Friday, January 28, 2000
Wrongful birth suit uncharted territory
Ohio tackles emotional case for 1st time
BY SPENCER HUNT
Enquirer Columbus Bureau
COLUMBUS — Crippled with spina bifida, Alicia Hester is at the center of a “wrongful birth” suit, an emerging type of malpractice case that is increasingly finding its way into U.S. courtrooms.
Although the Ohio Supreme Court is dealing with this for the first time, other states have decided similar cases with mixed results.
In the Ohio case, Patricia and Lawrence Hester of Springdale want the state's high court to let their 6-year-old daughter sue her doctors, essentially for allowing her to be born. The Ohio justices heard oral arguments in the case Wednesday.
The parents say the doctors failed to tell them about a test that indicated Alicia would suffer from birth defects. Had they known, the parents say they would have had an abortion. Alicia is paralyzed from the chest down.
Though attorneys for Drs. Leela Dwivedi and Luis R. Saldana dispute the Hesters' malpractice accusations, the Ohio Supreme Court must now decide if a disabled child is entitled to collect money if a doctor made a mistake.
“It's definitely cutting-edge law,” said Betsy Malloy, a University of Cincinnati law professor who specializes in health care and disability civil lawsuits. “I think this kind of case could become more frequent.”
As prenatal genetic testing becomes more common and different types of tests become available, Ms. Malloy predicts state courts will see more lawsuits.
They could be filed on behalf of parents who got inaccurate test results, she said, or in cases where parents never were told about a particular test that could have been performed.
Other states already are tackling the emotional debate.
In July, the Georgia Supreme Court denied a wrongful birth claim filed by the parents of a boy stricken with Down syndrome.
The couple said they would have had an abortion if they had known, but their doctor had advised them against taking a prenatal screening test.
A case filed in Salt Lake City in June also may find its way to the Utah Supreme Court. Terry Borman and Marie Wood claim their doctor played down the results of tests that indicated their 1-year-old daughter would be born with Down syndrome.
The couple's attorney, Thomas Schaffer, said his clients never have said they would have had an abortion. “We're saying they should have had the right to make an informed decision,” he said.
Although the suit asks for damages on the child's behalf and the parents', Mr. Schaffer said he's not sure the Utah courts will recognize the child's claim.
“I don't think the child's case is as strong as the parents,” he said. “The parents can say, "Look, we have to raise this child.' There are several cases out there where courts have denied claims filed on behalf of children.”
Legal briefs filed by attorneys on both sides of the Hester case show several verdicts in lawsuits that are similar, but not identical to the Hesters'.
Courts in Wisconsin, Idaho, New Hampshire and Arizona refused lawsuits filed on behalf of children whose doctors failed to diagnose the effects of rubella before the child was born. Courts in Delaware, New York, West Virginia and Illinois have rejected similar claims based on different genetic birth defects.
A few other states have upheld a disabled child's right to sue.
In 1997, the Rhode Island Supreme Court awarded damages to a child who was born with birth defects after doctors failed to sterilize the mother. In 1984, the Supreme Court of New Jersey allowed a child to sue his doctors for their failure to warn parents he might suffer from congenital rubella syndrome. And in 1983, the Washington Supreme Court let a child born with defects caused by the seizure medication, Dilantin, sue for his medical costs.
The Hesters' attorney, John Holschuh Jr., said he thinks his best argument stems from the fact Ohio trial and appellate courts have upheld the Hesters' right to sue.
“So why can't the child (sue)? We want the court to take that next step,” Mr. Holschuh said.
An attorney representing one of the Hesters' doctors said the Ohio Supreme Court will have a hard time making that choice. Although there are similar cases that have been decided in other states, Michael Lyon said the justices will have set down an entirely new policy for Ohio's courts to follow.
“It's a tough case,” Mr. Lyon said.
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