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Malpractice Issues in Radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.
Received July 9, 2003;
accepted after revision July 9, 2003.
Address correspondence to L. Berlin
(lberlin{at}rsh.net).
The Case
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By the time the patient reached her 24th week of gestation, the material obtained from amniocentesis had been evaluated and found to be normal. On this follow-up sonographic examination, the sonologist noted that the third ventricle fluctuated in size during the examination but nonetheless appeared to be normal. The patient was asked to return in 3 weeks.
On the patient's third sonographic examination, the sonologist noted a small oblong cyst measuring 1.5 x 0.8 cm just cephalad to the third ventricle that he believed was most likely an interhemispheric arachnoid cyst. The sonologist considered the possibility that the findings could be indicative of agenesis of the corpus callosum, but because he believed that the third ventricle itself was not dilated, he told the parents that he believed the fetus was free of any significant abnormality.
Eight weeks later the patient gave birth to a baby girl who had agenesis of the corpus callosum and multiple central nervous system and congenital cardiac anomalies.
At the age of 2 years the child, who remained markedly mentally retarded and physically disabled, and her parents filed a wrongful life medical malpractice lawsuit against the sonologist. The suit alleged that the sonologist's failure to advise the parents of the substantial probability that their fetus suffered from severe brain abnormalities precluded them from terminating the pregnancy.
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The defendant sonologist's malpractice insurance carrier arranged to have the sonographic images reviewed by two independent experts in obstetric sonography. Both agreed that findings suggestive of agenesis of the corpus callosum were present, and thus neither could offer any support for the defendant's sonographic interpretation.
Nevertheless, the defendant sonologist was adamant that his assessment of the sonograms had been reasonable and within the standard of care, and he believed he could effectively and convincingly explain his interpretation to a jury if called on to do so at trial. Predicting a low likelihood of prevailing on the standard of care issue, the defense team looked at the question of alleged damages. Experts consulted by the defense attorney agreed that a high percentage of babies born with isolated agenesis of the corpus callosum had normal or near-normal intelligence and went on to live normal or near-normal lives. None of these consultants said that they would have recommended voluntary termination of pregnancy based on sonographic findings suggesting an isolated agenesis of the corpus callosum, especially when the amniocentesis findings were normal.
Attention was then turned to the question of whether the child's parents would have elected to have the pregnancy terminated had they been told that there was a likelihood of agenesis of the corpus callosum. In their respective depositions, the child's mother and father testified that they would have opted for abortion. However, both the patient's obstetrician and the defendant sonologist, in their depositions, contradicted the parents' claim, testifying that the parents had indicated to them that they would proceed with termination only if the amniocentesis had abnormal findings.
As the period of legal discovery continued, the attorney for the plaintiff produced a report from a life care planner who estimated that the cost of maintaining reasonable care for the child was approximately $120,000 annually. Faced with the possibility of a jury trial in which a profoundly neurologically impaired and mentally retarded child would be brought before a jury, with expert witness testimony that the defendant sonologist had breached the standard of care, with no defense expert witness testimony to support the defendant's sonographic interpretations, with the testimony of a health care planner that the estimated cost of caring for the child until the age of 21 was $2.5 million, and with contradictory testimony as to whether the parents would have consented to terminating the pregnancy had they been informed of a strong possibility that the patient had agenesis of the corpus callosum, the defendant, his lawyer, and the claims manager of the defendant's insurance company concluded that the lawsuit should be settled. After much negotiation, the case was settled for $850,000.
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The Legal Evolution of Fetal Rights
In no other medical–legal area do the fields of theology, philosophy,
ethics, medical science, jurisprudence, and politics converge as forcefully as
in the question of whether a child can claim that but for the negligence of a
physician, he or she should not have been born. The legal concept of
"wrongful life"— in other words, that nonexistence of a
child would be preferable to life itself, albeit with handicaps—delves
into profound humanistic issues that have perplexed the courts for more than a
century. Almost all the litigation alleging wrongful life has arisen in the
context of a medical malpractice lawsuit, similar to the case described in
this article, in which a child born with debilitating congenital anomalies
files suit against a physician for failing to advise his or her parents during
the pregnancy that the parents should consider abortion because of a
reasonable likelihood that the fetus is developing abnormally. We shall begin
this discussion with a brief historical review of how the courts have viewed
legal rights of unborn fetuses.
