Florida “wrongful births” leave health care providers liable
According to Institute of Medicine statistics, approximately 98,000 Americans die each year as a result of medical errors that could have been prevented. This is an example of ‘wrongful death,’ a term recognizable to many. However, the term ‘wrongful birth’ may not provide the same familiarity, but is causing just as much commotion in the legal arena.
In 2007, the Tampa Tribune provided details of such a case involving a University of South Florida doctor. This doctor told Daniel and Amara Estrada to go ahead with a second pregnancy, despite the fact that their first child had significant birth defects. However, the doctor did not provide all of the facts needed by the Estrada’s to make a decision about having a second child.
If this doctor properly diagnosed the first child with Smith-Lemli-Opitz syndrome (a syndrome with which the doctor was familiar), the Estrada’s would have known that a 25% chance existed that their second child would have this same genetic disorder, and a test could have been done during the pregnancy to find out for sure. Had they known that their second child had Smith-Lemli-Optiz syndrome, the Estrada’s would have terminated the pregnancy.
According to the Tampa Tribune, the “jury determined the Estradas deserve $23.5 million for lifetime care of their second child, born with the same genetic disorder as their first. The award includes payment for the pain and suffering caused by the doctor’s misdiagnosis.”
A similar case just resolved in September in Palm Beach County. In this incident, a boy was born without arms and with only one leg, but his parents had no prior knowledge that this would occur, despite regular prenatal care and sonograms.
According to Miami Injury Lawyer Blawg, the jury found that the doctor and ultrasound technician involved with this pregnancy fell below the standard of care by negligently administering a sonogram. Had they not been negligent, they would have discovered the abnormalities. If the parents were made aware of these abnormalities, they would have terminated the pregnancy. The parents were awarded $4.5 million to help them buy prostheses, wheelchairs and other medical services needed to aid in their child’s care.
Both of these lawsuits deal with a controversial matter: the right of a parent to sue on behalf of children with disabilities, claiming that they wouldn’t have had the child had they known the extent of the child’s disability. Florida is one of approximately 25 states that allow for these ‘wrongful birth’ suits, which present sensitive issues for jurors.
Health care providers in Florida need to be aware of the protections provided for parents in similar cases and strive to go above and beyond the standard of care. To learn more about how to protect yourself in these matters, visit http://www.thehealthlawfirm.com/.
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law