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Wrongful Birth — Updated July 24, 2007

Posted by Sobek in Law.

A Florida couple was just awarded $21 million dollars by a jury in a “wrongful birth” case.

The couple claimed that Dr. Boris Kousseff 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.

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.

Wow. More commentary to follow…

Update below the jump

Courts are seriously split about the rights of unborn children. For example, Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901 (1969), involved a car accident in which a woman’s two unborn children were injured, and then delivered stillborn. The New York court held that the unborn children had no right to recover in a wrongful death action, because in order to “die,” one must first be born alive, and these fetuses never were. “[T]he law has never considered the unborn foetus as having a separate ‘judicial existence’ or a legal personality or identity ‘until it sees the light of day.'” Judge Burke, dissenting, noted that the rule created an anomaly: “For example, a doctor or midwife whose negligent acts in delivering a baby produced the baby’s death would be legally immune from a lawsuit. However, if they badly injured the child they would be exposed to liability.”

Starting in 1946, Courts have overwhelmingly recognized lawsuits for injured fetuses who are born alive. Today, a majority recognizes a wrongful death claim for an unborn child (in at least one state, Massachusetts, the issue turns on whether the fetus was viable at the time of injury). Some states even allow claims for injuries to the mother before conception that result in damage to the child, such as an 8th Circuit case where a woman’s botched caesarian in one pregnancy caused brain damage to the fetus in her next pregnancy.

In Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984), the court addressed a “wrongful life” claim. The doctors negligently failed to diagnose that the mother had contracted German measels during the first trimester, so the child was born with congenital rubella syndrome. The child was born with eye lesions, heart disease, and auditory defects. “Alleging that the doctors negligently deprived his parents of the choice of terminating the pregnancy, he seeks general damages for his pain and suffering and for ‘his parents’ impaired capacity to cope with his problems.’ He also seeks special damages attributable to the extraordinary expenses he will incur for medical, nursing, and other health care.”

The New Jersey court allowed the claim. It had previously upheld the right of parents to recover anticipated future medical expenses (“wrongful birth”), and it extended the law to allow the child itself to recover for birth defects caused by another (“wrongful life”). The court rejected the reasoning in a previous case that “[m]easurement of ‘the value of life with impairments against the nonexistence of life itself’ was … a logical impossibility.” But the court also noted that the issue of damages was a real one, and declined to allow general damages — only the cost of extraordinary medical expenses were available. By contrast, a New Hampshire court in Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986), rejected wrongful life claims, noting that it “has no business in declaring that among the living are people who should never have been born.”

It appears that very few jurisdictions allow an action for wrongful life, such as California, Washington and New Jersey. Nevada does not allow a wrongful life action. See Greco v. U.S., 111 Nev. 405, 893 P.2d 345 (1995)(but allowing an action for wrongful birth, which is merely a species of medical malpractice). Some state legislatures have passed laws forbidding the claims.

Another interesting line of cases are called “wrongful pregnancy” cases, where the woman has conceived because of the negligence of the defendant. The child is not necessarily handicapped, but is not wanted. For example, a Massachusetts court allowed a wrongful pregnancy action in Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990), in which a man was not informed of the risk of recanalization after a vasectomy, and a Wisconsin court allowed an action in Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990), in which a doctor botched a “laparoscopy with bilateral fallopian tube cautery.” Both cases allowed not only the costs of the childbirth and related medical procedures, but also the costs of raising the children when the reason for the sterilization was economic.

Finally, I will mention the very curious case of Martinez v. Long Island Jewish Hillside Med. Ctr., 70 N.Y.2d 697, 512 N.E.2d 538 (1987). A woman asked her doctor whether a certain medication, taken early in her pregnancy, had adversely affected her fetus. The doctor ran some tests and determined the baby would be born with either microcephaly (a small brain) or anencephaly (no brain). The woman generally believed that abortion is a sin, but justified under certain circumstances such as severe physical problems like those incidental to microcephaly, so she decided to have an abortion. After the procedure, she learned that the doctor had misdiagnosed her, and that the baby would have been fine. She sued for emotional distress, and the New York court allowed the lawsuit.


