Legal Eagle Eye Newsletter for the Nursing Profession(4)15 Dec 96
Quick Summary: Failing to offer a pregnant woman a maternal serum alpha fetoprotein screening by the second trimester is grounds for a wrongful birth lawsuit, if such failure deprived the parents of an opportunity to learn that the fetus had Down’s Syndrome and consequently deprived the mother of the opportunity to exercise an informed choice whether to carry her fetus to term.
The term "wrongful birth" is used to describe a lawsuit filed against a physician or other healthcare professional by the parent or parents of a child born with severe birth defects.
In a wrongful birth lawsuit, the court can award the parents compensation for the added medical expenses for the birth and added expenses to the parents for raising a disabled child, beyond the ordinary costs associated with an uneventful pregnancy, childbirth and the raising of a child who is not disabled. The parents can also recover payment for their emotional trauma.
COURT OF APPEALS OF MICHIGAN, 1996.The Court of Appeals of Michigan acknowledged in a recent published opinion that a maternal serum alpha fetoprotein screening afforded to a pregnant woman as part of her prenatal care carries only a twenty-five to thirty percent probability of identifying the fetus as positive for Down’s Syndrome. However, the court ruled that this probability represents a "substantial opportunity" for the parents to discover the condition of the fetus, such that the parents should be permitted to sue if they are denied this opportunity to discover the condition of the fetus and to make an informed decision regarding the outcome of the pregnancy.
According to the court, other U.S. states along with Michigan have almost uniformly recognized "wrongful birth" as valid grounds for a lawsuit against healthcare professionals whose negligence deprives a parent or parents of the opportunity to make their own informed decision as parents at an early stage of pregnancy whether a fetus with serious congenital defects should be carried to term.
The court recognized that healthcare professionals are entitled to their own personal beliefs on this issue and may strongly disagree with its ruling in this case. However, according to the court, in the United States, following the U.S. Supreme Court’s decision in Roe vs. Wade (1973), the moral, religious and public policy arguments have now been resolved in favor of the parents having a constitutional right to privacy in making their own decisions on the issue of abortion. As long as abortion is an option the law affords to parents, the law will require healthcare professionals to give parents the opportunity to make their own informed decisions whether to exercise that option.
Blair vs. Hutzel Hospital, 552 N.W. 2d 507 (Mich. App., 1996).