The first appeals court decision in the United States that addressed the right of a child to be compensated for alleged injuries sustained as a fetus was rendered by the Massachusetts Supreme Court in 1884. A woman who was in her fourth month of pregnancy fell on a road. Shortly thereafter an infant was born live, but the infant died several minutes later. The mother later filed a lawsuit claiming negligence on the part of the owner of the property on which she and her unborn child fell. Delivering the court's decision that rejected the claim of the child was the famous American jurist Oliver Wendell Holmes [2]:
Because the unborn child had been part of the mother at the time of the injury, any recoverable damage to the child was recoverable by the mother.... No Court, so far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it while in its mother's womb.... If a man might owe a civil duty and incur...liability to one not yet in being, [by] causing an infant to be born prematurely...we should then be confronted by the question whether an infant dying before it...separated from its mother could be said to have become a person recognized by the law.
The court rejected such recognition.
The Massachusetts Supreme Court's ruling denying restitution for prenatal injuries remained a common law precedent in the United States for 62 years. Then, in a case considered by many jurists to be the seminal case for allowing compensation for prenatal injury [3], a federal court for the District of Columbia in 1946 [4] reversed the decision of the Massachusetts Court. In that matter a child suffered prenatal injuries and filed a lawsuit against the defendant who allegedly caused the injuries. Relying on the precedent set by the earlier Massachusetts decision, the defendant filed a motion to dismiss the lawsuit, contending that because the child had not been born when the injury occurred, no legal basis existed on which to file a lawsuit. The federal judge, however, allowed the lawsuit to proceed [4]:
The question raised is whether an infant has a right of action springing from the alleged fact it was taken from its mother's womb through professional malpractice, with resultant consequences of a detrimental character.... The rather anomalous doctrine announced by Mr. Justice Holmes that an [unborn] child has no juridical existence and is so intimately united with its mother as to be a part of her and as a consequence is not to be regarded as a separate, distinct, and individual entity, which apparently has been relied upon as dispositive and controlling [since 1884, is no longer acceptable].Here, however, we have a viable child—one capable of living outside the womb. Are we to say now it has no legal standing in court or elsewhere? Modern medicine is replete with cases of living children being taken from dead mothers.... A fetus is not a part of its mother... It has its own bodily form and members, manifests all of the anatomical characteristics of individuality, possesses its own circulatory, vascular, and excretory systems and is capable now of being ushered into the visible world....
If a child after birth has no right of action for prenatal injuries, we have a wrong inflicted for which there is no remedy.... If a right of action be denied to the child, it will be compelled, without any fault on its part, to go through life carrying the seal of another's fault and bearing a very heavy burden of infirmity and inconvenience without any compensation.... It is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.
The absence of precedent should afford no refuge to those who by their wrongful act, if such be proved, have invaded the rights of both the mother and child.
Twenty-one years later the first lawsuit filed by a child alleging wrongful life reached an appeals court. In that case, a baby boy in New Jersey was born with severe auditory and sight impairments resulting from his mother's rubella infection. The child and his parents sued physicians for allegedly failing to inform the parents of the association between rubella and congenital abnormalities, and further claimed that the parents would have procured an abortion had they been properly apprised of the facts. In the 1967 written decision that made mention of the state's strict limits on abortion by which it believed itself to be constrained, the New Jersey Supreme Court refused to recognize any basis for the lawsuit, and dismissed it [5].
In 1973, the United States Supreme Court, in the groundbreaking case Roe v Wade, recognized that women have a constitutional right to choose to terminate a pregnancy [6].