1. eddiebear - July 24, 2007

I sense John Edwards may pay this guy a visit.

All kidding aside, how ghoulish can you be, wanting to abort a child knowing it would have a problem?

2. Mr Minority - July 24, 2007

I question the timing.

3. sobek - July 24, 2007

“…how ghoulish can you be, wanting to abort a child knowing it would have a problem?”

Let’s ask Ruth Bager Ginsburg’s dissent in the latest abortion decision: “Several fetal anomalies and health problems confronting the pregnant woman are also causes of second-trimester abortions; many such conditions cannot be diagnosed or do not develop until the second trimester … nearly all women carrying fetuses with the most serious central nervous system anomalies chose to abort their pregnancies.” Gonzales v. Carhart, Ginsburg dissent at n. 3.

Therefore, the Constitution protects the right to an abortion because we can’t have a bunch of defective babies around. Gotcha.

4. Slublog - July 24, 2007

When this kid gets old enough to understand what’s going on, imagine how he’s going to feel knowing his parents not only wanted him dead, but wanted him dead so badly they were willing to sue when they couldn’t do it.

5. kevlarchick - July 24, 2007

And set up a designated fund so all that money goes to treat the kid. Nowhere else.

And two more words: birth control. Or will you just keep trying and aborting until you get the one you want?

6. Dave in Texas - July 24, 2007

Boy, Slubs, you just cut to the nut there pal.

Kid, meet issues.

7. eddiebear - July 24, 2007

And it’s not as though people with one problem can’t be proficient elsewhere. Just ask Stephen Hawking

8. Bart - July 24, 2007

This doctor’s name is a little too close to Boris Karloff, if you ask me.

9. BrewFan - July 24, 2007

Just ask Michael.

10. Wickedpinto - July 24, 2007

On the abortion side, I won’t comment, I’m very conflicted about the issue.

But this lawsuit is disgusting.

11. PattyAnn - July 24, 2007

I thought at first it ssaid Boris Karloff, too, Bart.

12. Dave in Texas - July 24, 2007

“I believe that this case is so powerful and this tragedy was so preventable and is so poignant, that it is the kind of case that should rise above the fray and rise above party politics,” Searcy said

Um. Killing the unborn in this country is about as political as you can get, dorkwad.

13. Sobek - July 24, 2007

Anything that involves a lawyer getting paid should rise above politics, dorkwad.

14. Lady Michael - July 24, 2007

I can understand that this couple was angry to hear that the specific test was not done. I’m sure they were sad to find out that their second child also had these complications. But punishing the doctor for their own personal genetic short-comings and predicament is pathetic.

We take chances when we make the choice to have unprotected sex, and every couple who makes the decision to have sex — protected or not — needs to understand that 1) they may conceive and have a child, and 2) that child may not be the perfect little person they hoped for. Realistically — NONE of us have that level of control.

It’s bad enough that these parents find others to blame for their own issues — but this one hurts worse because the little people involved may come to sense that they were BOTH “wrongful births” in their parents eyes rather than be seen and declared as God’s gifts and their parent’s delights whether they were born “perfect” or not.

I’m sure glad my mom and dad didn’t think like this when they realized what a difficult challenge I was — a “wrongful birth” so to speak!!! (My mom may have thought this when I was a challenge but bless her that she kept it to herself.) And when my mom got pregnant with my little sister, I’m sure glad she didn’t decide to have an abortion because this one was an “unexpected” pregnancy.

15. See-Dubya - July 24, 2007

Around Daniel and Amara Estradas’ house in ten years or so:


…take care of something I never finished.

Now run and play, you misshapen blobs of defective protoplasm.”

16. See-Dubya - July 24, 2007

Case law in a jurisdiction I am familiar with prohibits wrongful birth suits, BTW. I think it’s still good law.

17. Dave in Texas - July 24, 2007

I would be somewhat more sympathetic if this:

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.

were this: “we didn’t know the risk to a second child because of the first child’s misdiagnosis, so we would have elected not to conceive a second child and run the risk”.

