I almost threw up when I read this:
Parents can sue a doctor if a genetic screening misses a severe or fatal condition that would have caused them to seek an abortion, a divided state Supreme Court ruled Friday.
The 4-3 decision limited such lawsuits to costs associated with a pregnancy and the birth of the child, saying such parents could not sue for pain-and-suffering damages or repayment of the costs of raising a disabled child.
The decision was a partial victory for a Kentucky couple who sued a Cincinnati obstetrics practice and hospital that provided genetic counseling and told them their fetus did not have a genetic disorder that the mother carried. The 8-year-old boy born in 1997 has the disorder and can’t speak or crawl.
The finding overruled a lower-court decision that Richard and Helen Schirmer could sue for the costs of raising their disabled son.
Justice Maureen O’Connor, writing for the majority, noted that the Schirmers had indicated they would have aborted the child if they had received the correct diagnosis. As a result, she said they could not sue for costs above those of raising a child without a disability, since that was never a possibility.
Not only do they have no shame in publicly stating that they wish they had killed their son before he was born because he’s inconvenient, imperfect, and expensive, but this mother also has the same disorder.
Someday, they too, just like the rest of us, will become inconvenient, imperfect, and expensive. How would they feel if their lives were treated as cavalierly?
My opinion on abortion is kind of complex. My opinion on this couple is not. Since one of them carries a genetic disorder and both do not want to face the responsibility that a child resulting from their genes might not be ‘perfect,’ sterilize them.
In addition to the genetic disorder the mother carries, both parents carry another, much more serious, disorder.
If it weren’t for the 8-year-old (whose world will end when his peers get a hold of the fact that he would have been killed), I’d say to Kev that sterilization is not the answer, euthanasia is.
On second thought… Perhaps, because of the future of that 8-year-old the state should consdider reassigning him to another family…
There is a significant difference between “carrying” and “having” the disorder.
If someone pays you for a service and you screw it up, causing damage or problems of any kind, you have to pay up; I see no reason for doctors or labs doing genetic screening to be held to a lower standard… if anything, considering what’s at stake, they should be held to a HIGHER standard.
Whoever botched the test or the analysis thereof should have to pay for 100% of the lifetime cost of caring for that child.
(Click here if you dare)
Disagree, omni. This isn’t plumbing, dude. It’s the human body. Maybe you’ve had too much science fiction in your past, but the human body is a terribly complicated system and can pull all kinds of shit on you. It’s a test. That’s it. It’s not the Word of God. A test. Ever take a test that was wrong? Did the doctor say, “you might want a second opinion?” If you’re that genetically scrambled, perhaps it’s incumbent upon you to figure these things out – and spend the necessary costs – which they didn’t do, obviously, to make absolutely sure you’re not creating something you don’t want (or at least, would rather not pay for).
Did they not think to go get a second evaluation? If not, their ignorance shouldn’t be the doctor’s problem. It’s their health. it’s their problem.
If I were the doctor I’d appeal with an offer to sterilize them for free. Look at it this way: Darwinism is telling us these people aren’t supposed to have kids. So why do they get to shunt the roll of dice nature has given them – and all its attendent costs – onto other people?
Omni’s link should not be titled ‘click here if you dare’, but ‘click here if you care’. Snore.
For rants apropos of nothing, I’d recommend Hog On Ice.
I’m not sayin, I’m just sayin.
I can’t help but wonder what it would be like to grow up with the knowledge that your parents would have killed you had they known about your disability.
I have a child with a disability-while it means more effort on my part to raise him, I would never in a million years wish him dead.
These parents just make me want to throw up.
I think it makes a significant difference if the test was actually *botched*. If it’s a case of a properly conducted test that gave a false negative… is anything 100%? Stuff like this is *terrible* for all those of us who would like to get good medical care because it forces smart people with a multitude of other options to look at their no-win medical career and say “stuff it.”
just me, my best friend from high school has a severly disabled child. She says that she wishes every day that he’d been born without the problems he has but she never *ever* wishes that he hadn’t been born.
