Florida couple wins $4.5 million “wrongful-birth” award

by Walter Olson on October 11, 2011

They say they’d have aborted their disabled son if they’d known. [Palm Beach Post]

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October 27 roundup
10.27.11 at 8:39 pm

{ 23 comments }

1 L. C. Burgundy 10.11.11 at 9:39 am

Boy, that’s going to be awkward later in life. I hope some of the verdict is set aside for psychiatric counseling for the child when he learns that his parents really, REALLY would have preferred him not to exist.

2 captnhal 10.11.11 at 1:10 pm

The parents claim it would have been better if their child was dead than handicapped. The jury agreed. I expect this to be overturned on appeal.

3 Hugo S. Cunningham 10.11.11 at 1:14 pm

If a verdict like that nudges less-than-competent prenatal counselors out of the business, society will benefit. Mothers do not seek ultra-sound services just to have early-baby pictures to hang on the wall.

4 RB Miller 10.11.11 at 6:27 pm

This is one of those bits of reality that seem so surreal. But, it is reality. We are a nation where we are losing our moral foundations. There is no respect for Life. People choose to kill their own flesh and blood on a consistent basis, throughout the United States and the world.

Domestic politics and international foreign policy seem little, when one thinks of the gravity of something like abortion. When you pile on with the feeling of entitlement, you get a litigious society….flailing about.

econus.blogspot.com

5 Richard A. Harrison 10.11.11 at 8:48 pm

There is nothing I see in the article to suggest a reversal on appeal. The tort of “wrongful birth” is recognized in Florida and the damages awarded were within the range of the testimony at trial. The damages in such cases are intended to compensate for the lifetime of special medical care that will be required. I’m not sure that’s as outrageous as some poeple seem to feel it is.

6 captnhal 10.11.11 at 9:04 pm

To me the outrageous portion of the verdict is the determination that the parents were better off with a dead child than a disabled one. This is discrimination against the handicapped of the cruelest kind. The parents were rewarded because they claim they were denied the information to make a decision to discriminate against the handicapped. Meanwhile small businesses are being successfully sued under ADA because the mirror is an inch too high.

7 Jay Markowitz 10.12.11 at 1:07 am

Statements made by the parents certainly clash against the pro-life setiment and rash of anti-abortion laws Florida has enacted this year. I would love to hear what Rick Scott, champion of these new mandates, has to say about this verdict.

Watch for a new law that will place significant obstacles in the path of those who wish to terminate a late-term pregnancy on a claim of possible future hardship due to cost of raising the child.

8 marco73 10.12.11 at 6:14 am

Maybe I put on rose colored glasses this morning, but I am actually optimistic for this child’s future.
If the parents had “complete” information, this child would have been added to the stack of aborted children in this nation, forgotten by everyone but God.
If the parents had not sued, this child would have been shunted off into a state home, or abandoned in a corner and ignored, just waiting for some disease to claim his young life.
But since he is now supposed to get a lifetime of quality care, with access to potential medical breakthroughs, he has a real chance. I have to assume that someone will watch over the money involved, so that the parents don’t blow it on stupid purchases.
With the advances in prothestics in the pipeline today, maybe, just maybe, this kid will be able to walk and write and go to school and grow up. Beats the hell out of being dead or ignored.

9 BM 10.12.11 at 7:52 am

How do you miss noticing 3 out of 4 limbs? If this was some obscure genetic disorder, I dont think they should have gotten anything.
But how bad do you have to do an ultrasound to miss that? Even I could see details like that on my sons ultrasound pics.

10 w. rogers turner , jr. 10.12.11 at 8:35 am

maybe the defense should have presented this guy’s amazing story, which I saw on ESPN. He appears to have less of the one limb than the Plaintiffs’ son, swims a mile and is an attorney for the city of Pittsburgh.

http://www.gazette.com/articles/springs-48639-guy-born.html

11 William Nuesslein 10.12.11 at 10:02 am

marco73 says: “If the parents had not sued, this child would have been shunted off into a state home…”.

This is troublesome. Unfortunate children are of two types. For one type, kabuki dances by lawyers yields world class care. The other type gets a state home. It seems to me that the astronomical costs to find the luckier children would be better spent in improving the state homes.

