Wrongful Birth Bill passes in Arizona

[HQWest]

This is why I am not really clear

[AXOmom]

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.

[MysticCat]

Originally Posted by AXOmom

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.

[WCsweet<3]

Originally Posted by AXOmom

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.

I was just going to post that.

[AXOmom]

^^^Ha! Beat you to it! .

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.

[AOII Angel]

Originally Posted by AXOmom

^^^Ha! Beat you to it! .

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 does the law normally differentiate 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. In that case, 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 something?

I don't think this case takes away from your point - that these suits aren't usually attempted or won - at all. I can see that. I don't think they would have won this suit in most places, but we aren't most places. I am reminded of that daily. We still don't think people can pump their own gas- so just because they won in Oregon - means 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.

[HQWest]

Originally Posted by AOII Angel

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.

[AXOmom]

Originally Posted by AOII Angel

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.

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.

[HQWest]

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.

[HQWest]

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

[MysticCat]

Originally Posted by AXOmom

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.

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.

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?

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.

Originally Posted by AOII Angel

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.

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.

[AXOmom]

Gotcha'. Thank you for the response.

[AOII Angel]

Originally Posted by AXOmom

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.

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.

[KSUViolet06]

Funny that this topic comes up, I was just reading this wrongful birth suit article today:

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

Parents won a $3 million judgement against the doc who did the Down Syndrome screening (which they were told was negative.)

[AXOmom]

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.