Doctor sued for birth of Down Syndrome child
Wrongful Birth Lawsuits Put Doctors in Ethical Dilemma
Somerville, New Jersey, U.S.A. (1999)
The Washington Times, August 4, 1999
Copyright 1999 News World
Communications, Inc.
Reproduced with permission of The Washington Times. No further republication without
copyright owner's permission. Visit The Washington Times website at
http://www.washtimes.com
When Somerville, N.J., obstetrician Dr. James
Delahunty met Deborah Campano in 1993, she was 21 weeks pregnant -- with a problem. There
was a thickening of skin around the neck of her unborn son, a possible sign of Down
syndrome. He says he offered her an amniocentesis. She says he did not. Five years and
$1.85 million later, the doctor was on the losing side of a "wrongful-birth"
lawsuit, one of a growing number of such cases around the country.
"Some women want to kill their children because they are handicapped," said Dr.
Delahunty, founder of the American Association of Pro-Life Obstetricians and
Gynecologists. "If genetic tests give them the wrong results, they blame the doctor.
I was blamed."
A mounting number of obstetrician/gynecologists are being sued by patients who say they
would have had abortions if prenatal tests had detected fetal abnormalities.
"This is directly contrary to our national and state policies promoting the lives and
livelihoods of people with disabilities," said Clark Forsythe, president of
Chicago-based Americans United for Life. "What we're dealing with here is the
promotion of eugenics as a birth policy whereby doctors are sued for not weeding out the
'unfit.' "
Advances in genetic testing mean that OB/GYNs can reveal nearly every feature of the child
--from the color of eyes and hair to deformities. If the parents are unhappy with what's
in the womb, they often choose abortion. Where the lawsuits enter the picture is when
parents say they were not adequately informed about their children's problems.
Twenty-seven states allow wrongful-birth suits, but other states have ruled them invalid,
most recently Michigan and Georgia. The Georgia suit concerned an Atlanta couple who sued
their obstetrician for not conducting certain prenatal tests on their Down syndrome child,
born Sept. 15, 1995. Among those filing briefs in the case was the National Down Syndrome
Congress, which said the parents' claim for damages "presupposes that the life of a
child with Down syndrome is less valuable than no life at all."
Last month, Michigan upheld a 9-year-old ruling that wrongful-birth suits have no ground
in state law. In late June, an appeals court panel warned the logic of wrongful-birth
suits "could quickly slide into applied eugenics and the elimination of supposedly
unfit human lives." But this spring, New Jersey courts ruled differently. In March, a
state superior court in Somerville, N.J., awarded plaintiffs Mrs. Campano -- a systems
analyst at AT&T -- and her ex-husband, Michael Imbergamo, $1.85 million because they
bore a son with Down syndrome. They divorced after the birth of Michael, who is now 4 and
otherwise healthy. The couple says Dr. Delahunty put his pro-life views before his
patient's well-being. They also claim he denied them a test that would have proven the
fetus had Down syndrome, a genetic defect that stunts a child's intellectual development,
leaving most with the IQ of an 8-year-old.
Dr. Delahunty insisted he offered Mrs. Campano the amniocentesis. "But when she asked
me how much one cost, and I told her $1,700, she said she didn't want one," he said.
"Besides, she was already 21 weeks pregnant and amniocentesis is rarely done after
the 22nd week" for fear of the fetus being permanently damaged. It was his word
against the plaintiffs' word. Dr. Delahunty concedes he "got angry" at plaintiff
lawyer Vivian Demas for making it "a pro-life/pro-abortion case" by casting him
as too pro-life to make an impartial decision. His outrage at the spectacle
"didn't win the jury's hearts," he said.
The New Jersey decision is unusual in that juries are often unsympathetic to plaintiffs
who claim they would have aborted the handicapped child. Although Mrs. Campano sobbed she
loved her "beautiful little boy," she testified she would have aborted him if
she knew he was disabled. The jury found Dr. Delahunty negligent for "failing to
recognize, appreciate and discuss the results of tests, particularly ultrasound."
Miss Demas said the doctor's apparent memory lapses concerning treatment offered made"own worst witness in this
case." "We are pleased the jury agreed that people have the right to information
to make decisions as they see fit," she said. As for the ethics of the matter,
"The moral issues are best made by people who have to live with the
consequences," she added. Elizabeth Volz, president of the New Jersey chapter of the
National Organization of Women, approved of the verdict. "In physicians' private
lives they may feel strongly one way or another on abortion and amniocentesis," she
said.
"But when
dealing with a patient, they should be open and honest with the information they
have."
Defense attorney Tom Chamsky disagrees. "Patients who had disabled children in the
past didn't think of suing the doctor. . . . But as technology has grown, some women think
that their child's disability is someone else's fault," he says. Mr. Chamsky said the
wrongful-birth field is "wide open" for aggressive lawyers "who see a new
area of malpractice not yet explored." Such lawyers may also gravitate toward another
class of suits, called "wrongful life." These are filed on behalf of sick
children, claiming --like Job in the Old Testament narrative -- they would have been
better off never having been born. This gives courts the unenviable task of first
determining the value of a person's life, then calculating the damages that should be paid
for having allowed that person to exist.
Although Dr. Delahunty's
insurance company will pay the $1.85 million while it appeals the case, he says he is
"fed up." "For 40 years, I had a good rapport with my patients," he
said. "But now I look at a woman and see a potential lawsuit." He left private
practice three years ago and works as a hospital consultant, assisting pregnant women with
HIV. He plans to recommend to the American College of Obstetricians and Gynecologists that
all prenatal diagnoses be assigned to hospitals' genetics departments rather than to
OB/GYNs. This might keep other OB/GYNs from being sued by patients who have genetically
flawed children.
Until that happens, Dr. Delahunty said, OB/GYNs will continue being plagued by
wrongful-birth suits in the states where they are permitted. It is not known how many
wrongful-birth suits have gone to court nationwide, as they are not monitored by legal
associations, pro-life groups or the American Bar Association. "It's difficult to
tabulate how many cases are happening, partly because records are kept by individual
courts and not consolidated," said Mr. Forsythe, whose organization provides legal
counsel to state legislators confronted with abortion legislation. "Once
wrongful-birth suits get state approval, they become rather routine."