Wrongful Birth Claims Medical Legal Issues in Obstetrics Practice

Goals of Presentation Explanation of the the law applicable Description of some of the clinical scenarios

Claim Categories Wrongful Conception Wrongful Pregnancy Wrongful Birth Wrongful Life

Claim Categories TortContractWarranty Consumer Protection

Negligence RelationshipDuty Breach of Duty Cause legal injury Damage

Colorado Law as a Template Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988) Dotson v. Bernstein, Colo. App. 08CA0020 (2009) Genetic Counseling [limits on actions] § C.R.S.

Wrongful Birth "Wrongful birth" is the term used to describe a medical malpractice claim brought by the parents of a child born with an impairment or a birth defect. In this case, the malpractice claim is based on an allegedly [negligent diagnosis] which resulted in the failure to properly inform the parents of potential risks to a second child. (Lininger)

Wrongful Life “Wrongful Life”on the other hand denominates the medical malpractice claim in which the child alleges that but for a [physician’s negligence, as described above,] he would not have been born to suffer the impairment. “Wrongful Life”on the other hand denominates the medical malpractice claim in which the child alleges that but for a [physician’s negligence, as described above,] he would not have been born to suffer the impairment. (Lininger)

Wrongful Life No Colorado Claim

Wrongful Pregnancy A third cause of action, wrongful pregnancy, is brought by the parent of a healthy child alleging that but for the [defendant's failure to perform a sterilization procedure or an abortion properly], the child never would have been born. (Lininger)

Dotson v Bernstein (March 2009) Plaintiff, Dionne Dotson, sought the services of defendant, Dell L. Bernstein, M.D., to terminate her unwanted pregnancy but later gave birth to a healthy baby. Plaintiff filed a complaint against defendant, alleging negligent medical treatment causing injuries resulting from the pregnancy, delivery, and financial burden of raising an unplanned child, and requesting damages connected to the pregnancy and childbirth and the costs of rearing and educating the child. On defendant’s motion, the court dismissed plaintiff’s complaint for failure to state a claim. The court determined that, because plaintiff had delivered a healthy child, she suffered no legally cognizable injury. We reverse and remand.

Damages PregnancyDelivery Rearing a child? Education?

Damages Dotson decision did NOT decide damages PregnancyDelivery Rearing a child? Education?

Claim Classification By activity Past Dx of family Chat (counsel) ART, PGD, U/S, CVS BTL, OCP, Vas D&C, TAB By claimant child, parent

Genetic Counseling No claimant, including an infant or his personal representative,parents, or next of kin, may recover for any damage or injury arising from genetic counseling and screening and prenatal care, or arising from or during the course of labor, delivery, or the period of postnatal care in a health care institution, where such damage or injury was the result of genetic disease or disorder or other natural causes, unless the claimant can establish by a preponderance of the evidence that the damage or injury could have been prevented or avoided by ordinary standard of care of the physician C.R.S. 2008

Fetal Injury Cases Callaham v. Savsky,153 Colo. 291,385 P.2d 674, (Colo. 1963) premature birth & death Pizza Hut v. Keefe, 900 P.2d 97 (Colo. 1995) premature birth & death Gonzales v. Mascarenas, 190 P.3d 826 (Co. App. 2008) premature birth & death

Criminal Law Criminal Law

Colo. Criminal Law People v. Lage, 2009-CO , Colo. App. 08CA0617(May 28, 2009) Fatal in utero injury resulting in death after live birth Is it homicide?

Person under Homicide Section of Criminal Code , C.R.S. 2008: Homicide means the killing of a person by another. “Person” when referring to victim of a homicide, means a human being who had been born and was alive at time of homicidal act

What Crime fits NOT Murder; Not Reckless Indifference vehicular homicide; not under-the- influence vehicular homicide YES: Reckless child abuse resulting in death; deadly eluding; careless driving causing death; under-the-influence vehicular assault

Federal Criminal Protection of Fetus 18 USC § Protection of unborn children [offense woman also separate offense if harm in utero fetus] (1) [NOT APPLY TO] of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law; (2) of any person for any medical treatment of the pregnant woman or her unborn child; or (3) of any woman with respect to her unborn child.

Sit down Bob