David M. Lang discusses the mistakes made in this particular case, as well as the larger issues of what the legal system terms "wrongful birth."
At a New Jersey hospital, a pregnant woman underwent an ultrasound examination with results that suggested a possible abnormality in the fetus. The hospital ordered DNA testing of the mother and her husband to investigate for a suspected hormonal disorder. The hospital sent blood samples to a diagnostic laboratory, but the wrong test was ordered; results were negative.
The infant was born with congenital adrenal hyperplasia, a condition that caused a hormonal imbalance and development of male genitalia. She underwent genital reconstructive surgery at age 4 months and is expected to require additional surgery, lifelong hormone replacement therapy, and lifelong monitoring.
The parents claimed that the pregnancy would have been terminated if they had been properly informed of the child’s condition.
According to a published account, a jury returned a ruling of 75% liability to the hospital and 25% liability to a hospital lab technician. The verdict was for $1 million, comprising $625,000 for the child and $375,000 for her parents.
The controversial legal theory of recovery in this case is known as “wrongful life” or “wrongful birth.” To prevail on these tort actions, one must prove that the defendant’s negligence led to the birth of an infant following a pregnancy that would have been terminated, had the parents been given all the prenatal screening information required by the standard of care.
The goal of any prenatal screening program should be to provide parents with information that is (1) adequate, (2) accurate, and (3) timely. In this case, the wrong test was ordered. Each practice should have a checklist to confirm that each test was ordered, completed, and discussed with the patient in a timely manner.
In this case, the clinician ordered the wrong test, which left the patient with inadequate information. From the facts given, it is unclear if the ordering clinician became aware of this fact and what information, if any, the patient was given regarding the error. Importantly, information must also be given in a timely manner, leaving the patient adequate time to make an informed decision regarding termination—before fetal viability.
Although a detailed discussion of the constitutional principles of fetal viability is beyond the scope of this commentary, three US Supreme Court cases paved the way for successful wrongful life/wrongful birth actions. In Griswold v Connecticut (1965), the court held that decisions regarding birth control were protected by the right to privacy. In Roe v Wade (1973), the court held that a constitutionally protected right to privacy exists with regard to pregnancy terminations until the point of “viability,” originally defined as between 24 and 28 gestational weeks. Planned Parenthood v Casey (1991) held that advances in neonatal care required a revised definition of viability to a point “somewhat earlier,” without establishing a specific bright-line rule for viability.
To complicate matters, this past year, six states (Nebraska, Idaho, Indiana, Kansas, Oklahoma, and Alabama) have redefined viability and passed laws banning therapeutic abortion beyond week 20. As these state laws may or may not be in conflict with Roe v Wade, a constitutional challenge is almost certain. In these states, whether a clinician could be held legally responsible for failing to provide information necessary to permit an informed decision prior to the 20-week mark is unclear.
Damage awards in wrongful life/wrongful birth cases are often substantial, and the verdict in this case was relatively restrained. Without doubt, this is a sensitive issue, and respect for our fellow clinicians’ opinions is warranted. However, from a liability standpoint, the safest course of action is to provide patients with all the necessary information (including prenatal testing results) for them to be able to make an informed decision before viability, as it is defined in the state in question. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.