The Wrongful Birth Conundrum

Wrongful birth is a cause of action for medical malpractice is most states, but as of February of this year, wrongful birth suits are no longer accepted in Texas. A wrongful birth lawsuit is one that is filed by the parents for the birth of a child with genetic anomalies or defects. The parents sue the doctor for failing to warn them about the potential for disability, thereby removing their opportunity to discuss other options, including their choice to have an abortion done if the anomalies are too severe. Sen. Brandon Creighton, who authored the bill banning wrongful birth suits, says that allowing lawsuits encourages doctors to seek out every possible defect and to promote abortions to reduce their risk of being sued. He believes that every person has a right to life, disabled or not. Texas is now one of nine states that has banned wrongful birth lawsuits.

While we at Udeshi Clark & Associates support Sen. Creighton’s decision to ban wrongful birth lawsuits in Texas, we also understand that a parent’s decision to file a wrongful birth suit is personal and complicated. Below we explore just what might compel a parent to file a lawsuit for the birth of a child.

Wrongful Birth Cases are Rare, but When They do Arise, it is for a Reason

When media gets wind of wrongful birth lawsuits, they often portray the parents as being cold and unloving, but generally, this is far from the case. Dortha Biggs is one mother who filed a wrongful birth suit but who still loves her daughter, Lesli, more than life itself.

In March of 1969, Dortha gave birth to daughter Lesli. Lesli arrived in the world blind, deaf, and severely brain damaged. This was due to the rubella virus, which Dortha had contracted when she was just two and a half weeks pregnant—before she even knew she was expecting. Though Dortha recovered from the virus, the virus had taken root in the fetus’ bones, skin, and nerve cells. Lesli would live her entire life in pain and agony. Dortha would be forced to shoulder the burden of her daughter’s pain.

Lesli spent 100 days in the hospital before her first birthday, has undergone more than 20 surgeries including an open heart at just three months old, and has travelled more than 100,000 miles to visit hospitals that promised the potential of making her life better. Today, Lesli lives in a group home and has yet to say her first words.

In the early years of Lesli’s life, Dortha filed a lawsuit against her doctor for failing to diagnose the virus that essentially ruined Lesli’s chances at living a normal life. She claimed that if she had known, she would have had an abortion. On February 19, 1975, the Supreme Court made a ruling that stunned the legal communities and that reversed the decision of the lower courts. That day, the high court's ruling set a precedent that said a woman could sue her doctor for a "wrongful birth."

Dortha received a $120,000 dollar settlement. At the time, Lesli’s medical bills amounted to $21,472. She was only making $4,200 a year as a teacher. That money has been used over the years to help Dortha pay for Lesli’s medical care, housing, and other needs. Without it, there is no telling how long Lesli would have lived, or what kind of pain she might have lived with.

To read Lesli’s full story, visit CNN.com.

Dortha and Lesli’s case is just one of many that is not what it seems. Dortha loves her daughter, and because of that, she wishes she had been given the option to abort. When asked in the deposition what she would have done if she had known she had rubella at the beginning of her pregnancy, she replied, “I would have done the kindest thing that I could have known to have done for her, and that would have been to terminate the pregnancy."

Our Compassionate Dallas Medical Malpractice Attorneys Understand There are Two Sides to Every Story

At Udeshi Clark & Associates, our Dallas medical malpractice attorneys are here to represent individuals who have been wronged by their medical professionals, not to judge. Though wrongful birth suits are illegal in Texas, many other causes of action—including wrongful pregnancy—are accepted. If you believe that you have suffered from medical malpractice, and if you want to work with an attorney who will listen to your story, assess the situation from an unbiased perspective, and who will provide the compassionate and aggressive legal representation every medical malpractice deserves, call our office today at 469-906-2226 to schedule a consultation.

(image courtesy of Kate Krivanec)

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