Seven years after Roe, for the first time in the nation a state appeals court upheld the right of a child to claim damages for wrongful life. An infant girl was born with Tay-Sachs disease and alleged that genetic tests performed on her mother during pregnancy were negligently performed and interpreted. In a lengthy and impassioned decision, a California appellate court stated [7]:
The appeal presents an issue of first impression in California: what remedy, if any, is available in this state to a severely impaired child—genetically defective— born as a result of defendants' negligence in conducting certain genetic tests of the child's parents—tests which, if properly done, would have disclosed the high probability that the actual, catastrophic result would occur?...Plaintiff, in essence, was seeking damages for negligence which resulted in her birth; the action was thus termed one for wrongful life, a cause of action which, when brought by the infant so born, has almost universally been barred in various factual contexts by courts in jurisdictions other than California.... The term wrongful life will be confined to those causes of action brought by the infant alleging that, due to the negligence of the defendant, birth occurred.... Of some significance with respect to this question is the fact that in 1973, Roe v Wade was decided by the United States Supreme Court. The nation's high court determined that parents have a constitutionally protected right to obtain an abortion during the first trimester of pregnancy, free of state interference. We deem this decision to be of considerable importance in defining the parameters of "wrongful-life" litigation....
[Previous courts have] explained that one of the most deeply held beliefs of our society is that life—whether experienced with or without a major physical handicap—is more precious than non-life. [The child], by virtue of its birth, will be able to love and be loved and to experience happiness and pleasure— emotions which are truly the essence of life and which are far more valuable than the suffering the child may endure.... Whether it is better to have never been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery that would lead us to the field of metaphysics, beyond the realm of our understanding or ability to solve....
[There has been a] dramatic increase in the last few decades of the medical knowledge and skill needed to avoid genetic disaster... Genetic defects represent an increasingly large part of the overall national health burden... We have no difficulty in ascertaining and finding the existence of duty owed by medical laboratories engaged in genetic testing for parents and their as yet unborn children to use ordinary care in administration of available tests for the purpose of providing information concerning potential genetic defects in the unborn.... We find no bar to a holding that the defendants owed a duty to the child plaintiff before us and breached that duty.... The reality of the "wrongful-life" concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. The certainty of genetic impairment is no longer a mystery. In addition, reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights....
The "wrongful-life" cause of action with which we are concerned is based upon negligently caused failure by someone under a duty to do so to inform the prospective parents of facts needed by them to make a conscious choice not to become parents.... The complaint sought costs of care as an element of special damages, an appropriate item of recovery.
Four years later the Supreme Court of New Jersey for the first time held that a child could recover treatment and rehabilitation costs associated with handicaps resulting from his mother having had rubella during her first trimester of pregnancy [8]. The child filed a malpractice lawsuit against three board-certified obstetricians for negligently failing to diagnose his mother's German measles during her pregnancy, thus depriving his parents of the choice of terminating the pregnancy.
The court began its decision with a historic survey of the "changing landscape of family torts" [8]:
Originally that landscape presented a bleak prospect both to children born with birth defects and to their parents. If a doctor negligently diagnosed or treated a pregnant woman who was suffering from a condition that might cause her to give birth to a defective child, neither the parents nor the child could maintain a cause of action against the negligent doctor.... Prevailing policy considerations, which included a reluctance to acknowledge the availability of abortions and the mother's right to choose to terminate her pregnancy, prevented the courts from awarding damages to women for not having an abortion.... Wrongful life refers to a cause of action brought by or on behalf of a defective child who claims that but for the defendant doctor's negligent advice to or treatment of its parents, the child would not have been born.... In the present case, the plaintiffs do not allege that the negligence of the defendant doctors caused the congenital syndrome from which the infant plaintiff suffers. Neither do plaintiffs claim that the infant ever had a chance to be a normal child. The essence of the infant's claim is that the defendant doctors wrongfully deprived his mother of information that would have prevented his birth. The essence of the infant's cause of action is that its very life is wrongful.
