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  1. #1
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    Right or wrong? 'Wrongful birth' lawsuit for child born w/ Down syndrome

    Anyone want to play Scruples today?

    Yesterday, a jury began deliberating a "wrongful birth" case brought by couple whose daughter was born with Down syndrome -- months after they'd received an "negative" diagnosis by a clinic. The health group/clinic is the defendant.

    *The couple is suing for the add'l cost of raising the afflicted child -- $3 million.
    *The couple say that they dearly love their daughter, who is now four, but ...
    *The couple state that they would have aborted if they'd received the correct diagnosis

    [Wow: The article claims that "several studies show that more than 89 percent of women who learn they will give birth to a child with Down syndrome choose to terminate their pregnancies"]

    My take: It's a very sad situation for the child, should she ever become aware of the facts of this lawsuit [well, I doubt that she could comprehend this] ... and defintely a sad situation for her [normally chromosomed/very bright] brothers, who certainly are/will become aware of what is being claimed.

    I support the right to file this lawsuit, but I'm not sure that it can or should be successful. Unless the clinic claimed that the test was 100% accurate, there should be no guilty/responsible verdict. Even if the clinic claimed the test was 99% accurate, there has to be the unlucky false-negative remaining 1%. This would give the accused an "out" ... no fault necessary.

    What is your take?

    The characteristics and challenges associated with Down syndrome

  2. #2

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    My take is that life happens. You don't look for someone to blame for everything bad that happens to you. You pay your own way in life & not look for someone else to pick up the tab.

    I have a water pipe break in my front yard. The cost to fix it is $2249 & the problem is tree roots. I didn't plant the tree, that was the previous owner. Should I hunt him down & sue him? Or should I suck it up & say that's the price you pay for home ownership?

    When people decide to have children, they take risks. Will their child be medically perfect? Will their child have a learning disability or crooked teeth or a behavior problem? You can't always find someone to blame, it's just the breaks.

  3. #3
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    Sorry about then wrong diagnosis and I am sure the couple dearly love their love their child but there is some things you just cannot help. I hope the clinic wins the suit.

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    I'm uncomfortable with it...but if I paid a firm to test a sample of potentially asbestos-containing material and they came back and said it was negative, and years later additional testing confirmed that it was strongly asbestos-containing, I wouldn't have much mental trouble going after them since there isn't any evidence that material can transmute from non-asbestos containing to asbestos containing. And lots of pathologists have lost lawsuits where the pap smear slide showed cervical cancer cells but the report said it was negative. Is this hugely different? Is there a lot of chromosomal ambiguity with Down's Syndrome? I don't see this couple alleging that they shouldn't have become pregnant with a Down's Syndrome child, but that they contracted for a test that (apparently) was either not performed correctly or not interpreted correctly.

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    Quote Originally Posted by barbk View Post
    And lots of pathologists have lost lawsuits where the pap smear slide showed cervical cancer cells but the report said it was negative. Is this hugely different?
    I think the issue here was the tissue sample taken was in fact negative, and thus was correctly reported to the parents.

    The parents are contending the tissue sample wasn't from the fetus, but was maternal tissue taken on accident. Don't know if that's the case or not.

    IIRC, the "wrongful birth" lawsuits started because it was often hard to get health-care coverage for such children, so suing whomever became a way for getting healthcare costs covered that otherwise couldn't be covered.

    Now with the Affordable Care Act in effect for children with pre-existing conditions, I don't know that there's the same financial reasons for these kind of lawsuits as before.

    IOW, the motivation may have shifted from needing care, to not being happy with having a non-able-bodied baby.

    One issue for me is these tests aren't 100% full-proof. There is a margin of error as with anything. For example, could someone sue for getting pregnant while on the pill? After all, it was supposed to prevent pregnancy, but clearly didn't. Or what if a pregnancy test came back negative when in fact it was positive. Should a couple be able to sue for that? Yet those tests do have a margin of error, which means there will be false positives/negatives.

    I do think there's a larger issue with society's aversion to people with disabilities, and trying to weed them out at the fetal level. And while I have no idea how this may or may not apply to the couple in question, there is a growing sense of wanting one's children to be born without defect, and feeling entitled to compensation if one doesn't get what one wants. Life isn't ordering a Happy Meal at McDonald's, though.

  6. #6
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    I agree with agalisgv about the tests. They do carry a certain margin of error in terms of sensitivity and specificity.

    I don't have an opinion on this lawsuit. The plaintiff would have to show malpractice by the clinic.
    "Nature is a damp, inconvenient sort of place where birds and animals wander about uncooked."

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    I would hesitate to say that the child won't be able to understand, when she's older, that her parents sued because they weren't allowed to kill her before she was born, and that they've gone on court record saying they wish she'd never been born, ie the important part? Yeah, the child will someday understand that unless she is severely, severely impaired (Downs patients are often highly functional and much smarter/more observant than raw IQ indicates.)

    In general I don't approve of suing unless there's gross negligence, so yes, I hope they lose/it's thrown out. I don't know a single medical test that's 100% accurate 100% of the time.

    And the parents come across in here as overachieving jackwagons more concerned with having little overachievers anyway. So one kid is a chess champ and the two boys get high test scores. That's nice. They have one child now who won't be. And they can talk all they want about loving her anyway, but the lawsuit makes that very hard to believe. Basically, they wish she was dead. Nice people. I hope they're ordered to pay court costs, too.