I am NOT weighing in on the topic of abortion, but I would like to point out that one should read a LOT more carefully when using facts from a story to make a point. The mother CARRIES the disorder, she does not suffer from it.
What am I missing? This is simple. Very, very, simple.
If the medical care providers were negligent in reporting a negative genetics screen, and if the parents and kid suffered damages as a proximate cause of that negligence, those who screwed up should pay.
Those of you who are shocked that the parents would have aborted a genetically scrambled kid should stop for a moment and consider why genetics screening is done–particularly for mothers who are known carriers of a genetic disorder.
If your beef is with abortions in general, then fine. But there is nothing out of the ordinary with regards to the lawsuit. Wrongful life cases are faily common.
These parents were mislead into making a decision they otherwise would not have. As a result, they suffered monetary damages (and much more). Yes, they also gained a kid, which they probably love despite the disorder. But those who screwed up should pay the extra expenses.
I severely screwed up a sentence above. The damages were proximately caused by the negligence, not the reverse.
Duh. Time for a martini.
I’m of a mind with Starboard. The issue here isn’t the abortion itself, but rather whether the doctor was negligent. Was the test performed with ordinary care? Did the parents reasonably rely on the doctor’s advice?
In some ways, this is not all that different from a standard medical malpractice case.
–|PW|–
I can’t get over how cases with what seem like fairly straightforward legal isues get bollixed up when a hot-button issue like abortion is involved …
–|PW|–
Well, if ya all wanna split hairs, Mrs. Schirmer has an inactive form of Trisomy 22. It can affect either sex but is more likely to affect males. She was told that the child was probably female and didn’t appear to carry the trisomy defect. Turns out it was a boy and did have the full blown syndrome. She has unexpressed Trisomy 22.
Anyways, the original post was about the moral impropriety the poster felt the testing represents. This is a tough arguement in our society, but since its still legal to kill your baby for no reason at all, I don’t see the point in bringing up the topic in this setting, unless to point out that at least some folks feel there is never a reason to cause an abortion. And some disagree with it.
A great nation had a fantastic Eugenics program, sterilizing all who were defective genetically, mentally, and even socially. Then it expanded to killing them. Then to killing all sorts of folks. Anyone who even playfully suggests that sterilizing folks (against their will) with genetic disorders is an appropriate recommendation is taking steps down a well trodden path of “good intentions” that has led many to the path of Hell. If you care to see one analyst’s study of how a nation’s doctors were co-opted into this project, read Robert Lipton’s The Nazi Doctors.
As far as the actual malpractice claim, note the state court limited the claim to costs of the pregnancy and the birth only, not the care of the affected child. Try Googling Schirmer birth suit or check this link for a legal analysis thus far:
http://www.sconet.state.oh.us/Communications_Office/oral_arguments/05/0413/0413.asp
I tend to agree with limiting the claims this way – the chilling effect on doctors would limit folks from doing the testing. Since there are some disorders with prenatal treatments, meaning abortion is not always the result of a positive test, this could negatively affect health care for a lot of folks. Note malpractice and birth defect suits have severely limited who performs deliveries (and increased their costs) without significantly improving morbidity or mortality of childbirth. Here’s a legal quagmire that could really screw things up worse.
Now if we had a blame resistant error reduction oriented approach to dealing with medical errors or poor outcomes (not all poor outcomes are due to errors), then this whole arguement would be moot.
I’m all for this couple suing and putting their story out there in the news. The way I figure it, this lawsuit is a logical consequence of our culture of death. And the more people see that, the more it disgusts them, the more people’s hearts are going to soften for the unborn.
I’m an older baby boomer conservative-type through and through. But on this one, I have sympathy for the couple.
My oldest Son was born autistic. No one realizes how difficult it’s been for the last 27 years. Only people that have walked in those shoes can truly appreciate that.
We wanted more children, but each of the next two times, that decision was so much more complicated than your average family.
We not only thought of how it may effect us to have another handicapped child, but how it would effect him as well.
The worry that hangs over your head every minute is what will become of him when he outlives us?
