Source: Cincinnati Enquirer and Cincinnati Post, 1/27/00
Editor’s Note: Personally, I think that any parents who file a lawsuit like this are unfit parents. Parents must love their children unconditionally! Alicia should be taken away from her parents and put up for adoption to a couple who will love her no matter what.
Columbus A Springdale couple say they would have aborted their daughter, Alicia, had doctors told them she was likely to be born with spina bifida, and they want the Ohio Supreme Court to allow her to collect damages.
Lawrence and Patricia Hester say the doctors knew the condition of Alicia when she was an unborn child and failed to inform them. They believe their daughter, now 6, should be entitled to collect damages from her mother’s doctors to compensate for medical and educational expense and for pain and suffering she will endure throughout her life.
Editor’s Note: Notice the use of the term “unborn child” here. I bet if the parents knew she would have spina bifida before she was born it would have been a “fetus.” One more note, the pre-natal tests they are talking about here are not 100% accurate.
The case prompted justices this morning to quiz lawyers on whether the case constitutes a claim for wrongful life, or wrongful birth, or impaired life or is simple medical malpractice.
Spina bifida is an irreversible open spine defect, and Alicia was born paralyzed from the chest down and is mentally impaired. She will require lifetime care. The Hesters say they would have aborted her if they had learned tests showed a high risk of birth defects, but that Drs. Leela Dwivedi and Luis Saldana negligently told them testing showed a normal child.
The First District Court of Appeals in Cincinnati ruled the Hesters could pursue damages against the physicians, but found Alicia had no standing to collect damages on behalf of herself through her parents. The case has not yet reached trial.
John Holschuh Jr., the Hesters’ lawyer, argued the doctors’ failure to give her parents the potential option of an abortion led to a predictable outcome and its associated costs.
Michael Lyon, the lawyer for Dr. Saldana, said the doctors should not be required to pay damages to Alicia Hester because they did not cause her birth defects and should not be held responsible for the fact she is alive.
“The inescapable truth is … they are saying the child should be dead. What would have avoided the damages to this child? Death, termination,” Lyons argued. “I can’t imagine the child standing here 10 years from now, saying, `I want to be dead.’ ”
Lawyer Ann Ruley Combs, representing Dr. Dwivedi, told the justices they should not recognize a “wrongful life” claim and that any potential negligence by the doctors did not give the child the right to seek damages. “If the child has a claim … related to life, we’re creating an expectation that every child has a right to be born perfect,” she said.
Outside the court chambers, Lawrence Hester said the doctors were not only caring for his wife, but for his daughter. “The physician has an obligation to the child,” he said. Mrs. Hester said she was “very upset.”
The justices appeared intrigued by the case and questioned the attorneys intently.
“The child may reach an age where she says, `I’m happy to be alive. I was glad I was born,’” said Chief Justice Thomas Moyer. Justice Andrew Douglas observed: “The child in utero does not have a choice whether to live or die.” Justice Paul Pfeifer posed the point of motivation and whether the doctors were morally opposed to abortion, but his query went unanswered.
In a previous ruling, also arising in Cincinnati, the Ohio Supreme Court refused to recognize “wrongful life” in the case of an elderly man who was resuscitated against his wishes.
In a legal brief, the Ohio Right to Life Society also pushed the court to reject the claim. Legislative Counsel Mark Lally said, “You have a situation where the only way to avoid injury to a child is to abort him or her. It comes down to saying her life isn’t worth living. That’s not someplace we want to go with our laws.”
The court should issue an opinion within three to six months.
Editor’s Note: If we allow these kinds of lawsuits, it won’t be long before more people start thinking like Peter Singer. Parents will be deciding because of a child’s “quality of life,” we should just kill them or let them die!
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