In a wrongful birth suit, an Oregon couple has been awarded nearly $3 million to care for their daughter, after successfully arguing in court that they would have aborted her had they known before her birth that she had Down syndrome.

Jurors found Portland-based Legacy Health negligent for failing to spot four-year-old Kalanit Levy’s chromosomal abnormality before her birth, and blamed a failure of communication between doctors and lab workers, in part, for the missed diagnosis despite several red flags raised by ultrasounds.

Parents Deborah and Ariel Levy were awarded $2.9 million based on estimates of the extra costs they will incur in caring for their daughter over her lifetime because of her medical condition. They originally sought $14 million.

Cases of Wrongful Birth

Theirs is just the latest in a series of “wrongful birth” jury awards across the country, as prenatal screening methods improve. The number of genetic tests available in the U.S. has more than tripled in the past decade, allowing potential parents to choose abortion over delivering babies with health abnormalities. As many as 90 percent of women with a prenatal Down syndrome diagnosis choose to have an abortion, according to research published by the national Institute of Health, as do 60 percent to 90 percent of women with other prenatal genetic abnormalities.

People with Down syndrome typically have below-average intelligence and are more likely to experience respiratory and other health problems than the general population. They typically can be expected to live into their 40 or 50s. Other conditions that can be detected in utero pose even greater challenges.

In 2005, Ohio’s Supreme Court upheld a couple’s right to sue their obstetricians for failing to catch trisomy 22, a genetic defect. In 2011, a Florida couple won $4.5 million to care for a son born with one leg and no arms after arguing the missing limbs should have been caught by ultrasounds.

The Burden of Medical Expenses

When potential parents don’t have accurate medical information, the surprise of a genetic or other health condition on delivery day is just the first of many shocks. Caring for these children can be prohibitively expensive. Even though parents inevitably grow to love babies they might not have chosen to carry to term, they can’t always afford to care for them, said attorney Robert J. Talaska, an expert in medical malpractice, birth injuries, and wrongful birth.

“The issue is not ‘I would have rather seen this child dead than alive,’” Talaska said. “The issue is, there are medical expenses.”

Fighting Liability for Medical Negligence

To avoid being liable for negligence, doctors and health care providers need to explain prenatal medical diagnoses clearly and to outline risks and options to their patients, Talaska said. Sometimes a health problem is obvious, other times it’s unclear if a fetus is abnormal or the risk of problems is relatively small. Regardless, “Doctors need to be objective and not to inject their own values system into it, to just provide information objectively,” he said.

Arguing and Winning Cases of Wrongful Birth

To win a wrongful birth case, parents must successfully argue that they would have terminated the pregnancy had they been fully informed. If they are regular donors to anti-abortion groups, for example, they’ll have a hard time in court.

They should also be able to argue that they face steep medical expenses because of their child’s health condition. Parents may want to sue to make a point if a genetic condition causes a baby to die soon after birth, but because jury awards are generally made to cover the cost of caring for an ill child, few attorneys will take a wrongful birth case where there are no such expenses, Talaska said. An experienced attorney can evaluate your case and help you decide if you have grounds to pursue a wrongful birth lawsuit.

Considering Matters of Abortion

Seating a jury can be a challenge in these lawsuits because emotions run high when abortion is at issue. When litigating in Texas, for example, Talaska said 100 people from an initial jury pool of 275 were eliminated immediately because of strong anti-abortion views.

The fear that wrongful birth awards are tantamount to an official endorsement of abortion has spurred about a third of states to prohibit these lawsuits, and others limit monetary awards to payments for medical costs without allowing higher punitive payouts.

Abortion opponents have also been vocal in their criticisms of parents like Deborah and Ariel Levy, who have reportedly received death threats as a result of their suit against Legacy Health. Dozens of blogs and online articles decry their legal efforts.

Although they would not have chosen to carry their daughter to term if they had been fully informed of her medical condition, the Levys now love four-year-old Kalanit, they testified in court. But they’re deeply worried about providing speech therapy and meeting all her medical needs in the coming decades, their attorney told The Oregonian.

By: Courtney Sherwood

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