Tuesday, December 3, 1991
'WRONGFUL BIRTH' SUIT STIRS DEBATE ON PRENATAL TESTS
By TONY RIZZO, Staff Writer
Karen and Alan Thomas learned their third child would be disabled two weeks before she was born in November 1989.
Now the Olathe couple say they never got the chance to choose between an abortion and the financial and emotional hardship of raising Carmen, who was born with no arms and short, disjointed legs.
In a lawsuit filed Nov. 8, her parents turned to Johnson County District Court for help.
With the so-called wrongful-birth suit, the Thomases joined a nationwide legal, medical and ethical debate. The conflict is an outgrowth of continuing medical advances and the U.S. Supreme Court's Roe vs. Wade decision in 1973 giving women the right to seek abortions.
Such lawsuits raise disturbing questions. Should our courts hold physicians responsible for medical problems they did not cause? Are some disabilities so terrible that a child would be better off not being born?
The Thomases' lawsuit, thought to be the second of its kind in Kansas, contends that a doctor at Kansas City Women's Clinic Inc. failed to diagnose Carmen's condition, robbing them of their right to consider an abortion.
The Thomases do not claim that doctors caused Carmen's condition - only that the doctors did not find problems before Carmen's birth and tell her parents that something was wrong.
Had they known of Carmen's condition before she was born, the parents said in the lawsuit, they would have sought an abortion and avoided the "extraordinary" costs of caring for her. The Thomases have been told lifetime care for Carmen, now 2, will cost $3 million, in part for special prosthetic limbs.
The Thomases declined to be interviewed for this article.
Technology now allows doctors to detect hundreds of conditions before birth, said Dr. John Yeast, director of the perinatal center at St. Luke's Hospital. But doctors do not always have a good reason, such as family history, to look for problems, he said.
"It's a worrisome thing," Yeast said. "Does a doctor have a duty to exclude every potential anomaly that's diagnosable?"
Physicians who fail to properly use today's technology to test for abnormalities - or who fail to tell parents that such tests are available - deprive those parents of their right to choose an abortion, some lawyers contend.
"They should be given the opportunity to have an abortion or prepare themselves for the birth of an impaired child," said John Parisi, an Overland Park lawyer whose firm represents the Thomases.
Wrongful birth lawsuits also raise troubling ethical questions for society.
With each leap in medical technology, the number of physical disabilities that can be discovered before birth grows. And such advances will increase, experts say.
"We haven't even seen the tip of the iceberg," said Myra Christopher, executive director of Midwest Bioethics Center in Kansas City.
But performing every possible test to detect such health problems will be close to impossible, she said.
"The costs would be so exorbitant that it would bankrupt the country."
Beyond such issues are the ethical considerations parents must face in deciding between an impaired life or no life at all, Christopher said.
Many people could agree that some disabilities are so terrible that a child would be better off not being born, she said.
"But where is the line drawn? And who draws it?"
Arthur Caplan, director of the Center for Biomedical Ethics at the University of Minnesota, said wrongful-birth lawsuits could be seen as pitting parents against their children.
"A parent is saying that 'my child is so impaired I demand compensation,' " Caplan said. "At the same time they are telling the child that they are loved and wanted."
Telling a child it would have been aborted if the parents had known about a disability is "fraught with danger for the children and their families," he said. "I worry about the impact on the kids."
Before Roe vs. Wade legalized abortion, state courts barred wrongful-birth lawsuits.
The first such case in the United States was addressed by the New Jersey Supreme Court in 1967. Abortion was illegal except to save a mother's life, and the high court upheld a lower court ruling dismissing the lawsuit.
But in 1979, six years after Roe vs. Wade, the New Jersey court faced the issue again. Justices reversed the 1967 decision and gave a couple, whose child was born with Down's syndrome, the right to collect damages.
In the decade since, courts in about 20 states, including Kansas, have said parents can sue on the grounds of wrongful birth. A few states, including Missouri, have prohibited such lawsuits. The Missouri Supreme Court later ruled that parents could seek some damages, on very limited grounds.
Although courts have allowed people to seek such damages, Caplan said it was a concept that judges and juries have had a hard time accepting.
"It's a pretty dubious claim," he said. "If I'm a judge or on a jury, I'm going to think it's still better to be here than not."
The Kansas Supreme Court addressed the issues for the first time last year when a federal judge asked the court to establish the types of damages, if any, that could be recovered.
That lawsuit was filed by John and Nicole Arche, whose daughter, Andrea, was born mentally retarded on April 6, 1987, at Irwin Army Hospital at Fort Riley, Kan. The Arches sued the U.S. government in federal court because Army doctors monitored the pregnancy and birth.
Her parents contended that doctors failed to administer a prenatal test that could have detected Andrea's condition. Because of that negligence, the Arches said, they were denied the right to an abortion.
In its ruling, the Kansas Supreme Court gave parents the right to sue for wrongful birth, but it limited the types of damages that could be collected to only the extra cost of a child's care that result from its disability.
And such damages could be collected for only as long as the child lived or until reaching the age of 18, whichever came first. The court said parents could not collect money for their own pain and suffering. The Arches' lawsuit is pending.
Unlike Kansas, most states recognize that parents have a legal obligation to care for severely disabled children after they become adults.
The Missouri Supreme Court has taken a different approach to wrongful-birth lawsuits. A 1986 Missouri law bars people from seeking damages to pay for the care of disabled children in claims such as those filed by the Thomases and Arches.
The Missouri court in 1989 ruled that parents could collect damages for their own emotional pain and suffering, the opposite of the Kansas Supreme Court's ruling. Even with the permission to seek wrongful-birth damages, plaintiffs in such cases must prove the same elements they would have to prove in any medical malpractice lawsuit.
They must show that the doctor or other medical practitioners deviated from established medical standards.
Caplan said those standards constantly are changing because of advances in technology.
Even if women are told about prenatal tests, other factors may prevent them from receiving them.
But as Roe vs. Wade cleared the way for such legal action, many people think that a conservative U.S. Supreme Court could overturn the 1973 ruling and remove one of the legal supports for wrongful birth lawsuits.
"The whole thing hinges on Roe vs. Wade," Christopher said. "What point is there in doing the tests if abortion is not an option?"
THE KANSAS CITY STAR
Section: NATIONAL/WORLD
Page: A1
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