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Wrongful Birth


ATL Bear
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Now here's a twist on the abortion debate.

I should probably recuse myself from the debate since my younger brother is Down's, but I can't help but find sick irony in the following quotes from the article:

“These are parents who love this little girl very, very much,”

Ariel and

Deborah Levy won their "wrongful birth" suit against Legacy Health System, arguing they chose to continue their pregnancy based on what doctors told them, according to ABC News, and would have terminated it if they had not been assured their baby did not have the genetic condition.

http://www.nydailyne...9#ixzz1p0Z27CeH

A Portland, Ore. couple was awarded $2.9 million on Friday for the care of their Down syndrome baby, who they argue would not have been born if doctors had not been "negligent” in their pre-natal care.

Ariel and

Deborah Levy won their "wrongful birth" suit against Legacy Health System, arguing they chose to continue their pregnancy based on what doctors told them, according to ABC News, and would have terminated it if they had not been assured their baby did not have the genetic condition.

Jurors found five instances of Legacy Health's negligence, including a doctor's finding that the baby had a normal chromosomal profile based on a test that was performed and analyzed incorrectly.

Thirteen weeks into Deborah Levy's pregnancy,

according to The Oregonian, her doctor tested a sample of tissue and concluded the baby did not have any chromosomal problems. Even though later tests suggested it might have Down syndrome, doctors assured the family that nothing was wrong.

A week after the baby was born, the Levys discovered their baby did in fact have Down syndrome. The doctor had taken a sample of the wrong kind of tissue, according to the lawsuit - a mistake that was never caught.

They also argued the doctors were "negligent in their performance, analysis and reporting" of their daughter's test results after she was born.

The child is now four years old.

"It's been difficult for them," the family's lawyer

David K. Miller told KATU-TV. "There's been a lot of misinformation out there.

“These are parents who love this little girl very, very much,” Miller said. “Their mission since the beginning was to provide for her and that’s what this is all about.”

The Levy family originally sued for $7 million to cover the costs of care for their daughter over her lifetime.

While the parents chose not to comment after the verdict, the health care company hit back at the decision in a statement.

“While Legacy Health has great respect for the judicial process, we are disappointed in today’s verdict," the

statement read. "The legal team from Legacy Health will be reviewing the record and considering available options."

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"Had we known she had Down's syndrome, we would have killed this child, who we love very much. You should pay us for having to take care of her. Because we love her. And because we lost the opportunity to kill her because y'all were negligent. And stuff."

Pathetic.

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I have a friend who had a surgical operation performed on his spine. The surgeon apparently did something wrong with his spine, accidentally, and now my friend has to walk with a cane and has pains. This friend knew the doctor had made an honest mistake, and chose not to sue or seek damages of any kind.

Sounds to me like the doctor who took a sample of the "wrong kind" of tissue, just made an honest mistake. These doctors are not God, they are not responsible for the baby's illness. Why should they have to pay this family?

The fact that these liberal scum admit they would have committed murder, had the doctors given them accurate information on their baby's health, automatically nullifies any case they would have had to begin with, in my opinion. I certainly don't understand who they think they are, demanding someone pay them for conceiving a child and actually having to take care of it. I can only imagine how I would feel if my parents said they would have murdered me if they knew I would have been born with a disease.

Good thing my parents aren't liberal scum cowards.

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FWIW, There is no cause of action for "Wrongful Birth" in Georgia . . . at least last I checked.

Say what you will about these folks, but do some research on the percentage of prospective parents who perform "amnio's" during the early stages of pregnancy.

There's only one reason to do that.

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"Had we known she had Down's syndrome, we would have killed this child, who we love very much. You should pay us for having to take care of her. Because we love her. And because we lost the opportunity to kill her because y'all were negligent. And stuff."

Pathetic.

This is the first time I have ever read one of your posts and thought you were purposely misrepresenting the actual issue in favor of your personal views.

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This is the first time I have ever read one of your posts and thought you were purposely misrepresenting the actual issue in favor of your personal views.

I'm not misrepresenting anything. I AM pointing out the utter absurdity of their position by being sarcastic, but they are in fact claiming both 1) they love their child, and 2) they want money because they missed out on the opportunity to kill her.

That's the facts. If you want to demonstrate how I've misrepresented something, I'm all ears.

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FWIW, There is no cause of action for "Wrongful Birth" in Georgia . . . at least last I checked.

Say what you will about these folks, but do some research on the percentage of prospective parents who perform "amnio's" during the early stages of pregnancy.

There's only one reason to do that.

Here's what I'll say -- there may be only one reason to do that (which is why we always refused such testing, for what it's worth). That does not in any way change the absurdity of their claim. It takes a great deal of hubris to ask a doctor to pay for his negligence when your damages are that you were given a live baby instead of a dead baby.

I fully understand that's the most horrific way to phrase it. I phrase it that way in the hopes that you will understand that is EXACTLY what we are talking about.