The New Jersey Supreme Court then went on to point out that the parents of the child were not able to file their own medical malpractice lawsuit because the statute of limitations had expired. The court, however, in rather poetic language then focused on how the child's disabilities affected the entire family [8]:
The foreseeability of injury to members of a family other than one immediately injured by the wrongdoing of another must be viewed in light of the legal relationships among family members. A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer. The filaments of family life, although individually spun, create a web of interconnected legal interests. This Court has recognized that a wrongdoer who causes a direct injury to one member of the family may indirectly damage another. When a child requires extraordinary medical care, the financial impact is felt not just by the parents, but also by the injured child. As a practical matter, the impact may extend beyond the injured child to his brothers or sisters. Money that is spent for the health care of one child is not available for the clothes, food, or college education of another child. Recovery of the costs of extraordinary medical expenses by either the parent or the infant, but not both, is consistent with the principle that the doctor's negligence vitally affects the entire family. And while logical objection may be advanced to the child's standing and injury, logic is not the determinative factor and should not be permitted to obscure that he has to bear the frightful weight of his abnormality throughout life, and that such compensation as is received from the defendants should be dedicated primarily to his care and the lessening of his difficulties. Law is more than an exercise in logic, and logical analysis, although essential to a system of ordered justice, should not become an instrument of injustice.... Here, the parents' claim is barred by the statute of limitations. Does this mean that the child must forgo medical treatment for his blindness, deafness, and retardation? We think not. We hold that a child or his parents may recover special damages for extraordinary medical expenses incurred during the infancy, and that the infant may recover those expenses during his majority.
Wrongful Birth
As has already been explained, malpractice lawsuits alleging wrongful life
are brought by a handicapped child against a physician for depriving the
child's parents of medical information necessary for them to make an informed
decision regarding terminating a pregnancy
[3]. Parents of the handicapped
child often file their own lawsuit alleging "wrongful
birth"—that they are injured because they must live with and care
for a child who will not live a normal, healthy life. Although wrongful birth
is similar to wrongful life in certain respects, courts have drawn
distinctions between these two types of legal actions. A 1987 decision of the
Illinois Supreme Court clearly distinguished wrongful birth from wrongful
life, but before reviewing it we must first consider a case decided by the
same court 10 months earlier.
The transformation from rejection to acceptance, albeit reluctant acceptance, that has occurred in the nation's courts regarding wrongful life and wrongful birth lawsuits can be illustrated by looking at two decisions of the Illinois Supreme Court that were rendered 10 months apart. The first was in 1986 and involved a young boy who filed a malpractice lawsuit against his mother's obstetrician for failing to administer tests for Tay-Sachs disease or even to inform the parents of the possible occurrence of the disease. The child asserted that his parents would have aborted the pregnancy had they been informed of the appropriate information. A majority of the Illinois Supreme Court summarily rejected the lawsuit on the grounds that there was no acceptable legal cause of action.
However, the court's chief justice disagreed and rendered a dissenting opinion that became a harbinger of things to come within less than a year [9]:
I respectfully dissent. This Court has no duty to decide philosophical issues. It has a duty to decide cases. The majority, unfortunately, enmeshes itself in a philosophical issue which it has no competence to resolve to the exclusion of a case, that of the diseased infant, which cries out for redress.... By its decision today, the Court implicitly decides that the boy was better off enduring a life of pain, blindness, deafness, paralysis, seizures, and mental retardation, inevitably ending in early death, than not living at all. The Court is no more or less competent to render that judgment than to render any other. Given the nature of the birth defects involved in this case, non-life may have been preferable to life. Tay-Sachs disease is a fatal genetic disorder.... The majority provides no support for the notion that a short life of excruciating pain, devoid of any redeeming benefits is preferable to non-life. The sober reality with which we, as judges, must come to grips is that the boy endured immense pain and suffering that he would not have had to endure had defendants not been negligent. To hold that he was not injured as a result of defendants' negligence not only shunts reality but also imposes a cruel hoax upon the people involved in these tragic circumstances. It is surely small comfort to the child to know that the majority believes his life was worth living. While our society and our legal system unquestionably place the highest value on all human life, we do not think it is accurate to suggest that this state's public policy establishes—as a matter of law—that under all circumstances impaired life is preferable to non-life.The majority is, of course, correct that the preponderance of authority opposes the award of general damages for wrongful life. But it is worth noting that there is a growing body of persuasive opinion to the contrary. Moreover, imposition of liability in this case would have real and practical benefits. Recognition of liability here would allocate the costs of negligent genetic screening to the party who received the financial benefit from medical supervision of pregnancy, the attending physician. It would deter the provision of inaccurate advice. It would compensate the victim for his suffering in circumstances where that suffering prevents him from deriving any tangible benefits from his own existence.... Given widespread medical knowledge of Tay-Sachs and the fact that it is confined to Ashkenazic Jews of Eastern European origin, a trier of fact might well determine that a physician would be negligent in failing to inform parents of Jewish ancestry that their child might be born with Tay-Sachs. Therefore I dissent from the majority.
