Ohio justices rule parents can sue for fetal test error ["wrongful birth"]

Associated Press ^ | Mar. 05, 2006 | By Andrew Welsh-Huggins

[Gelato]

Ohio justices rule parents can sue for fetal test error

COLUMBUS, Ohio – Parents can sue a doctor if a genetic screening misses a severe or fatal condition that would have caused them to seek an abortion, a divided state Supreme Court ruled Friday.

The 4-3 decision limited such lawsuits to costs associated with a pregnancy and birth, saying such parents could not sue for pain-and-suffering damages or repayment of the costs of raising a disabled child.

The decision was a partial victory for a Kentucky couple who sued a Cincinnati obstetrics practice and hospital that provided genetic counseling and told them their fetus did not have a genetic disorder that the mother carried. But the 8-year-old boy has the disorder and can’t speak or crawl.

The finding overruled a lower-court decision that Richard and Helen Schirmer could sue for the costs of raising their disabled son.

Justice Maureen O’Connor, writing for the majority, noted that the Schirmers had indicated they would have obtained an abortion if they had received the correct diagnosis. As a result, she said they could not sue for costs above those of raising a child without a disability.

The case was the first time Ohio’s justices had issued a definitive ruling on a claim of “wrongful birth.” A handful of states allow such claims by parents seeking compensation for the financial burden of caring for a severely disabled child or the emotional trauma of watching a baby die shortly after birth.

Attorney Frank Woodside, who represents Children’s Hospital Medical Center in Cincinnati, said the decision was correct.

Doctors had no involvement in the actual defect, he said, and the law doesn’t allow damages if the disabling condition existed from the point of conception

[Gelato]

From another article:

The case landed in the high court when a Cincinnati couple, Helen and Richard Schirmer, took their doctors and Cincinnati Children's Hospital Medical Center to court. Their 8-year-old son Matthew was born with Trisomy 22, a genetic disorder that causes mental retardation and multiple, severe physical disabilities.

The couple decided to continue the pregnancy because fetal testing indicated the child was fine. The Schirmers said they would have sought an abortion had they been warned.

Wrongful birth claim supported

[jw777]

Love your child. Don't kill it.

[housewife101]

So doctors are now supposed to be God and predict all. I have been going to doctors for 14 years. Only last year did I receive a diagnosis. Doctors can't and never will know everything. It's not HUMANLY possible.

Secondly, every child is a gift from God. My parents now have two handicapped children. It didn't develop until highschool years for both of us, but it has been no less painful. Thankfully, my parents don't believe in abortion and would have wanted us anyway-even if they had known. Thank God for wonderful parents.

[The Old Hoosier]

Time for the legislature to forbid this claim by statute.

[bushinohio]

As an Ohioan I am disgusted by this ruling.

[PISANO]

How would you like to be the son or daughter of this couple and find out they sued a doctor because YOU were born!!!

[beezdotcom]

Maybe they should just kill the child now, and claim temporary insanity because they were distraught at the doctor. Problem solved.



Do I really need a sarcasm tag?

[walford]

So babies don't come with a warranty?

What are doctors' response to this going to be to this ruling? Err on the side of death?

The doctor thinks while looking at a sonogram: *Well, that's a funny-looking lump. It might be his foot, it might be a third arm.*

"Ahem. Mr. & Mrs. Jones, your baby is a freaking monstrosity. We recommend you abort now before the bills pile up."

"Oh thank you, Doctor. You're SO compassionate!"

[Gelato]

The parents wish they had killed their son while they had the chance; while it was "legal."

They blame the doctors because their unwanted son lives.

A sad commentary on our society today.

[boop]

I'm confused. Why is the doctor liable for a lab test being inaccurate? And even then, who ever said that ANY medical test is 100% correct? If the parents felt this strongly, maybe they should have aborted first, asked questions later.

[JustaDumbBlonde]

"... told them their fetus did not have a genetic disorder that the mother carried."

Since the mother knew that she carried a gene for a horrible condition, adoption may have been the better decision for this couple.

To expect the doctors to be all-seeing and all-knowing is ridiculous.

I wonder if the doctors who performed the testing told her that the results were absolute?

