Thursday, March 31, 2005

Wrongful Birth

Interesting article about a couple suing their doctor for wrongful birth:

Rick and Danika VanVooren argued that their doctors were negligent in not informing them about the birth defects that would have prompted them to terminate the pregnancy. They sued in 2002.

"They assert in each cause of action that, but for the negligence of the defendants, they would have terminated the pregnancy," the Idaho Supreme Court wrote.

The court then cited a section of Idaho law that bars lawsuits that say but for act or omission of another person a pregnancy would have been aborted.

Unfortunately, the article doesn't elaborate on the legal concepts involved. I would have found a more detailed discussion useful.


At 7:02 AM, Anonymous Anonymous said...

There's a little more here:

There's also a summary at the Idaho Supreme Court site that gives the case number.

You have to scroll down - I think it's the third or fourth case. The summary says this:

"Rick and Danika VanVooren filed a Complaint and Demand for Jury Trial on May 30, 2002, against Drs. Astin, Crandall, Smith and Coleman, as well as Magic Valley Women’s Health, P.C., and Twin Falls Magic Valley Regional Medical Center. They asserted various causes of action stemming from the defendants’ care of Danika VanVooren during her pregnancy with Bailey VanVooren. The child was born with severe birth defects and died shortly thereafter. The complaint alleged wrongful birth claims. An amended complaint was filed on July 30, 2002, asserting the following causes of action: (1) negligence against all defendants; (2) negligence against Dr. Astin and the hospital relating to a tubal ligation; and (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress.

"Defendant Donald E. Smith answered and later moved for summary judgment in December 2003, claiming I.C. § 5-334 (which prohibits wrongful birth claims) barred all the VanVoorens’ causes of action against him. The other defendants joined the motion, seeking partial summary judgment on the wrongful birth claims. The VanVoorens conceded their negligence claim was precluded by I.C. § 5-334, but argued their claim for negligent infliction for emotional distress was not barred.

"The district court granted summary judgment in favor of Dr. Smith on all claims. Summary judgment was granted in favor of the other defendants on the negligence claim (count one) and on the claim of negligent infliction of emotional distress (count three) to the extent that it relied on a wrongful birth theory. Plaintiffs timely appealed. The district court refused to award attorney fees to Dr. Smith, prompting a cross-appeal."


At 4:16 PM, Blogger ema said...

Thank you.

At 10:52 PM, Anonymous Anonymous said...

"(1) A cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a
person would not have been permitted to have been born alive but would have been aborted.

"(2) The provisions of this section shall not preclude causes of action based on claims that, but for a wrongful act or omission, fertilization would not have occurred, maternal death would not have occurred or handicap, disease, defect or deficiency of an individual prior to birth would have been prevented, cured or ameliorated in a manner that preserved the health and life of the affected individual."

This law was passed in 1984.

Plaintiffs' suit against defendants falls specifically under the first provision of 334, in that they brought a wrongful birth cause of action. "A wrongful birth cause of action is one brought by the parents of an infant born with birth defects, wherein the parents claim (1) the negligence of a physician precluded the parents from making an informed decision as to whether to have the child, and (2) they would have terminated the pregnancy had they been properly advised of the nature and extent of the birth defects."

In the summary judgment opinion, the court said:

"The VanVoorens argue that, even though they specifically alleged wrongful birth claims, they should be able to proceed with their claim of negligent infliction of emotional distress (count three) under notice pleading standards. While they do not contend they pleaded a sufficient claim of negligent infliction of emotional distress, absent the wrongful birth allegations, they point to deposition testimony argued to the district court to support their contention that the claim was properly presented, at least to the extent necessary to avert summary judgment. Their claim is based on testimony in Mrs. VanVooren’s deposition that, had she known of Bailey’s birth defects, she would have taken certain actions to better prepare for the birth. However, deposition testimony is not sufficient to accomplish an amendment to a complaint. At no time did the VanVoorens move to further amend their complaint to state a claim for negligent infliction of emotional distress that did not specifically incorporate and rely upon the wrongful birth allegations." (Emphasis mine.)

So really, the court pretty much had to find in favor of defendants on their summary judgment motion. The court did not order plaintiffs to pay the defendants' legal fees, saying that it did not find the plaintiffs' suit to have been brought frivolously.

So if I have it right, plaintiffs ran afoul of Idaho statute that says you don't have a cause of action on the ground that if you'd known, you would have had an abortion. The plaintiffs might have prevailed - or at least gotten to trial - if they had alleged that defendants' negligence caused their emotional injury without specifying that the injury could have been ameliorated if they'd had a chance to terminate the pregnancy.

I'm not smart enough to assess this properly. I mean, clearly, this suit was fatally flawed. But is the law wrong? Is it the legislature's attempt to put yet another obstacle in the path of abortion rights? The answer to both might be yes, but on the other hand, I have a hard time visualizing the actual compensable damages in this case. I can't see that having the opportunity to abort the fetus would be significantly less traumatic than bringing it to term - assuming that a definitive diagnosis of fatal birth defects would most likely have occurred fairly late in the pregnancy. I mean, both outcomes are pretty horrible.

If this case had been pleaded properly and had gone to trial, we probably would have more information about what experts testified as to the earliest date defendants should have known that the fetus was doomed. If somehow they ought to have known quite early in the pregnancy - at a time in which a therapeutic abortion could have been done via d and c, then you'd have a statutory issue. An abortion at 10 weeks is different from one at 23 weeks, but this statute wouldn't recognize that. You'd have to plead your case on more injury than that caused by not being able to have an abortion. That's not good, but it seems pretty amenable to working around that in the pleadings, especially given the careful qualification presented in part 2 of 5-334.

What do you think?


At 12:09 AM, Blogger ema said...


Again, thank you for the info.

So if I have it right, plaintiffs ran afoul of Idaho statute that says you don't have a cause of action on the ground that if you'd known, you would have had an abortion.

I think you do. It would be interesting to know what is the legal reasoning behind the 1984 law. In other words, why isn't an act or omission preventing an abx actionable?

At 1:37 AM, Anonymous Anonymous said...

Well, according to NARAL's overview of Idaho's abortion laws (NARAL gives them an "F"), summarized here, it seems like 5-334 is a smallish sort of brick added to the wall that blocks pro-choice options.

They're saying, "If you say you suffered injury because you were deprived of an opportunity to kill a preborn human, we, i.e., Idaho, say that we do not concede that an injury to you is possible."

I guess it's analogous to those statutes that restrict abortion except if there's a risk to the life or health of the mother. In reasonable times, a risk of suicide or serious mental illness is assumed to be sufficient, and caring physicians will liberally cite that risk. In unreasonable times, it'd have to be shown that more likely than not, continuing the pregnancy would result in the death of the mother. In horrific times, even that wouldn't be enough, because the pre-born sometimes break the vessel that held them, and it's not the pre-born's fault, and anyway, the vessel is deemed sacred posthumously.

Okay, now I'm being gratuitously obnoxious, so I will stop.



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