12 Hugo S. Cunningham 10.12.11 at 10:23 am

If a State forces a couple to go through with a disastrously handicapped pregnancy, said State should assume 100% of the costs of that decision, without delays or quibbles. That means setting up a *fully-funded* trust at once, protected from future political changes.

13 David Schwartz 10.12.11 at 10:42 am

“To me the outrageous portion of the verdict is the determination that the parents were better off with a dead child than a disabled one.”

Better off *financially*, not better off in some cosmic sense.

Say you hire me to fix your roof, and I damage your roof instead. Say you believe all contractors are thieves, and this validation of your world view has psychological benefits to you well in excess of the paltry $2,000 I stole from you by damaging your roof. You’re still entitled to get the $2,000 in *financial* damages back in court.

Our secular courts are not for cosmic justice. The doctor was negligent and caused financial harm. That’s all.

14 Mannie 10.12.11 at 12:24 pm

Wrongful birth? We have a tool for that.

BANG!

Next case.

15 antiredistributionist 10.12.11 at 3:39 pm

Stick to the subject, Cunningham.

16 Dr. D 10.12.11 at 8:51 pm

The doctors caused none of the disability. Blame genes… bad luck… God… whatever. But the doctors? No possible claim there.

If this mother thought she was better off without this kid and she missed her window to kill him, why not simply allow him to be adopted? No one, and certainly not the results of an ultrasound, forced this woman to accept the financial burden’s that came along with this child.

With the theory involved in this case and considering the expense of our overlawyered system, is every OB liable if they neglected to counsel mothers of lawyers that their kids would financially ruin millions of people if not terminated? Too bad we aren’t better at predicting which fetuses will turn out to be personal injury lawyers…

17 Samson 10.13.11 at 2:37 pm

There is a point here – from “BM” – that the ultrasound had to be abysmally bad if you miss 3 out of 4 limbs. Taking money for doing a job as piss-poor as that amounts to fraud.

18 David Schwartz 10.13.11 at 3:28 pm

“If this mother thought she was better off without this kid and she missed her window to kill him, why not simply allow him to be adopted?”

Say a doctor causes damage to a fetus. Can he get out of having to pay damages by simply arguing that the mother should have had an abortion?

Sure, it’s reasonable to expect people to mitigate their own damages. But asking them to give up their own children to mitigate damages seems outrageously unreasonable to me.

19 B.RAD 10.13.11 at 3:51 pm

Samson

We don’t know when and under what circumstances the ultrasounds were done. They could have been done early on before the limbs buds grow to recognizable extremeties or the patient may have had amniotic band syndrome which can amputate portions the the fetal body, especially the limbs. Scanning could have occured before this and would report 4 limbs. Many factors going into getting a quality scan, some out of the control of the doctor or technician. If the mother is large, or the fetus is scrunched up, you might not seen any of the normal structures.

D. Schwartz

I don’t think you can say the doctor caused the damage to this baby. This was a genetic or random event.

20 captnhal 10.13.11 at 3:59 pm

“But asking them to give up their own children to mitigate damages seems outrageously unreasonable to me.”

Apparently less terrible in the eyes of some than terminating a human life, and yet they win the lawsuit.

21 Dr. D 10.13.11 at 7:49 pm

Sure, it’s reasonable to expect people to mitigate their own damages. But asking them to give up their own children to mitigate damages seems outrageously unreasonable to me.

Unreasonable? The premise of the lawsuit was that she missed her window to abort because of negligence and so now she’s stuck with him (and his expenses). How is it unreasonable to wonder why she didn’t simply allow adoption?

Your scenario would be unreasonable… but it has nothing to do with this case.

22 Turk 10.14.11 at 12:20 pm

The concept of the wrongful birth suit is difficult for everyone.

But one thing that that should not be difficult is that those that are negligent should pay the costs. Because otherwise, it is you and I, the taxpayers, that pay the costs.

23 Dr. D 10.14.11 at 12:54 pm

Turk, precisely my problem with this case (well, that and a basic sense of fairness).

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