Granted, abortion is legal. I’m just talking about my sympathies.

18. Wickedpinto - July 24, 2007

but this one hurts worse because the little people involved may come to sense that they were BOTH “wrongful births” in their parents eyes rather than be seen and declared as God’s gifts and their parent’s delights

There was a law and order Criminal Intent, that revolved around exactly that.

An older (healthy) brother, killed another person who was trying to blackmail his family with information about exactly this kind of lawsuit, over a “defect” in his younger sister. The older brother didn’t kill the other person to protect the lawsuit, but to protect his sister, who he loved, and never wanted her to know that her mother never wanted her.

19. Wickedpinto - July 24, 2007

someone has it out for michael.

20. Lady Michael - July 24, 2007

Is that a hedgehog in the bushes?

No — it’s BatPig! Snort! Snort!

21. Mrs. Peel - July 24, 2007

Ok, now that I read the actual article, I kind of see where they’re coming from. The doctor told them that they would be able to have normal children, and they believed that until the second child was born and proved to have this disorder.

But I agree with Dave – I’d be more sympathetic if they had said that had they known it was a genetic disorder, they’d have chosen not to conceive; rather than saying that had they known it was a genetic disorder, they’d have killed the kid in utero.

22. Lady Michael - July 24, 2007

Yea — a lot more sympathy for someone who would have expressed the desire to make the choice to simply not conceive.

23. Michael - July 24, 2007

Just ask Michael.

Michael not so dumm. Michael funkshunal now. Michael lern veetnamese.

Like, ăn tôi, Brewfan.

24. daveintexas - July 24, 2007

yeah. it’s like they needed some good information to make choices.

In this case, I think I could agree with a jury who awarded them funds to care for the boy,

Even with their tack.

I modify my remarks anecdotally knowing parents who chose to conceive and give birth, and accept and care for their offspring in difficult circumstances.

I realize not everyone shares my view on the unborn, and that’s ok. I would just rather have seen this one teed up differently.

More personal tack.

25. andy - July 24, 2007

While the way it is phrased is distasteful, I can fully understand their feelings, from personal experience (my son Ewan may have another Opitz syndrome, Opitz G, which has affected his feeding and growth, although he has hit all other milestones – so, a mild case).

My daughter also exhibits different and milder symptoms (hers has essentially amounted to motor planning issues and some speech delay, although she’s smart as can be). Genetics so far have come back as clean, but they are doing more detailed tests; regardless, they believe it is a similar deletion on the same chromosome that was inherited through my wife’s lineage.

We learned a lot about all of this around the time we found out we were pregnant with #3 (arriving soon). Had we known the genetic components, I think we both would have been rushing to get our reproductive capabilities ended, just because of the potential of future children having much, much worse outcomes.

I hope this new child is a-ok. If not, I will care for it to the best of my ability. Had we found out all this AND that we were, say, only 4 weeks pregnant, we might have opted to end the pregnancy. I can’t really say.

But I’m not going to stand in judgment of this couple either.

26. Michael - July 24, 2007

I come out the same way, Dave.

It’s important to recognize that the core of a “wrongful birth” case is not abortion, it is medical malpractice. What the parents should have done in the absence of such malpractice is secondary.

27. daveintexas - July 24, 2007

Andy expresses my sentiments from a different perspective.

That of a hopeful dad. Facing difficult decisions.

All the best andy.

28. andy - July 24, 2007

Cheers, Dave.

29. Michael - July 24, 2007

*looks up*

Jeez, I think Dave, Andy and me are agreeing about something.

Man, that is unacceptable.

Yo Andy. You realize that evolution is just a “theory,” don’t you? And what about those missing links?


30. Michael - July 24, 2007

*waiting for links to talkorigins.org*

31. BrewFan - July 24, 2007

Michael not so dumm. Michael funkshunal now. Michael lern veetnamese.