Dealing with two handicapped kids probably would have, in all honesty, killed us (no exaggeration)………. and that wouldn’t do anyone any good.
We did have what testing was state-of-the-art at the time before each of our next two children. Thankfully, we weren’t faced with the decision. However, under those circumstances, we were resigned to abortion had the results been the opposite.
It had nothing to do with cramping our lifestyle…that was turned upside down when our first was born. It had everything to do with seeing that the one we already had wasn’t going to suffer as a result.
Epador raises some great points, at least by implication, that I glossed over. I don’t know the details of the testing technology or culpability of the docs. I am assuming that the docs either applied the wrong tests, performed the testing improperly, or misreported the true results. But if there are limitations in the testing technology that can’t be blamed on the docs, then of course they would not be negligent and liable.
As for chillng effects on the profession, that’s a policy decision that is often made by the legislators who limit medical liabilty. But if you think about it, is there really much difference between a doc who fucks up and causes a birth injury, and a doc who fucks up and causes the birth of an injured person? One causes the injury where one would not exist. The other caused a birth that would not exist. Either way, both caused the birth of a gorked kid.
Gosh. Just think of how wonderful the world would be if we just aborted all the “imperfect,” “defective” children before they were born. Why, we could screen for other things like asthma (sometimes people have fatal attacks), inclination to drug or alcohol addiction, freckles (many kids suffer painful ridicule because they have freckles – best not to put them through that), shortness (anything from below average to dwarfism), tone deafness (poor kid wouldn’t be able to carry a tune), susceptibility to various painful medical conditions (migraines, stomach ulcers, etc.), and developmental disablities (i.e. mental retardation).
Why, I can hear Louis Armstrong singing “What a Wonderful World” already!
Hmmm.
I agree with the court’s decision because of one simple thing:
Nothing in medicine is guaranteed.
When you go for testing, a surgical procedure, new medication or what have you, there are no guarantees. Nobody tells you that if you do this you’ll be perfect and there won’t be any side effects. Nobody tells you that the result of *anything* that is involved with medical care will be perfect.
So something goes wrong, get used to it because it happens. Unless it’s something due to actual incompetence, and not just perceived, it shouldn’t be something you can sue for.
Funny I just read this too: $100,000 award after failed abortion
Unbelievable times we live in.
They act like they’re suing because they weren’t offered the 100,000 mile Platinum Premium-Care Extended Warranty Plan.
My heart goes out to the parents and the child, but when it comes to babies, the risk of a bad outcome is part of the deal.
Funny how when the topic of abortion, disabilities, “I wanted a baby but…” discussions come up, nobody ever mentions adoption.
Anyone with a known genetic condition that MAY be passed to a child can avoid rolling the dice completely and select a more known quantity such as a healthy, adoptable child.
Even folk who can’t have children for other reasons (non-inheritable health conditions) will jump through $20k hoops to have their own offspring and discard unused, fertilized eggs.
How narcisistic do we have to be to think that only our own genes can fulfill the promise of the joy of parenthood?
Life is a gamble and there are no guarantees. If you KNOW you may suck and the game of making babies, maybe you just shouldn’t play. Especially when it is someone else who may have to pay for your bad luck (the doctor, the child, the fetus).
Don’t get me wrong. I’m not advocating that anyone with a disability not be born. Nor am I dissing parents who have such children. Far from it. I have nothing but the utmost respect and admiration for anyone who gracefully accepts the cards they are dealt.
What I don’t respect is folks who don’t accept such an existance, particularly when their are other known options that they chose to ingnore.
L
Ed, you can sue for anything, especially malpractice. Most insurance carriers just rollover and pay up, as long as the price is low enough, no matter how ridiculous the suit.
Starboard,
The doctor did not impregnate this woman! If they relied on the reading of an ultrasound for the gender to determine, even in part, the possibility of Trisomy 22, the gender would not be known until week 18 minimum. It’s hard to abort after week 12.
Plus, she’s a high risk pregnancy by definition, so why weren’t more or more frequent ultrasounds performed? I doubt that this couple expected a girl, but when a boy popped out they were shocked.