Ten months later the Illinois Supreme Court was confronted once again with similar medical facts and legal arguments. This time, however, it reached a different conclusion. A child and the child's parents sued physicians and a hospital for failing to advise the parents that there was a reasonable likelihood of their giving birth to a child with hemophilia. On the basis of allegedly inadequate information, the parents chose to proceed with the pregnancy, at the end of which the mother gave birth to a baby boy afflicted with hemophilia. The Illinois Supreme Court addressed the two separate causes of action, wrongful life and wrongful birth, in a detailed, philosophical manner [10]:
We turn now to the issues before us, whether actions for wrongful life and wrongful birth should be recognized in Illinois. "Wrongful birth" refers to the claim for relief of parents who allege they would have avoided conception or terminated the pregnancy by abortion but for the negligence of those charged with prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child. As a proximate result of this negligently performed or omitted genetic counseling or prenatal testing, the parents were foreclosed from making an informed decision whether to conceive a potentially handicapped child or, in the event of a pregnancy, to terminate the same. The corresponding action by or on behalf of an infant who suffers from a genetic or congenital disorder is denominated one for "wrongful life." The essence of the child's claim is that the medical professional's breach of the applicable standard of care precluded an informed parental decision to avoid his conception or birth. But for this negligence, the child allegedly would not have been born to experience the pain and suffering attributable to his affliction.The overwhelming majority of jurisdictions, including Illinois, have rejected claims for relief brought by or on behalf of genetically or congenitally impaired children against medical professionals whose negligent failure to predict or to diagnose their congenital or genetic disease was allegedly the proximate cause of their birth and having to live in an impaired condition. The systematic rejection of wrongful life claims rests upon two intimately related grounds. The first ground is the courts' unwillingness to hold that a child can recover damages for cheating life.... Resting on the belief that human life, no matter how burdened, is, as a matter of law, always preferable to non-life, the courts have been reluctant to find that the infant has suffered a legally cognizable injury by being born with a congenital or genetic impairment as opposed to not being born at all. In the present case, the indisputable tragic fact is that the boy never had a chance to be born as a whole, functional human being without hemophilia.
It is alleged that if the defendants would have performed their tests properly, then an abortion would have been procured. However, in such an event, the boy never would have come into existence. The only alternative to the boy's suffering is nonexistence. Recognition of a cause of action for wrongful life in this case would therefore require this Court to find that the boy had an interest in avoiding his own birth, in other words, that there is a fundamental legal right not to be born when birth would necessarily entail a life of hardship. Such a finding, however, would essentially require us to possess the divine ability to determine what defects should prevent an embryo being allowed life so that denial of the opportunity to terminate the existence of such a defective child and embryo supports a cause of action. Whether it is better never to have been born at all than to have been born even with gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind have placed on human life rather than its absence. Upon what legal foundation is the court to determine that it is better not to have been born than to be born with deformities? If the court permitted this type of cause of action, then what criteria would be used to determine the degree of deformity necessary to state a claim for relief? We decline to pronounce judgment in the imponderable area of nonexistence.
It cannot escape our judicial notice that many diseased and deformed persons live contented lives and make significant social and personal contributions. Were we to recognize a child's claim that it was injured by being denied nonexistence, we would be required to speculate that this child, unlike other similarly situated persons, would be unable to derive any significant meaning, pleasure or satisfaction from its life, and therefore that its life is of such minimal benefit as to constitute an injury. Because we have no way of knowing what opportunities will be available to this child or how the child will respond to life in general, we cannot say how the child's pain and suffering will compare to the benefits of its life, and thus we cannot determine that its life constitutes an injury.
