Beat you to it! :p.

MysticCat - The print version of this article was either more thorough, or I couldn't get the entire online version to come up - not sure which, but in the print version, the parents did say, they would have terminated the pregnancy if they had known. I have ethical issues with that since I am, like ThetaPrincess24, pro-life, but since she is alive and well, and the lab apparently did make a mistake, I do understand that regardless of my personal feelings on it, it is legal and in this case because of a lab screw up they didn't have the information they needed to make a decision and now her medical costs need to be covered - so I'm a little torn on how this should have been resolved.

I have a legal question for you - In medical malpractice I have assumed the law normally differentiates between understandable mistakes - i.e. the idea that no doctor, nurse or lab is going to be 100% correct, sloppy mistakes that should not be made, and reprehensible mistakes where it was obvious something bad would happen (i.e. doctor operating while intoxicated)- a negligent homicide situation. In this case it seems like this lawsuit was the first situation - the lab isn't going to be 100% correct all the time. Because of that it's hard for me to see how they won this suit other than the jury felt sorry for their situation (which I would as well, but we aren't supposed to make legal decisions that way). Am I missing a legal point here or misunderstanding the situation in some way?

I don't think this case takes away from your point that these suits aren't usually filed or won. We're a flukey state - we still don't let people pump their own gas - so winning here would mean nothing in 49 other states.

Um...that's clearly malpractice. If you have a chromosomal test for Down Syndrome that is negative, and you have a child with Down Syndrome, some one made a major mistake. That's not a little whoops. That's a gotta get it right 100% of the time kinda test.

There must be more to this story. The odd thing is they didnt do the amnio - or even recommend the amnio - which is still only right 99 percent of the time.

The case i had read before on wrongful life previously were much more severe - I think Edwards syndrome not Downs syndrome.

Point taken - but when I reread the article it stated that there was testimony on behalf of the defendent (Legacy) that indicated the test was done properly but it didn't show up as Down's because the child has mosaic downs which, according to those experts testifying for the defense (have no idea if this is true or not - you would have to tell me), wouldn't necessarily show up on the test because her cells don't always carry the extra 21st chromosome.

The information I looked up indicated that the CVS test which is what the lab did is 98% -99% accurate - which is a great rate, but not a perfect rate, so I would assume that means there is a margin for error somewhere. Is this information accurate by the way - is that the accuracy rate for that test?. I don't know if someone has legal grounds to sue (this is where I wanted some legal clarification from MysticCat) if they get an inaccurate result on a test and there is no obvious error on the part of the lab/doctor when the test doesn't claim to be 100% accurate.
Perhaps they do - I have no idea - I'm interested to know.

Also, I don't know whether or not the parents were aware that there was a 1-2% chance the test could be wrong - of course if they weren't told, they have grounds to sue, but if they knew there was even a small chance the tests could be wrong - then it would seem to me they have less legal ground to stand on.

According to the article the parents argument is that the mistake the doctor made was to collect and use cells from the mother's uterine wall instead of cells from the child, and if that's the case, then a suit makes sense, but the doctor/lab of course, deny this and the article doesn't go into what evidence there was to support either side's position. It didn't sound like there was certain evidence either way. I realize civil actions don't carry the same burden of proof. As I understand it, with a 98-99% accuracy rate, the lab and doctor could have done everything correctly and still had a 1%-2% chance that the test would be inaccurate. Is that correct?

What I would also be curious to know is if, given this, the doctor recommended a second test to be sure. The article doesn't state whether that happened and I could see that being a basis for a suit as well, but again, I have no idea- what is the medical standard for that - Do they routinely do a second test to ensure accuracy? Also - as HQWest suggested - is it standard in these cases to recommend an amnio if the test comes back negative?

Sorry to barrage you (and MysticCat) with so many questions, but I know newspapers aren't capable of giving complete information and I really would like to know more about the issues surrounding this case.

The article said the doctor didnt recommend the amnio - which is weird. I thought it was weird also that they were not allowed any leeway on the First test.

Ohio lawmaker wants men to think twice about Viagra
 

Then there's this -

http://http://www.imperfectparent.co...-about-viagra/

Men would need a second opinion to verify the problem and talk about alternatives (for example weight loss) before getting a prescription

The online version did too. It's just that as you said, news articles can't cover everything, and I've had enough experience of reading articles about my own cases and scratching my head, saying "that's not what this case is about." I've learned not to rely on a news source (unless it's somebody I know knows what they're talking about, like Nina Totenberg) to know what the claims in a case are.

This isn't my area of practice, so another lawyer or one of the doctors here can probably answer this better than I, but I think the standard is whether the doctor failed to follow generally accepted standards of care. I understand AOII Angel to say this would fit that bill.