Congratulations. You’ve reached the same intellectual plane as every two year old in Viet Nam 🙂

32. John - July 24, 2007

Somehow I think that this couple will not win “Parents of the Year” awards anytime soon. Beyond that, I only have some colorful metaphors to express what I think of these folks so I’ll refrain. I will say though that this is one reason I oppose abortion…

33. Muslihoon - July 24, 2007

Gerçekten sayıyorum: onlar çok kötü ve iğrenç. Hayata!

What clouds my mind is that one of my cousins and his wife tried for years to have a child. After spending a lot of money and seeing many specialists, my cousin’s wife finally conceived and gave birth to an adorable girl. (How they accomplished this has not been an issue my parents have seen fit to discuss with us their children.) Seeing what effort they had to go through makes me value the ease with which many are able to conceive and give birth.

Also, although I am the oldest child, I am not the first child my mother conceived. She had a miscarriage before me. Another reason I value conception and birth: the latter is not a given when the former happens.

So I know I am quite pro-life, but I know that I am biased as to why I am this way.

34. Mrs. Peel - July 24, 2007

I know what you mean, Musli. My sister had two failed pregnancies. (She’s currently about five months along, due in November, and doing really well.)

But yeah, I can see where this particular couple is coming from, and as Michael says, it is really a malpractice case.

35. Lady Michael - July 24, 2007

Yea — husband Michael nailed it… again!

The picture is clearer now for me to see that malpractice is the real issue — not “wrongful birth” which is so offensive on several levels.

36. Wickedpinto - July 25, 2007

A GOOD father, and a GOOD mother, would find this as a wonderful gift EVERY faters day, or mothers day even if the child were in their thirties, and disabled.

My mother and her boyfriend, Every holliday, every year and every birthday, gets a card from a developmentaly dissabled young man (my age) who is so caring for how well they treated him.

He remembers their birthdays, he sends a blank card filled only with his own handwriting. He wishes them well on christmas and during easter (the holiest of christian holy days) and even on holloween, and on holloween he tries to mimic my mothers boyfriends ability to draw.

My moms boyfriend always includes a small pen sketch that is humorous, and the develelopmently disabled guy tries the same thing on holloween.

I would prefer 20 “charlie”‘s to ONE nancy pelosi.

Charlie is a friggen sweatheart, a hard worker, and more thoughtful than any politician.

37. Michael - July 25, 2007

Geez, Wickedpinto, you have an uncanny ability to toss something really affecting into all your goofy nonsense.

38. Michael - July 25, 2007

Seriously. You should collect your thoughts about Charlie and put up a post.

39. Michael - July 25, 2007

It’s “halloween,” BTW.

40. Wickedpinto - July 25, 2007

I just know stuff, My mother actually tears up every time charlie (that really is his name) sends her a card.

He is such a thoughtful and caring person, that mom almost breaks down, cuz she can’t remember his birthday.

41. Wickedpinto - July 25, 2007

I don’t know if I commented on it hear or at KC’s place, but when I went to pray for my brother and his wife’s procreative opportunities, I aimed for charlie’s church.

St. Cassamir’s.

42. Wickedpinto - July 25, 2007

AMA is for politics, and random news.
The Hostages is for foolish interaction, unless there is something interfering.

Charlie’s story isn’t really mine to tell.

43. Wickedpinto - July 25, 2007

Interested in another developmentaly disabled person story?

44. Wickedpinto - July 25, 2007

I was a sophomore in highschool, I was suspended regularly because all of a sudden since I wasn’t on the wrestling team (which I quit of my own accord, cuz I violently hated my coach, who was also my coatch in baseball, and he benched me HE BENCHED . . .ME

I was the only catcher who caught for a full season, the ONLY catcher who caught for a full season, my brother was a pitcher, and my brother was in the Papers for YEARS! he had 6, 6! no hitters, in upper leagues (B and A) and I caught for him, and I don’t know how to catch? You think my broterh, probably the most newsworthy person in my family (even though we had a fair few criminals) because of his ability to pitch could teach me about how to be a catcher?

