Wrongful Birth Bill passes in Arizona

[DaemonSeid]

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.

[ThetaPrincess24]

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

[MysticCat]

Originally Posted by DaemonSeid

In essence, doctors could legally lie.

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.

[DSTRen13]

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.

[Kevin]

Originally Posted by MysticCat

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.

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.

[DaemonSeid]

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

[agzg]

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.

[AOII Angel]

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.

[DZsis&mom]

Originally Posted by AOII Angel

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.

http://j-walk.com/images/applause.gif

[MysticCat]

Originally Posted by Kevin

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.

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.

[Mevara]

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

[MysticCat]

Originally Posted by Mevara

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.

[Mevara]

Originally Posted by MysticCat

"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.

[HQWest]

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.

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.

[MysticCat]

Originally Posted by HQWest

Wrongful life has been used to try to recover expenses for a child born with severe defects that needs lifelong care.

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.

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.

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.