And since this is clearly malpractice, that's why I think the Arizona bill doesn't go as far as some would claim.

I think "wrongful birth" is sometimes used to cover a variety of kinds of claims. It seems that the Arizona bill limits itself to very specific claim of "but for I would have terminated," but leaves open the avenue of malpractice claims.

Gotcha'. Thank you for the response.

Good investigation, AXOMom. 98-99% is as good as 100% in medicine. The error is not with the test in this situation, but with the sampling. I don't actually see how the lab is involved in the suit at all considering they only test what they receive. Interesting that the child is a Down Mosaic as that is rare, but yes, that could effect the results but to prove it you'd have to biopsy the child to prove which tissue did or did not have the extra chromosome. This point would be moot if the child was a boy, but since it is a girl, the question remains, did the doctor just submit the mother's DNA. As others have, pointed out, the doctor never ordered a amnio despite receiving additional information that pointed to Down Syndrome. The article doesn't tell us what those are, but there are different markers in ultrasound that are more or less likely to indicate Down Syndrome. This in hindsite is what killed the case for the physician. My last point is that in medical malpractice, proof is is not always needed. Juries don't understand medical evidence. Suspicion and innuendo is often enough. Then again, I have seen legitimate malpractice go unpunished, but it is really hard to determine when real malpractice has occurred when you have medical knowledge much less when you have no advanced education which is typical of a jury of your peers.

Yep - that's the article link I posted above that we've been discussing. Really interesting case.

Thank you AOP Angel for your response as well and for taking the time to answer my questions (numerous as they were -LOL). It definately helped me understand the situation a little more fully.

No problem. Such a sad case. I admit I didn't fully read the article the first time I posted so I didn't see the intricacies of the case. I stopped after the findings of the jury. Very interesting case. Medical decision making can be very difficult and malpractice occurs even when everyone has the best intentions. Some of the things the jury found that I noted, however, was that there was poor communication between the lab and the physician. There may have been a different outcome had the lab communicated to the physician and the physician to the patient that the sample was too small thus limiting the results. This lack of communication gets so many practitioners in trouble in malpractice situations. We are all busy, but proper communication saves a lot of heartache, money and pain later. I spend a LOT of time calling referring physicians, speaking to patients and DOCUMENTING these conversations. Older physicians have a hard time understanding the importance of this concept.

This all reminds me that whenevery I have lab tests done in the future, I will ask questions. My doctor is getting up there - but even though I complain about her tendancy to go overboard on occassion (IMO) - I'm glad she's the double check everything, do tests twice if something comes up weird, and dig until you get to the bottom of it and figure it out type.

Agreed on the other point - sad case indeed.

Am I the only one put off by the "better to be dead than disabled" implications of these laws and cases? I can kind of see the reasoning for something like Tay Sachs where the lifespan is only a few years, but Down Syndrome isn't terminal (yes, I'm aware of the higher risk for heart deficits, early onset Alzheimer's, and leukemia, but those are still issues that, AFAIK, affect a minority of people with DS, and *everyone* is at some risk for those things, some moreso based on family history/genetics.).

I too am bothered by this. Just as it bothers me that the legislature felt there was enough need to make a law on this. Tay Sachs or Edwards syndrome I can kind of understand - at that point one might start weighing the risks in child birth to the mother versus a child with a very short expected lifespan and low quality of life.

The other thing that bothers me is that they could have checked this with the amnio, but there is a risk to the child with an amnio too.

That's why it is the choice of the parents. Not every person is able to handle being a special needs parent. Hell, not everyone is able to handle being a parent at all.

This!!! Best Words of Wisdom of the Day Award Winner!!!!!

As I mentioned in one of my previous posts - I am concerned about it from an ethical standpoint and yes it does bother me, but it is a decision these parents can legally make, and given that, I was curious about legal issues relating to this case and how they relate to the Arizona law....or proposed law.

No. That's one of the reasons that the courts are so reluctant to recognize wrongful life claims -- they are reticent to suggest that no life is better than life.

That's for sure.

I personally find it to be quite disturbing, not just for the implications now but also in the future. What sort of Pandora's box are we opening here? Will it be acceptable in the near future to terminate a pregnancy because the child may be born deaf, or may develop ADHD, or born a gender unwanted by the parents? My mother was born with a physical handicap and the idea that someone would think she would have been better off never being born makes me sick to my stomach.

Check hb2625

Scroll down to the red section to see what was proposed.

An employer could fire a woman if she used contraceptives.

http://www.azleg.gov//FormatDocument...Session_ID=107