Because no right not to be born, even into a life of hardship, has ever been recognized in our judicial system, the boy has suffered no legally cognizable injury by being brought into existence afflicted with hemophilia. The boy nevertheless urges us to follow the Supreme Courts of California, New Jersey, and Washington, which have permitted children to pursue wrongful life actions limited to the recovery of special damages attributable to the extraordinary medical expenses expected to be incurred during the child's lifetime. We are not persuaded, however, by the reasoning of these Courts.
The General Assembly of the State of Illinois has declared that the long-standing policy of this state to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified, or the United States Constitution is amended to allow protection of the unborn, then the former policy of this state to prohibit abortions unless necessary for the preservation of a mother's life shall be reinstated. To recognize that the boy has a fundamental right not to be born would thus undermine this legislatively expressed policy favoring childbirth over abortion.
Basic to our culture is the precept that life is precious. As a society, therefore, our laws have as their driving force the purpose of protecting, preserving and improving the quality of human existence. To recognize wrongful life as a tort would do violence to that purpose and is completely contradictory to the belief that life is precious. The fact that [the boy] will live in a severely disabled condition is unquestionably a tragedy; nevertheless, we agree that life—whether experienced with or without a major physical handicap—is more precious than non-life. Thus, because [the boy] has suffered no legally cognizable wrong by being born, he has no cause of action.
No man is perfect. Each of us suffers from ailments or defects, whether major or minor, which make impossible participation in all the activities the world has to offer. But our lives are not thereby rendered less precious than those of others whose defects are less pervasive or less severe.... To rule otherwise would require us to disavow the basic assumption upon which our society is based. This we cannot do.
After rejecting wrongful life as a valid legal cause of action, the Illinois Supreme Court, however, then recognized as a valid cause of action wrongful birth [10]:
Judicial acceptance of wrongful birth as a legally cognizable cause of action is premised on a number of recurrent rationales. Many courts have accepted wrongful birth as a cause of action on the theory that it is a logical extension of existing principles of law. Some courts have recognized the cause of action because of the expanding ability of medical technology to accurately detect and predict genetic or other congenital abnormalities before conception or birth. Imposing liability on individual physicians or other health care providers, these courts say, vindicates the societal interest in reducing and preventing the incidence of such defects. Other courts have expressed concern that refusing to recognize this cause of action would frustrate the fundamental policies of tort law: to compensate the victim, to deter negligence, and to encourage due care. A few courts have also stated that refusal to recognize wrongful birth claims would impermissibly burden the constitutional rights involved in conception, procreation, and other familial decisions. Great weight of authority forces us to agree with the majority of the courts and the legal commentators and to hold that an action for wrongful birth of a genetically or congenitally defective child may be maintained by the parents of such child. The damages most courts have allowed are the extraordinary expenses that are attendant to the care and treatment of the afflicted child, and do not include the expenses associated with the raising of a normal, healthy child. We align ourselves with the majority of jurisdictions which have limited the parents' recovery of damages to the extraordinary expenses—medical, hospital, institutional, educational, and otherwise—which are necessary to properly manage and treat the congenital or genetic disorder. We emphasize that the plaintiffs here seek to recover only those extraordinary expenses that will be incurred prior to the child reaching his majority.
In a case similar to the one presented at the beginning of this article, the Supreme Court of Alabama also affirmed the validity of a parents' lawsuit for wrongful birth. In that case, a physician who performed sonographic examination during the mother's pregnancy was accused of failing to discover hydrocephaly and a meningocele in the fetus. The child was later born with multiple congenital anomalies, underwent numerous surgical procedures, and died at the age of 6 years. The parents claimed that had the physician interpreted the sonogram correctly, they would have terminated the pregnancy. On the basis of reasoning similar to that expressed by the Illinois Supreme Court, the Supreme Court of Alabama affirmed the right of the parents to sue the sonologist for wrongful birth [11].