Had she and her husband decided to adopt -- and the child later developed a condition -- would they then have sued the agency over what they deem an imperfect child?

Sounds like these folks wanted nothing short of what they viewed as a "perfect" child. They fail to realize that God sees no defect here.

[beezdotcom]

maybe they should have aborted first, asked questions later.

They want to be free of any pangs of guilt - if a doctor TELLS you the baby will be deformed, it's like an abortion "Get Out Of Guilt Free" card.

[LoudRepublicangirl]

I believe there are those who would try to sue God if they could.

[TheBattman]

This is just plain sick - and for the courts to even THINK about supporting such a position makes me physically ill.

Abortion on the basis of a genetic test is just plain wrong - particularly when you consider that tests can show a problem that never manifests itself (and isn't completely rare).

Someone please name ONE medical test today that is guaranteed to be 100% perfectly correct EVERY time, without fail, without error.

I'm waiting....

[WestVirginiaRebel]

Some disorders can skip a generation.

The mother should have done her homework. Or maybe she deliberately left out a few things about her family history.

Can the doctor countersue? Doctors aren't gods and depend on accurate information from their patients to do their jobs properly.

[AuH2ORepublican]

"Justice Maureen O’Connor, writing for the majority, noted that the Schirmers had indicated they would have obtained an abortion if they had received the correct diagnosis. As a result, she said they could not sue for costs above those of raising a child without a disability."

---

Justice Maureen O'Connor is an idiot. First she says that a couple has the right to receive compensation from a doctor who screwed up on a prenatal screening, which means that the "right" to abortion possessed by parents has reached down to apply to the right of parents not to give birth to "imperfect" children. So this Justice O'Connor apparently wants to go back to the eugenics movement of the 1920s and to that dreadful Supreme Court opinion by Oliver Wendell Holmes in which he wrote that "three generations of imbeciles is enough" and upheld forcible sterilizations of low-IQ individuals.

But let's grant her, for purposes of argument, that abortion is a constitutional right like the free exercise of religion and having jury trials. Under such premise, she proves to be an even bigger idiot by using such illogical reasoning to limit the award to the parents. She writes that *because the Schirmers would have aborted their baby had they known he was severely retarded*, they are thus entitled only to the cost of pregnancy and childbirth. That judge got it completely backwards. Had the Schirmers said that they *would not* have aborted their baby even had they known of his disability, then they would only be able to sue for the inability to prepare for welcoming a disabled child into the world, but not the cost of raising a disabled child, since even had the doctor given them perfect information they would have still given birth to and raised their child. The fact that the Schirmers said that they *would* have aborted their baby had they known he was retarded means that, had the doctor performed the screening properly, the Schirmers would not only have escaped paying for the last few months of prenatal care and the cost of childbirth, but also for the cost of raising the child. The fact that the Schirmers would have aborted is evidence *for*, not against, compensating them for the cost of raising their child.

Maureen O'Connor not only enables the evil practice of abortion, she apparently lacks any ability to reason or analyze legal issues logically. I wonder what those prenatal screening tests would have said about her intelligence when she was a fetus.

Full disclosure: My wife and I are expecting a baby, and we chose not to undergo screening tests for disabilities, since we knew that we would have and raise our baby regardless of how God made her (we now know our baby's a girl). But even for people who for some twisted reason do not believe that aborting a disabled child is murder and thus immoral, they should be aware that I know someone who was diagnosed in the womb as being paraplegic and severely retarded, but her parents refused their doctor's advice that they abort her; she turned out to be paraplegic but mentally gifted, and ended up graduating from an elite university and law school. So the "imperfect" child that is aborted could turn out to be a genius. And even if he or she isn't, he or she is still entitled to the same human dignity as the rest of us.

[madprof98]

This is why doctors today routinely advise abortion for women with any chance whatever of a problem pregnancy.

[Ghengis]

The voters of Ohio were not informed during their respective campaigns that these Justices would be such shallow idiots. Can we sue?

[gidget7]

Amen, and thank God for people like you, rational and able to reason that.

[gidget7]

Unfortunately OBGYN's are disappearing because of the malpractice insurance is so high. This will drive many more away.