The doctors will be responsible for some part of the monitary payout simply because they have malpractice insurance & can ‘afford’ to pay some of this families problems, of which they have no moral responsibility.
L
Your right, this is not an abortion issue. This is about malpractice. Straight forward legal case injected with emotion only with far reaching association to abortion.
Pregnancy is very stressful, my wife & I worried everyday about the health of our fetus/children during the pregnancy & still do afterward.
The prenatal therapy angle is one I hadn’t thought of … and it causes this case to make even more sense precedent-wise. If a family went for the test, the doctor told them, “Your baby does not have Syndrome X,” and thus the family did not undertake prenatal therapies, and ended up with a sick child … there would be no question of a malpractice suit in that case.
–|PW|–
As a Physician who used to do genetic screening I could point out that no screen is perfect and that many conditions cannot be identified till after birth. At least in my office this was always explained to patients before and after a screening. Imho if patients know that they carry a significant chance of an abnormal baby,then the consequences should be theirs.
If a screening was truly abnormal and this can be documented, then this is the problem of the screener. The patients, however are not totally without resposibility.
The situation can be compared to throwing dice and expecting another player to pick up ones losses
All of you who keep repeating the mantra that “no medical results are guaranteed,” and “no tests are perfect,” are correct–but you’re missing the point.
A bad medical result does not equal “malpractice.” A known anomaly in a test result does not equal “malpractice.” If either of those happened in this case, there would be no liability and we would not be having this discussion.
However, if the doctor, nurse, lab staff or whomever SCREWED UP (i.e. negligence or intentional bad act), then they should be liable for the consequences. To do so is not unfair, since it is not making them liable for the imperfect state of science. The law only holds them to comply with the standard of care of other similar docs in the community.
Imhotep: Your comment about malpractice insurors rolling over is, well, suspect. Many other types of insurors do roll over, but medical malpractice insurors usually cannot do so without their insured’s concent to settle. Most states requrie such settlements to be reported to their medical licencing boards, so the docs typically would rather fight than pay. Since medical malpractice cases are usually easier to defend than prosecute, most claims never make it to the licensing boards.
And, this is a good thing. As many of you noted, there are no guarantees in medicine. Yet when someone gets a bad result, they wanna sue the doc. In most of these cases, the doc performed just fine, but shit happens. It’s only those cases where the doc really screwed up that should be paid by the insurers, and that should tie up our court systems.
The practice of genetic “counseling” has always made me more than a bit queasy. The only good I can see coming out of it is that the doctor’s have a better idea of what to expect during the delivery maybe. Other than that it’s just creepy as hell (don’t believe me? In the UK there are reports of parents aborting fetuses because of test results indicating club foot which is *totally* reversable). In my limited experience with genetic counseling, doctors tended to over-diagnose rather than under-diagnose, as happened in this case. If the couple does get big payout, I can see that having a ripple effect across the genetic counseling industry.
Imhotep:
“The doctor did not impregnate this woman!”
You’re right. Nor did the drug-addled brake mechanic, who overlooked a leak in the brake lines, turn the key to start his client’s car for her.
In both cases, the patient or client had reason to be concerned about a likely and disasterous outcome. In both cases, they sought expert help to assess the likelihood of that feared outcome, so they could prevent it. In both cases, they were given a false sense of security, so they did not take actions to prevent the outcome.
When the driver reached the hairpin curve at the bottom of the hill, the brake pedal hit the floorboard and she flew off the cliff. Was it her fault for buying the car? For starting it? For driving it down a tricky hill? Hell, she set the whole process in motion, just as the mother did by being impregnated. Was it her fault for not having the entire brake system overhauled after her mechanic said it was in good shape?
Whose fault is it? Who undertook the responsibility to assess the danger in advance so it could be prevented? Who was solely capable of performing these serious tasks? The medical people and the mechanic, that’s who.
Sure, auto mechanics is a much more finite and controlable field than medicine. But if the doctor made a mistake (by that I mean a negligent screw-up as opposed to a close call that ultimately turned out to be the wrong decision in hindsight), then his insuror should pay. Once again, I do NOT advocate holding the doctor responsible for the falability of medical science, only his or her own mistakes that can objectively meet the threshold requirements for negligence.