Although an increasing number of state courts have recognized wrongful birth as a valid legal cause of action, according to one legal commentator antiabortion activists opposing the recognition of wrongful birth lawsuits have lobbied various state legislatures to pass statutes banning this cause of action [12]. Currently, 28 states recognize wrongful birth, and nine prohibit it as a cause of action: Georgia, Michigan, Minnesota, Missouri, North Carolina, Ohio, Pennsylvania, South Dakota, and Utah ("Medical Malpractice?" 60 Minutes, CBS telecast June 22, 2003, unpublished data).
Whether state legislation barring wrongful life or wrongful birth lawsuits is constitutional was the subject of a lawsuit filed in Pennsylvania. A young boy born with fetal abnormalities sued a radiology group for failing to diagnose and apprise the boy's parents of fetal abnormalities revealed on sonography obtained during the mother's pregnancy. The parents claimed that had they been correctly informed of the sonographic findings, they would have sought an abortion. Previously, the Pennsylvania legislature had passed a statutory prohibition against causes of action claiming that a person should not have been born that stated, in part [13]:
There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born...or should have been aborted.
Because the state law prohibited such lawsuits, a trial court judge dismissed the child's lawsuit. On appeal, the plaintiff claimed that the state law was unconstitutional in that it would interfere with a woman's right of abortion by allowing a physician to either intentionally misrepresent or negligently fail to impart information to the woman, thereby impacting such a decision, contrary to the United States Supreme Court ruling in Roe v Wade. A Pennsylvania appellate court rejected the plaintiff's lawsuit and upheld the state prohibition on wrongful birth and wrongful life lawsuits [13]:
Although the provisions of [the state law] clearly relieve physicians from liability for negligently failing to provide women with information affecting abortion decisions, we would be engaging in speculation were we to assume that this extinguishment of liability encourages such improper behavior. We must presume that the law does not encourage physicians to engage in the negligent conduct at issue. The law does not encourage either intentional misrepresentations or the negligent impartation of information relating to abortion rights.The [intent of the law] is to stop a court-engendered policy which views the birth of a child, be that child handicapped or otherwise, as a damaging event for which someone should be punished in order to prevent this quality of life ethic from becoming so pervasive that a handicapped child is routinely considered better off dead and of less value than what we would call a "normal child," and to prevent the practice of medicine, especially obstetrics and gynecology, from becoming coerced into accepting eugenic abortion as a condition for avoiding what are particularly wrongful birth lawsuits.... The legislature believed that it would be improper to view any birth as an evil or wrong, and thus a cause of action. Secondly, our society has become increasingly aware and protective of the rights of the handicapped. To recognize the validity of a wrongful life statute would be to make the handicapped a lower class of citizen.
Informed Consent and Parents' Right to Know
The current era, in which it has become universally recognized that
patients have the right of self-determination with regard to medical diagnoses
and treatment, was ushered in nearly 90 years ago by Justice Benjamin Cardozo
when he stated, "Any human being of adult years and sound mind has a
right to determine what shall be done with his own body"
[14]. Eighty-four years later
the Hawaii Supreme Court elucidated this concept
[15]:
The decision as to what procedure to undergo is ultimately the patient's. Since the patients must suffer the consequences, and since they bear all of the expenses...fundamental fairness requires that the patient be allowed to know the alternatives.... The physician's duty to disclose...should be on what a reasonable person objectively needs to hear from his or her physician to allow the patient to make an informed and intelligent decision regarding proposed medical treatment.
As has already been pointed out, in wrongful life and wrongful birth cases the injury is not that the child is born with congenital anomalies or disease. Rather, the injury is the preemption of expectant parents from exercising their right to decide whether they should bear a particular child [8]. To establish proximate cause in such litigation, the child's parents are required to plead and prove that had they known of the correct genetic test or sonographic results in timely fashion, they would have terminated the pregnancy [16].
