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
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
"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."