Thursday, September 07, 2000

Girl has no right to sue

'Wrongful life' case decided by high court

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — A 7-year-old Springdale girl with spina bifida cannot sue her doctors for allowing her to be born, the Ohio Supreme Court ruled Wednesday.

        In a heart-wrenching case that touches on the abortion debate and resonates with families of children with disabilities, the high court decided Alicia Hester has no legal malpractice claim against her parents' doctors.

  Nearly all pregnant women in America go through at least some ultrasound and blood tests to check the health of their developing baby and themselves.
  Common types of prenatal testing include:
  Alpha fetoprotein screening: The AFP blood test, usually performed at 14-16 weeks, measures the amount of fetal protein in the mother's blood. High levels can indicate neural tube defects such as spina bifida. Low levels can mean Down syndrome. The test is commonly used to decide whether a more risky amniocentesis is warranted.
  Amniocentesis: This involves using a needle to collect a small amount of amniotic fluid. Analyzing the fluid can reveal genetic abnormalities and neural tube defects such as spina bifida. Done early, at 12-14 weeks, the test carries about a 1 percent risk of miscarriage. At 15 to 20 weeks, the miscarriage risk drops to about 1 in 200.
  Chorionic villi sampling: This involves collecting tissue from connections between the fetus and placenta via a tube through the vagina or a needle through the belly to check for Down syndrome, Tay-Sachs, cystic fibrosis and other inherited diseases. Performed 10-12 weeks into the pregnancy, the CVS test has about a 1 percent risk of causing a miscarriage.
        Although it creates a rule for other Ohio courts to follow, the 4-3 decision revealed the justices are closely divided over this new and controversial issue.

        Patricia and Lawrence Hester, who sued on their daughter's behalf, say doctors Leela Dwivedi and Luis R. Saldana didn't tell them about a prenatal test that indicated Alicia would be born with birth defects. If they had been told, the Hesters said, they would have had an abortion.

        The Hesters have filed their own malpractice complaint. But they wanted Alicia to sue as well, so she could cover her extra expenses when she is an adult.

        Chief Justice Thomas J. Moyer, writing for the majority, said courts do not have the authority to decide if a person should or should not have been born. He said a court would have to agree Alicia should not have been born to award damages.

        “She would either be born with that condition, or not born at all,” Justice Moyer wrote. “Judges and jurors are no more able to judge the value of a life with disabilities versus nonbeing, than they are able to judge the value of life in a "normal' condition versus nonbeing.”

        Agreeing with Chief Justice Moyer were justices Francis Sweeney, Deborah Cook and Evelyn Lundberg-Stratton.

        The other three justices, led by Justice Paul E. Pfeifer, said there wasn't enough evidence to make an informed decision. He said a trial court should have decided the case before it got to the Supreme Court.

        “Might it not be injudicious of this court to assume that a lifetime of dependence is not an injury?” Justice Pfeifer wrote.

        Justices Andrew Douglas and Alice Robie Resnick agreed with Justice Pfeifer.

        Spina bifida is a defect of the spinal column that causes mild to severe disabilities. In a very brief interview outside Supreme Court in January the Hesters said the condition has left Alicia paralyzed from the chest down.

        As they have since January, the Hesters declined to comment about their daughter and the decision. Attorney John Holschuh Jr. said his clients are disappointed, but said they will press their own case in Hamilton County.

        That case, before Judge David Davis, was suspended while the Supreme Court mulled its decision. Mr. Holschuh said he does not know yet whether he will ask the justices to reconsider their decision or appeal to a federal court.

        The ruling came as a relief to Sharon Guard, whose 11-year-old daughter Allie was born with Down syndrome. Ms. Guard called the Hesters' lawsuit “horrendous” and said it sent the wrong message about the value of a disabled person's life.

        Michael Lyon, an attorney for Dr. Saldana, said the Supreme Court could not have ruled in the Hesters' favor. To do so, he said, would have opened a door for people born with disabilities to unfairly sue their doctors.

        “The doctors didn't cause the defects,” he said.

        The case also drew the attention of the Ohio Right to Life Society, which filed a legal brief urging the court to deny the Hesters' suit. Right to Life attorney Mark Lally praised the high court for making a wise decision, though it wasn't unanimous.

        “We would have preferred that everyone on the court would have seen something as obvious as the fact that children aren't injured by being born,” Mr. Lally said.

        The Hesters' case involved an alpha-feta protein test. It is a voluntary test usually conducted between the 16th and 19th weeks of a pregnancy that can show whether a fetus is likely to have an open neural tube defect.

        The Hesters' claim that they were never informed about the test results has not been proven in court. That issue will be taken up when the parents' suit is revived in Judge Davis' courtroom.

        Full text of opinion online

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