Claiming the injury of wrongful life or wrongful birth is in essence a claim against a physician for failing to obtain informed consent from a patient. The close relationship between wrongful life and wrongful birth claims and informed consent allegations was highlighted in a lawsuit recently decided by the New Jersey Supreme Court. The case involved a boy born with congenital anomalies involving his extremities who, with his parents, sued an obstetrician for allegedly failing to inform the parents that a progestational drug taken by the mother during her pregnancy could cause fetal abnormalities. The lawsuit was dismissed by the trial court and was eventually appealed to the New Jersey Supreme Court, which reinstated the litigation [17]:
In informed consent cases, proximate cause requires the plaintiff to prove that a reasonably prudent patient in the plaintiff's position would have declined to undergo the treatment if apprised of the risks that the defendant negligently failed to disclose.In sum, the informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff's position would deem material to her decision. What is or is not a medically accepted risk is informed by what the physician knows or ought to know of the patient's history and condition.... In a wrongful birth case, a plaintiff need not prove that the doctor's negligence was the medical cause of her child's birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor's negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy. The emotional distress and economic loss resulting from this lost opportunity to decide for herself whether or not to terminate the pregnancy constitute plaintiff's damages.
The duty of disclosure in a wrongful birth case is grounded in the right of self-determination. The doctor's duty is to communicate to the patient enough material information to allow her to make an informed choice concerning the continuation of pregnancy.
Today, most courts recognize the distinction between causing a birth defect and causing the parents to lose the option to terminate the pregnancy, and the latter causation standard is widely accepted in jurisdictions recognizing wrongful birth actions. Therefore, the determination to be made is whether the doctors' inadequate disclosure deprived the parents of their deeply personal right to decide for themselves whether to give birth to the child who could possibly be afflicted with a physical abnormality. The plaintiffs must show that the resulting birth defect was reasonably foreseeable, and that had defendants not been negligent, the pregnancy would have been terminated.
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With increasing frequency, courts today are recognizing that medical choices should lie with the patient rather than with the physician or other medical providers, and are acknowledging that life under certain circumstances is not always desirable. Indeed, perhaps influenced by the development of modern technology that detects genetic and fetal abnormalities, most courts have reached the conclusion that some lives are not worth living. Thus, if a physician fails to disclose sonographic or other genetic test findings material to a couple's decision as to whether to continue or terminate a pregnancy, the physician may have breached a duty owed both to the couple and to the prospective child. If the pregnancy ends with the child being afflicted with congenital anomalies, the child, or the parents, or both, may well have a valid basis on which to file a malpractice lawsuit against the physician.
What is the lesson that radiologists and sonologists should learn from this discussion? I believe the answer lies in an editorial written 3 years ago by University of California San Francisco radiologist Roy Filly [18]. Although the editorial dealt with communication to patients of potential sonographic findings of Down syndrome, it is germane to this article. Filly pointed out that often sonograms contain "abnormalities" such as choroid plexus cysts, echogenic intracardiac foci, mild pyelectasis, or echogenic bowel that may not be real abnormalities. According to Filly, the Down syndrome markers of echogenic intracardiac foci occur in close to 10% of normal fetuses, choroid plexus cysts in 1–2%, echogenic bowel in more than 10%, and mild pyelectasis in 3%. Filly then asks rhetorically what the radiologist or other physician performing a routine sonogram who finds one of these markers of disease should tell the mother-to-be. This is his response [18]:
If you have a busy sonographic practice seeing 10 to 20 pregnant women daily, you will likely see at least one of these "abnormalities" every day. Physicians in the trenches...identify these "abnormalities" during a routine sonogram. What are they to tell the patient? [Once the parents are informed of this "abnormality,"] enjoyment of the anticipation of the birth of their son or daughter is now replaced by anxiety.From my vantage point, the identification of these "abnormalities" in low-risk women has crossed the line of "more harm than good."... Think about it! For the tiny residual number of Down syndrome fetuses that may potentially come to light by chasing down every last "marker," we intend to put at least 10% of all pregnant women with perfectly normal fetuses through a great deal of worry.
So then what should I do tomorrow? Should I have the courage of my conviction to simply ignore these features? I wish I had that courage, but I don't. Even with my considerable clout in the world of obstetrical sonography, I cannot unilaterally ignore the sonographic medical literature. That is not how American medicine works.
Nor is that how the American legal system works.
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