Too often, however, something goes wrong at the hands of the doctor or health care staff and a child suffers a severe injury. Examples can range from broken bones to cerebral palsy, to serious brain injury.
But what if the child born to the parents is disabled for genetic reasons? Our Brooklyn medical malpractice lawyers know this would not be the fault of the physician or anyone else – except if previous ultrasounds and testing designed to identify birth defects failed. This deprives expectant mothers (and fathers) of the right to choose whether to continue with a pregnancy. Parents of these children will for years incur extraordinary expenses for the child’s care. Such “wrongful birth” cases have been cropping up across the country.
One such example occurred last month in Washington State. There a couple was awarded $50 million by a jury that found a prenatal testing laboratory responsible for failing to inform the two that their child had a chromosomal abnormality that would leave him severely disabled.
According to the Seattle Times, the two pursued extensive genetic testing after learning that a severely disabled cousin of the man had a rare genetic defect known as unbalanced chromosome location. In talking with his doctor, he learned that any future children of his had a 50-50 chance of developing this same condition.
For this reason, the two sought genetic counseling and testing and followed all the recommendations. When the woman became pregnant, genetic tests conducted by a lab in North Carolina declared their child normal.
However, as soon as the child was born, the couple immediately realized something was very wrong. As it turned out, the child, now 5, had the genetic condition and suffers profound mental and physical disabilities. He will require around-the-clock medical care for the rest of his life.
The couple would later learn that the medical center failed to send the lab certain critical information that would have helped to identify the abnormality.
Subsequently, a jury found both the medical center and the lab equally liable for damages to the couple.
However, a recent appeal of a similar case in Florida resulted in the appellate court overturning a $2.5 million award to a mother with a similar claim.
In OBGYN Specialists of the Palm Beaches et. al., v. Ana Mejia, the defendants appealed the medical malpractice verdict by arguing that the trial court committed a reversible error by precluding them from presenting an argument that third-trimester abortions are generally illegal in Florida.
In this case, the child had been born with significant birth defects, which went undetected in her routinely schedule third-trimester ultrasounds, with doctors saying the child had four limbs, the feet appeared normal and, in the doctor’s words, the child was “perfect.”
However, as it turned out, the child had no hands, only one leg and only part of a foot, which was attached to the hip of the other leg.
She subsequently won her case against the doctor’s office. However, the appellate court found it was a reversible error that the defendant was not allowed to present evidence of the state’s law against late-term abortions. (A dissenting judge noted the woman did have the option to travel out-of-state for such a procedure, if she so chose.)
It’s now up to the plaintiff to decide whether to appeal.
In New York state, late-term abortions (after 24 weeks) are generally not allowed unless the life of them mother is in danger. However, Gov. Andrew Cuomo has been working to change that law so that it will include when the mother’s health (not just her life) is at stake – a significantly lower threshold.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
OBGYN Specialists of the Palm Beaches et. al., v. Ana Mejia, Jan. 8, 2014, District court of Appeal of the State of Florida
More Blog Entries:
Bigger Babies, Bigger Medical Risks for Mother and Child, Aug. 20, 2013, Brooklyn Medical Malpractice Lawyer Blog