I hardly see how everyone is missing that point, Starboard. I made it up there somewhere. IF this is a case where someone messed up then, fine. If they screwed up the test then, fine. But JUST BECAUSE the doctor was wrong about the results of the test is NOT reason to rule against the doctor *unless* the doctor was claiming 100% reliability.
The ruling should *not* be an act of compassion, that the parents tried to be responsible and now have this huge debt they can’t afford so get the money from the doctor even though the doctor didn’t do anything wrong because the Doc has insurance.
WE PAY FOR THAT. Every time we go to the hospital or try to find an OB to deliver our baby or wonder where the doctors have gone and it most certainly is an issue in lots of cities and rural areas.
Synova, it sounds like you and I agree.
Some of the others do not agree, and those are the ones I’m trying to talk to. Some seem too blinded by the abortion issue to make sense of the malpractice issue. Others seem to feel there should never be malpractice cases because medicine is an inexact science and there are no guarantees. Others think genetic testing is voodoo, and we can’t sue for that. Others think the parents are scum and deserve nothing from this life.
But you and I agree, Synova. That’s why I didn’t direct any comments to you.
There are no guarentees. That other people are talking about the abortion and testing issue doesn’t mean they don’t believe it’s possible to have a bad doctor who deserves to be sued.
As it is, I agree with them about the testing/abortion issue. While I don’t think it’s terrible that this couple had tests done, considering how serious the condition seems to be, the practice itself raises a whole lot of very serious issues. Since I don’t think “this isn’t a good time” is a good reason to kill a fetus, I’m not likely to think much of “it’s a girl” or “it might be deaf” or “it has the fat gene” or “prone to heart disease” or “diabetes” or…
Lunacy said:
“How narcisistic do we have to be to think that only our own genes can fulfill the promise of the joy of parenthood?”
I agree 100%… but you and I are about the only ones to hold this view, I think, because people are horrified when I say it (not that that stops me from doing so, lol).
Lunacy also said:
“Funny how when the topic of abortion, disabilities, “I wanted a baby but…” discussions come up, nobody ever mentions adoption.
Anyone with a known genetic condition that MAY be passed to a child can avoid rolling the dice completely and select a more known quantity such as a healthy, adoptable child.”
Yes, BUT; the wait for a healthy white infant is about a decade, and that’s IF the parents even qualify to adopt. Private adoptions are very expensive, there’s no guarantee you’ll EVER be chosen by a birth mother to get a kid, and you can still expect a long wait. This makes it unrealistic to expect fertile parents to not give pregnancy a go, and the parenting drive is so strong that people WILL go for it even knowing that they’ll possibly, or even certainly, pass something unpleasant along… even if they don’t believe in abortion and so will have to take whatever they get.
The whole point of having these genetic tests available is that it’s supposed to allow parents to be sure they’re having healthy babies; lay people are NOT expected or required to understand the science behind it, or to bring a lawyer to cross-examine the doctor and the lab technicians… whatever they’re told the results mean is what they reasonably assume is true, and thus what they base the biggest decision of their lives on. It’s the doctor’s responsibility to explain EXACTLY what those results mean and how much faith can be put in them; if a profoundly disabled child is a possibility, the doctor, who is the expert, MUST tell the parents that a 2nd test is overwhelmingly necessary to double-check the 1st one… and if the doctor fails to do so, he/she has failed to provide proper care and should be fully liable for the results.
About adoption:
I was adopted at birth, as was my little sister.
Having been adopted, I had a very strong need to have my own children. When my oldest daughter was born, I can’t describe the feeling of looking for the first time into eyes that resembled mine. I felt a strong need growing up to feel a true blood relationship–and you’ll never understand that unless you’ve been raised in its absence. I don’t think that alone qualifies as narcissism.
The importance of a genetic connection became even clearer when I found my biological mother and father and half a dozen half brothers and sisters. It was truly amazing to learn how much we had in common.