  8. #8
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    As to understanding of the lawsuit--it depends on the severity of Down. It ranges widely. I've volunteered for some really bright, fun and snarky Down syndrome kids.
    "Nature is a damp, inconvenient sort of place where birds and animals wander about uncooked."

    from Speedy Death

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    Quote Originally Posted by danceronice View Post
    And the parents come across in here as overachieving jackwagons more concerned with having little overachievers anyway. So one kid is a chess champ and the two boys get high test scores. That's nice. They have one child now who won't be. And they can talk all they want about loving her anyway, but the lawsuit makes that very hard to believe. Basically, they wish she was dead. Nice people. I hope they're ordered to pay court costs, too.
    This. (and love "jackwagons" -- haven't heard that one before!)

    As disgusted and saddened as I am by this suit ... I can't see much difference between this case and the dozens/hundreds/thousands of other lawsuits I've read about in the highly litigious "someone has to pay" climate you folks have down there. Seriously.

    It makes a mockery of the system -- and makes it harder for the people who have legitimate malpractice/misconduct/negligence cases to make.

  10. #10
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    I haven't heard "jackwagons" before either. What exactly does it mean?
    "Nature is a damp, inconvenient sort of place where birds and animals wander about uncooked."

    from Speedy Death

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    I hope they lose. Cases like this are why so many GYNs (including my own) have stopped delivering babies. The modern day expectations for having perfect children are absurdly high, that any time a kid is born imperfect the parents are thirsty for blood (egged on by ambulance-chasing lawyers). My GYN said her malpractice insurance premiums exceeded $200K annually, so she quit delivering babies entirely, which sucks.

  12. #12
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    Obstetrics is the most litigious specialty.
    "Nature is a damp, inconvenient sort of place where birds and animals wander about uncooked."

    from Speedy Death

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    I am pretty sure when we had the Down's screening (screening 'light' as my age did not put me in a high risk group), it was with the understanding that it was withing a % margin of error. I think there is always a margin of error, in any test - and as long as you inform the client, it shouldn't be a problem (testing anything from Downs to abestos)
    I think it is odd that people think you can test to avoid risk - there is always risk, and in the end it is your own.


    (I also admit that I agree with the 89% of women who terminate pregnacies when they learn of Down's - we would probably do the same. If discovered early enough.
    But it seems odd to continue to worry about it after you had the kid - as taf2002 said: life happens.)

  14. #14

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    "*The couple say that they dearly love their daughter, who is now four, but ...
    *The couple state that they would have aborted if they'd received the correct diagnosis"

    This does not sound like 'love' to me.

  15. #15
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    Quote Originally Posted by Vash01 View Post
    "*The couple say that they dearly love their daughter, who is now four, but ...
    *The couple state that they would have aborted if they'd received the correct diagnosis"

    This does not sound like 'love' to me.
    Yes, because obviously, a four year old child is different from a 20 week old fetus, at least to the pro-choice crowd.
    "Nature is a damp, inconvenient sort of place where birds and animals wander about uncooked."

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    Quote Originally Posted by Beefcake View Post
    [Wow: The article claims that "several studies show that more than 89 percent of women who learn they will give birth to a child with Down syndrome choose to terminate their pregnancies"]
    I totally understand and support the decision of these women.

  17. #17
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    Quote Originally Posted by Vash01 View Post
    "*The couple say that they dearly love their daughter, who is now four, but ...
    *The couple state that they would have aborted if they'd received the correct diagnosis"

    This does not sound like 'love' to me.
    Seriously. Having a mass of cells tested and understanding that caring for a Downs Symdrome child can be extremely expensive, I wouldn't blame anyone who aborted a fetus who tested positive.

    But to have that child born, to know that child as your own for four years, to learn of her personality...and then to say they would have had her aborted had they known she wasn't perfect. That's a whole other level.

  18. #18

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    Agree.

    One of my pregnancies I really felt that I was pregnant but the test was negative. So I didn't take the usual precausions, like quitting drinking and smoking or anything else. I ended up miscarrying that pregnancy. If I had carried it to term, the baby might have had fetal alcohol symdrome or some other problem. I guess I could have blamed the miscarriage on the testing facility & sued but I never thought of it. I guess I just figured there are no guarentees in life & no test is 100% all the time. I feel bad for any couple with a Downs syndrome baby but this couple is acting like spoiled brats.

  19. #19
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    I've heard of a lawsuit where the woman miscarried and sued her provider for not having a non-smoking sign in the lobby where the elevator is. There was one in the office but not near the elevator. Not sure what happened to that suit.
    "Nature is a damp, inconvenient sort of place where birds and animals wander about uncooked."

    from Speedy Death

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    If the clinic has some kind of clause that states they can not be held to any diagnosis then case closed. I assume they didn't and that is pretty stupid, I guarantee you they have one now! I feel bad for the family, too. I can see how a family would be worried and would agree to terminate a pregnancy if they found out the child would be born with Down's. I wonder if the fact that they chose to keep the child will come back on them. If they truly wanted nothing to do with a child with such a disability then they could have given the child up but they didn't, they made a decision to keep and raise the child at their own expense. If I were a judge, that would be the deciding factor for me.

    As for the child understanding, that is impossible to know without more information. I work with special needs children and some of the children with Downs would be unable to understand this situation but others probably could, to some degree. All it would take is for one of the brothers or sisters to get mad and say "Mom and Dad wish you were dead!" for the child to know the gist of what is going on, they don't need to know all the details to have their hearts crushed.
    -Brian
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