Thursday, January 27, 2000
Disabled child's case: Wrongful life?
Justices weigh whether girl can sue doctors
BY SPENCER HUNT
Enquirer Columbus Bureau:
COLUMBUS — The parents of a 6-year-old Springdale girl asked the Ohio Supreme Court on Wednesday to let their daughter sue doctors for allegedly not revealing to them that she would be born with birth defects.
Had they known, the parents said, they would have had an abortion.
Patricia and Lawrence Hester say their doctors never told them about the results of a pre-natal test that indicated Alicia would be born with spina bifida, a defect of the spinal column. Alicia is paralyzed from the chest down.
The parents are suing doctors Leela Dwivedi and Luis R. Saldana for malpractice. They also are raising an unprecedent ed claim in Ohio. The parents want Alicia to collect money from the doctors to pay for the suffering and extra costs her spina bifida will cause throughout her adult life.
Now the justices must decide if someone can sue for being born with a disability. The case also has more far-reaching implications that touch upon the abortion debate and upon families of children with disabilities.
“That's like telling that poor girl, "You should never have been born.' I would never want to do something like that to my child,” said Judy Albert, a White Oak resident whose 20-year-old son has spina bifida. Ms. Albert is president of the Spina Bifida Association of Cincinnati Inc., a support group of 200 area families.
During oral arguments Wednesday, the Hesters' attorney, John Holschuh, said Alicia should be able to sue because her doctors made a mistake.
“The harsh reality is that child was born with these birth defects,” Mr. Holschuh told the court. “It is forseeable that she will have extraordinary expenses in life as an adult.”
The doctors' attorneys say the malpractice case has not been settled, and the doctors haven't admitted to any mistakes. Despite that, they say Alicia shouldn't be able to sue because she must argue through her parents that she never should have been born.
“What would have been the alternative to avoid damage to this child? Termination. That's the only way,” said Michael F. Lyon, the lawyer for Dr. Saldana. “The person who is standing up for the child in court is saying, "This child should be dead.'”
Many of the seven justices appeared troubled by the case and its potential consequences. They also had a hard time deciding if Alicia Hester's lawsuit amounted to a claim of wrongful life, wrongful birth or a simple accusation of negligence.
“What message does that send if we award damages?” asked Justice Alice Robie Resnick.
“What should the consequences be for a physician who gives such a critical test as this and then fails to inform the parents?” asked Justice Paul E. Pfeiffer.
The test in question is called an alpha fetoprotein test. It is a voluntary test usually conducted between the 16th to 19th weeks of a pregnancy that can show parents if a fetus is likely to have an open neural tube defect.
Mr. Holschuh said the Hesters' pregnancy was unplanned. He said the couple, both of whom were near their 40s at the time, decided they would have the baby only if the tests revealed no problems.
Whether the results of that test were accurately reported or not is a matter that still has not been decided in the trial court. The high court is only considering whether the child can join her parents in the suit. The Ohio 1st District Court of Appeals said the child did not have that right.
“The only thing the child can claim is an impaired life that sprang from a genetic defect,” said Ann Ruley Combs, lawyer for Dr. Dwivedi. “The doctors had nothing to do with that.”
Ms. Combs said the case would have a profound impact on doctors if justices ruled in the Hesters' favor.
“We're creating an expectation that every child has an expectation to be born perfect, and that a disability is an injury,” Ms. Combs said.
The Ohio Right to Life Society filed a legal brief in the case urging the high court to reject the Hesters' claim.
“You have a situation here where the only way to avoid injury to a child is to abort him or her,” said Mark Lally, the society's legislative counsel.
“It comes down to saying her life isn't worth living,” Mr. Lally said. “That's not someplace we want to go with our laws.”
Dana Wilkie, executive director of the National Abortion and Reproductive Rights Action League of Ohio, said she hadn't heard of the case until today. But she did offer some support for the parents.
“Certainly, our position is that a woman should be the one to ultimately decide whether to carry a fetus to term,” Ms. Wilkie said. “NARAL of Ohio supports that decision, regardless of what it's based on.”
After the court proceeding, Mr. Hester said that if the doctors had given them the accurate test results they could have attempted some pre-natal surgical procedures that might have reduced the severity of Alicia's condition.
“There were things we might have done to limit the problems she has today,” Mr. Hester said.
Ms. Albert said she can sympathize with the Hesters' dilemma, even though she disagrees with what they are doing.
“They should have been told. They should have been given a choice,” she said. “I think what this (case) says is wrong.”
The court has taken the case under advisement. There is no deadline for a ruling, but the court typically issues its opinions within three to six months.
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