Are Down's syndrome babies really so awful? Is that who we are as a society now?

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My hope is that you are creating a false dichotomy.

There is a cost for the care of a special needs child, ESPECIALLY a loved and well cared for special needs child.

Personally, I would love to buy a used Boxster S, but that is not something that we can responsibly afford right now. Foregive me for making the unforegiveable comparison, but I'm trying to find an explanation.

Perhaps it makes it all the more callous, but the better analogy is that I have a used Boxster S checked out before I buy it. I pay for an inspection and the mechanic totally misses something He should have caught. I buy the car, have a freakin' BLAST driving it, but it's in the shop every month and costs me more in repairs than I can afford.

The reality is that we have given folks the choice of passing on a model that will be unaffordable.

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My hope is that you are creating a false dichotomy.

There is a cost for the care of a special needs child, ESPECIALLY a loved and well cared for special needs child.

Personally, I would love to buy a used Boxster S, but that is not something that we can responsibly afford right now. Foregive me for making the unforegiveable comparison, but I'm trying to find an explanation.

Perhaps it makes it all the more callous, but the better analogy is that I have a used Boxster S checked out before I buy it. I pay for an inspection and the mechanic totally misses something He should have caught. I buy the car, have a freakin' BLAST driving it, but it's in the shop every month and costs me more in repairs than I can afford.

The reality is that we have given folks the choice of passing on a model that will be unaffordable.

I agree the reality is the problem. The great thing about this case is it highlights that in loud, vivid colors.

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I'm not misrepresenting anything. I AM pointing out the utter absurdity of their position by being sarcastic, but they are in fact claiming both 1) they love their child, and 2) they want money because they missed out on the opportunity to kill her.

That's the facts. If you want to demonstrate how I've misrepresented something, I'm all ears.

Let me start off saying that I didn't mean to offend you when I wrote that and I might have used the wrong words. I had originally turned off my computer after reading your post but your post stuck in my mind enough for me to get back up, turn the computer back on (at about 2am, I think) and post my thoughts. So I likely used the wrong words, but I still think your post was different from most of your others in a noticeable way.

It seems like as an attorney you should be pretty comfortable arguing either side of a debate to the best extent possible even if the position you are supporting is not the one you hold personally. I imagine that you could do that pretty well. But because of the nature of this particular topic you chose not to consider or address this topic from a legal perspective and instead only focused on your personal views. Those parents have taken a position that is really unpopular and disgusting to a degree but I would bet that from a purely legal standpoint you would agree with their position in this case. The doctor was totally incompetant in performing his duties and it looks like the parents were having the test specifically in order to eliminate any possibility of bringing a child with MR into the world.

While their statements in this case could certainly be considered disturbing and disappointing it seems like they have a strong case when it comes to going after the doctor for botching his job here. To see you choose not to even comment on it from a legal standpoint and instead focus only on the personal side of the subject stood out to me because you usually seem to give less emotional opinions here while also trying to balance your posts by discussing both sides of the debate.

I'm not trying to backpedal or kiss up to you here, only trying to explain why your OP here seemed out of character to me. You seemed unwilling to address the subject from your professional vantage point and only focused on the personal aspects of this case. I would have expected you to say everything you said in your post but with additional thoughts on the case from a legal standpoint and it felt to me like your personal disdain for these folks would not allow you to say things I would have expected you to say.

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^^^

From a legal perspective, an accident does not translate into negligence automatically. The plaintiff must show a deviation from standard of care by the doctor. Simply drawing the wrong tissue does not do that.

That was my point with the story of my friend who had a spine operation. Not only is the case illegitimate morally, but it doesn't seem to make legal sense either. It's just like people who slip on rain at Wal-Mart and then attempt to sue the store for their accident.

Edited by Adema1226
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Let me start off saying that I didn't mean to offend you when I wrote that and I might have used the wrong words. I had originally turned off my computer after reading your post but your post stuck in my mind enough for me to get back up, turn the computer back on (at about 2am, I think) and post my thoughts. So I likely used the wrong words, but I still think your post was different from most of your others in a noticeable way.

It seems like as an attorney you should be pretty comfortable arguing either side of a debate to the best extent possible even if the position you are supporting is not the one you hold personally. I imagine that you could do that pretty well. But because of the nature of this particular topic you chose not to consider or address this topic from a legal perspective and instead only focused on your personal views. Those parents have taken a position that is really unpopular and disgusting to a degree but I would bet that from a purely legal standpoint you would agree with their position in this case. The doctor was totally incompetant in performing his duties and it looks like the parents were having the test specifically in order to eliminate any possibility of bringing a child with MR into the world.

While their statements in this case could certainly be considered disturbing and disappointing it seems like they have a strong case when it comes to going after the doctor for botching his job here. To see you choose not to even comment on it from a legal standpoint and instead focus only on the personal side of the subject stood out to me because you usually seem to give less emotional opinions here while also trying to balance your posts by discussing both sides of the debate.

