Wrongful Birth Claims Medical Legal Issues in Obstetrics Practice

Wrongful Birth ClaimsWrongful Birth ClaimsWrongful Birth ClaimsWrongful Birth ClaimsMedical Legal Issues in Obstetrics Medical Legal Issues in Obstetrics PracticePracticeMedical Legal Issues in Obstetrics Medical Legal Issues in Obstetrics PracticePractice

Goals of PresentationGoals of PresentationExplanation of the the law applicableExplanation of the the law applicableDescription of some of the clinical scenariosDescription of some of the clinical scenarios

Claim CategoriesClaim Categories

Wrongful Wrongful ConceptionConception

Wrongful Pregnancy Wrongful Pregnancy

Wrongful Birth Wrongful Birth

Wrongful LifeWrongful Life

Claim CategoriesClaim Categories

Tort Tort

Contract Contract

WarrantyWarranty

Consumer Consumer ProtectionProtection

NegligenceNegligence

RelationshipRelationship

DutyDuty

Breach of DutyBreach of Duty

Cause legal injuryCause legal injury

DamageDamage

Colorado Law as a Colorado Law as a TemplateTemplate

Lininger v. EisenbaumLininger v. Eisenbaum,, 764 P.2d 1202 764 P.2d 1202 (Colo. (Colo. 1988)1988)

Dotson v. BernsteinDotson v. Bernstein, Colo. App. 08CA0020 , Colo. App. 08CA0020 (2009)(2009)

Genetic CounselingGenetic Counseling [limits on actions] § 13-64- [limits on actions] § 13-64-502 502 C.R.S.C.R.S.

Wrongful BirthWrongful 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 LifeWrongful Life

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

Wrongful LifeWrongful Life

No Colorado ClaimNo Colorado Claim

Wrongful PregnancyWrongful 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 Dotson v Bernstein (March (March 2009)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.

DamagesDamages

PregnancyPregnancy

DeliveryDelivery

Rearing a child?Rearing a child?

Education?Education?

DamagesDamages

DotsonDotson decision did decision did NOTNOT decide decide damagesdamages

PregnancyPregnancy

DeliveryDelivery

Rearing a child?Rearing a child?

Education?Education?

Claim ClassificationClaim ClassificationClaim ClassificationClaim ClassificationBy activityBy activity

Past Dx of familyPast Dx of family

Chat (counsel)Chat (counsel)

ART, PGD, U/S, ART, PGD, U/S, CVSCVS

BTL, OCP, VasBTL, OCP, Vas

D&C, TABD&C, TAB

By claimantBy claimant

child, parentchild, 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 13-64-502 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 LawCriminal Law

Colo. Criminal Law

•People v. Lage, 2009-CO-0529.075, 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•18-3-101, 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 § 1841. 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.

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