FL Wrongful Birth Medical Malpractice Case Yields $4.5 Award; Repercussions in New York?

John Fisher
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Stopping Medical Injustice
Parents brought a wrongful birth medical malpractice lawsuit against an OB-GYN in Florida and just received a $4.5 million award from a Florida jury. The parents successfully alleged that the OB-GYN failed to diagnose their son, who is now approaching three years old and was born with no arms and only one leg. They claimed that if they the OB-GYN competently conducted a thorough sonogram, this would have been apparent and the parents would have aborted the son to prevent his suffering. Essentially, their claim is that the ultrasound technician failed to properly examine the mother during the pregnancy and detect the three missing limbs that the baby had. Making matters worse, the OB-GYN and ultrasound technician confirmed in an examination report that they did indeed see all four limbs.

A wrongful birth is a legal cause of action where the parents of a diseased or severely handicapped child claim that the medical team failed to properly warn them of the risk of conceiving or giving birth to such child. This cause of action is hotly contested, and many religious and political groups alike condemn this practice. However, it is certainly a viable action today in some states-and some countries-as it was here in Florida.

Yesterday I wrote about the weaknesses of OB-GYN guidelines and how only thirty-percent is proven with "gold-standard" medical evidence and controlled trials. Immediately today we see a follow up to the concerns I expressed yesterday. Coupled with another blog post from last week, the concerns of medical malpractice and OB-GYNs should be coming clearer.

The $4.5 million in damages awarded to the patents will go towards the costs of caring for the child, particularly for the prosthetics, wheel chair, and extensive medical and therapeutical care the child will need to cope with such birth defects.

The reason why such wrongful birth actions work is because it is negligent in the physicians who should have given the parents a proper diagnosis to meet the acceptable standard of medical care. Therefore, the parents were without the ability to make a truly informed decisions about whether or not to have the child which such significant defects. While Florida is just one of the twenty-five states permitting such an action, New York has been hesitant to allow such an action, but the Court of Appeals (New York's highest court), has allowed it in Mickens v. Lasala, 8 A.D.3d 453 (App. Div. 2d Dep't 2004).

Whether or not you agree with the outcome, should such an action exist? Is this just arming the abortion debate with empirical data on economics and quality of life for the child and parents, justifying an abortion? What do you think? Shouldn't there be more established guidelines? I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.
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