I'm not trying to backpedal or kiss up to you here, only trying to explain why your OP here seemed out of character to me. You seemed unwilling to address the subject from your professional vantage point and only focused on the personal aspects of this case. I would have expected you to say everything you said in your post but with additional thoughts on the case from a legal standpoint and it felt to me like your personal disdain for these folks would not allow you to say things I would have expected you to say.

Gotcha -- I wasn't looking at it from a legal perspective at all. I was making a moral statement about their claim for damages.

I agree they have "damages" such as they are. Whether there is a deviation from the standard of care is something I'm not qualified to judge -- a doctor would have to do that. But I think it is absolutely, 100% monstrous that anyone would attempt to claim these particular damages as a basis for a money judgment when the claim for damages is based solely on receiving a live baby instead of a dead baby.

Leaving the issue of deviation aside, I see the claim for damages in much the same light as if someone saved my child's life such that instead of getting a life insurance claim, I had to continue to pay for her education, clothing, food, shelter, etc. If I sued someone claiming that as "damages," everyone would say I was an ***hole.

And they'd be right.

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^^^

From a legal perspective, an accident does not translate into negligence automatically. The plaintiff must show a deviation from standard of care by the doctor. Simply drawing the wrong tissue does not do that.

drawing from the wrong tissue is certainly a deviation from the standard of care. if the standard of care is to draw from tissue A, and the doctor draws from tissue B, that's deviation.

Gotcha -- I wasn't looking at it from a legal perspective at all. I was making a moral statement about their claim for damages.

I agree they have "damages" such as they are. Whether there is a deviation from the standard of care is something I'm not qualified to judge -- a doctor would have to do that. But I think it is absolutely, 100% monstrous that anyone would attempt to claim these particular damages as a basis for a money judgment when the claim for damages is based solely on receiving a live baby instead of a dead baby.

Leaving the issue of deviation aside, I see the claim for damages in much the same light as if someone saved my child's life such that instead of getting a life insurance claim, I had to continue to pay for her education, clothing, food, shelter, etc. If I sued someone claiming that as "damages," everyone would say I was an ***hole.

And they'd be right.

the claim for damages is not based solely on receiving a live baby vs a dead baby. and i am not sticking up for the abortionists as i am as pro human life as they come, in every facet from birth to death including capital punishment. certainly their position is horrendous, but i wonder if the four requirements of medical malpractice met?

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drawing from the wrong tissue is certainly a deviation from the standard of care. if the standard of care is to draw from tissue A, and the doctor draws from tissue B, that's deviation.

It's not that simple in either direction. It could be a known risk. It could be within the standard of care to draw tissue B (you assume it's not, but for example, it is a known risk of a cholecystectomy that the surgeon might accidentally clip the common bile duct, so even though that's not what was intended, it's not negligence to do it). Etc.

the claim for damages is not based solely on receiving a live baby vs a dead baby. and i am not sticking up for the abortionists as i am as pro human life as they come, in every facet from birth to death including capital punishment. certainly their position is horrendous, but i wonder if the four requirements of medical malpractice met?

How is it that it's not based solely on receiving a live baby versus a dead baby? Every single item of damages claimed is based on the fact that the child is alive and not dead.

If the child died, there would be no damages for ongoing medical care, attendant care, etc.

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FWIW, There is no cause of action for "Wrongful Birth" in Georgia . . . at least last I checked.

Say what you will about these folks, but do some research on the percentage of prospective parents who perform "amnio's" during the early stages of pregnancy.

There's only one reason to do that.

As of last July when I was studying for the GA bar, there is not, according to Professor Adams.

See my new thread for an interesting new decision by the Alabama Supreme Court.

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drawing from the wrong tissue is certainly a deviation from the standard of care. if the standard of care is to draw from tissue A, and the doctor draws from tissue B, that's deviation.

I asked my wife about this last night. She's a pediatric anesthesiologist. She said basically there isn't really another tissue to draw from. The error likely happened on the lab side, when the fetal cells are separated and grown, then examined. So it was likely a phd that made the error...

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It's not that simple in either direction. It could be a known risk. It could be within the standard of care to draw tissue B (you assume it's not, but for example, it is a known risk of a cholecystectomy that the surgeon might accidentally clip the common bile duct, so even though that's not what was intended, it's not negligence to do it). Etc.

How is it that it's not based solely on receiving a live baby versus a dead baby? Every single item of damages claimed is based on the fact that the child is alive and not dead.

If the child died, there would be no damages for ongoing medical care, attendant care, etc.

as for the cholecystectomy comment, known risks does not preclude negligence, otherwise health care profesisonals would list all possible bad outcomes as risks and avoid negligence. in addition Res ispa loquitor may be all that is needed to prove breach of duty. while i think it's dispicaple what they are doing, i believe they could meet the four elements of medical negligence. the third element is kinda tricky in this situation.

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