Adoption is great, and there should be more of it. But nothing compares to a true blood relationship. Don’t criticize those who feel a need to have their own offspring.
Starboard,
Your analogy of the car & crash; you must remember that this woman had 50% of the genetic responsiblity, which is known to be defective, and choose to drive anyway. So my point is why is that the paramedic/ambulance driver’s fault! Who arrives at the scene only after the accident/decision to get pregnant/pregnancy occurs.
Malpractice has many definitions, but negligence has only two; the failure to diagnose and the failure to treat.
Are you making the case for the failure to diagnose alligation here?
I’m not an OB and this discussion points out exactly why I am not.
Imhotep:
Are you a physician?
Negligence does not have two definitions in the medical context; any breach of the standard of care that results in damages will strain your relationship with your malpractice carrier. Failure to diagnose, delayed diagnosis, failure to treat, botched treatment, wrong treatment, treatment where none was indicated, etc. Snoozing with your hand on the anesthesia, reading the x-ray backward and yanking the only good kidney (I had that case when I was 29). There are many ways to get in trouble.
The reason I made the analogy between the disabled baby and the bad brakes, is because physicians take their patients as they come. If you fail to diagnose the lung cancer and instead treat the patient for a cold, you lose when the patient’s condition becomes irreversible. No, you didn’t cause the cancer. No, you didn’t force the idiot patient to smoke all her life. But when she came to you, you removed all chance of survival (assuming it was treatable when you had the opportunity to diagnose).
Have you followed the cases where people were given false positive results to AIDs tests? People willingly gave up their livlihoods and squandered all their savings in reliance on the news that they’re toast. And, they’ve been recovering when the false positives resulted from actual negligence. Yeah, they receive the good news that they’ll live, and then proceed to sue.
Starboard,
Both cases sited are simple failure to diagnose. However, malpractice can be failure to comply with standard practice of medicine within the community. For instance, here in the US if a patient complained of abdominal pain a CT scan would be ordered. However, that same patient in the jungles of east Africa would not be expected to be evaluated with a CT scan. Both could die from intra-abdominal catrastrophe, but the physican in east africa would not be liable for malpractice, but the physician in the US would for simple failure to obtain a CT – which is the community standard.
Good nite now, I have nothing further to impart on this matter.
Imhotep:
Thanks for that. I spent the first four years of my legal career defending physicians and hospitals in medical malpractice cases. Fifteen years later, I handled some malpractice cases for patients. You’ve said nothing to affect my understanding of the field. In fact, I doubt that would be possible.
So, what’s your point?
A patient comes in with reason to believe she’s in trouble, and asks for your professional help. It is irrelevant how she got in trouble, or what character flaws she might posess. If she has a condition that you could cure, and you fail her by rendering substandard care, you’re on the hook. Do you disagree? If so, and if you truly are a physician, I feel sorry for your malpractice carrier (and, of course, your patients).
Please check my link to see how I see it in the fuller sense, but one major technical issue is missed in this discussion. Although I could not find it anyplace, I believe the anxious-to-know (= on top of things) mother had chorionic villi sampling (CVS) which usually occurs before week 9 of a pregnancy.
There is a chance that the sampling will be of the mother’s tissue, rather than the child’s. This was a huge red flag in this case; the child was said to be a female and a carrier, just like the mother. The lab didn’t mess up results; they actually got the right results for the tissue they analyzed. Any professional worth his/her salt should have seen this red flag. Further testing would have been done, for example, with an amnio around week 16. It would have been relatively simple to comfirm at that time.
The earlier date and finding issues then would lead to an easier termination, during a private time that the mother was not showing. A termination at 20 weeks (16 wk amnio plus a few weeks to grow the cells) means a woman is public, showing, kind of assured w/CVS her child is relatively normal, more attached.
There were many levels of healthcare-providing messed up. Not only did the lab screw up by not questioning, the lab director did, the genetic counselor did, the ob team did. Nobody should look at CVS results identical to the mother and assume they got embryonic/fetal cells. Nobody.