Wrongful Birth Lawsuit Filed in Ohio
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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Ohio tackles emotional
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Justices weigh whether girl can sue doctors
