Project Logo

Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Background

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

Matthew A. Rarey

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.

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."

Print Friendly and PDF