Anyways, I quit baseball cuz my coatch wanted me to play right field.

Yeah, thats LOGICAL lets take a trained catcher and throw him into right field, so I quit baseball, and that coatch was also my wrestling coatch.

I went state in freestyle 3 years, but he wants me to lose weight, that right there pissed me off.

“why lose weight when I go state every year?”
“did you win?”
“did your boy who’s taking my place make it pass state?”

I got abused, and I quit.

I’m not oh woe is meing, but really, I was amazed that politics could dig into the two games I loved.


45. Wickedpinto - July 25, 2007

Anyways, heres about my cousin, his name is jimmy.

He is developmently disabled, he’s forest gumpish, not incapable, but just slow.

After I lost the outlet of sports, I started to act out a LOT!!!

And my school, (I actually liked portions of this) wouldn’t suspend kids by making kids stay at home, cuz that’s really a punishment of parents not the student, so we had “ISS” “In School Suspension.” The Execution was ridiculous, because we were told to do homework, and I was genarly already done with my homework, (thats an advantage of a syllabus for a smart kid) “Then You Sit There!!!” I’m probably the only person in the history of my highschool who actuall read the entire history textbook. (I spent a lot of time in ISS)

Later, If students “refused” toor already have) read textbooks in ISS, then they were given “working detention” meaning we helped the janitors cleanup the school.

I had a lot of ISS and since almost all of my work was done (I failed classes on attendence not performance, 100% true story, I had a US History Teacher who was the only teacher who gave comprehensive tests, and not just comprehensive per semester, but a yearly comprehensive at end of year, with a lower requirement. My first semester I aced, I “passed” that class with a “D” I got the “D” because of attendance, OH I learned enough to ACE the FRIGGEN FINAL, but I wasn’t a good little soldier, so I got a “D.” Then something else happened, and this is why I didn’t care if I graduated or not. I took the semester final, and then the comprehensive final. between the two I missed 3 questions, I missed 3 questions between BOTH semester and comprehensive, and I failed that class. I had to retake it the next year. I realized school was politics and I wasn’t interested, and I failed because of ISS and attendance. PERSONALY were I the teacher I would take that as an offense “my class is so easy that someone who spends most of his times in suspension and ditching only misses three questions? we must REALY BE DUMBING DOWN OUR KIDS!!!” But Nope, they belong to a union.

46. Wickedpinto - July 25, 2007

Back to developmently disabled,

ISS was both day long detention and janitorial assistance.

one of the janitor’s was my cuzin named jimmy. Another Effing sweetheart of a human being, pretty much the only person on my fathers side other than uncle dave that is worth mentioning.

Jimmy was paying his way through a vocational school while working as a highschool janitor at MY highschool. Unlike many kids, I wasn’t ashamed of him, I was proud, and if anyone fucked with him, I would have killed them. In fact, I threw one kid down the stairs for calling cousin jimmy a retard loud enough that jimmy might hear.

I didn’t care, nor did the school, you can call anyone without an education degree a retard, as long as you don’t offend people with education degree’s.

Those times when I had to work with the janitorial staff during ISS (In School Suspension) he would constantly tell me, how I should be a good boy, and I would start to say how they talked about him, and he would cut me off “They are your teachers, and you are a student, learn from them.”

Wisdom from someone who this couple thinks should have been aborted.

He has 3 kids, all of them are “normal” and he’s never been happier.

Granted the kids are ugly, I ain’t gonna lie 🙂

47. Wickedpinto - July 25, 2007

But I’m thankful he has children. He might not be able to teach them about engineering, or physics, or relate to the great written word, but he is a wise man, as simple as he is, he is FAR wiser than I have ever been.

48. Wickedpinto - July 25, 2007

And I’m one Smart Fucking guy!!!

49. sobek - July 25, 2007

Just so everyone knows, I updated this post to add the comments I promised.

50. Blendor » Wrongful birth? - August 5, 2007

[…] case discussion here, for the legal-types. Other interesting legal commentary here: A common exercise in Torts class […]

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