South Florida Personal Injury Lawyers Blog
Wrongful birth is a type of medical malpractice in which parents argue that negligent advice took away their chance to stop conception or terminate the pregnancy. In a recent wrongful birth case, an obstetrics and gynecology group and doctor appealed a final judgment in a medical malpractice action in which the plaintiffs were awarded $2.5 million in damages.
The case arose after a child was born with significant birth defects. During the mother’s pregnancy she had experienced bleeding and had to be examined using ultrasound technology. Her first report indicated the anatomy was mostly normal, but the view was limited based on the fetal position and there were other abnormalities.
The mother was referred to genetic counseling and had to undergo a more detailed ultrasound. She was also given the option for amniocentesis, but declined that option. The second ultrasound also had a limited view, but noted that the anatomy that could be seen looked normal and growth was appropriate.
When the baby was born however, the baby had no hands, only 1 leg and part of a foot attached to the hip on the other side. The plaintiffs filed suit against the medical providers. She argued that the defendants’ care fell below the standard of care because they failed to advise of the limb defects.
The defendants tried to prevent the plaintiffs from presenting evidence that the second ultrasound caused the damages. They argued that even if the second ultrasound had been correctly reported, the mother would have been in her third trimester and wouldn’t have been able to get a lawful abortion in Florida. The plaintiffs argued that using the date of conception, the mother wasn’t in her third trimester at the time of the ultrasound.
The trial court ruled that evidence related to third trimester abortions was irrelevant. It also concluded she wasn’t in the third trimester and admitting evidence of the abortion statute would create a mini-trial on the question of exceptions. It further concluded that there was no claim the defendants should have recommended or performed an abortion.
When the trial went forward, the plaintiffs put forth a medical expert who testified that both ultrasounds were incorrectly reported. The mother testified she would have had an abortion if she had known there were birth defects.
After the plaintiff presented her case, the defendants asked for a directed verdict. They argued that any mistakes made in the third trimester were not the legal cause of damages. The trial court denied the motion because the mother could have gone to another state to get an abortion. After the judgment against the defendants, they appealed.
They argued on appeal that the issue of the abortion was relevant because the mother could not have obtained a termination as of the date of the second ultrasound. They argued that the trimesters should be calculated using the fetus’ gestational age.
The appellate court explained that the plaintiff’s lawsuit was based on the “wrongful birth” of
their child. Therefore, the mother has to prove that she would have gotten an abortion, if her doctor wasn’t negligent.
The appellate court also explained that there is nothing in the statute that defines how to calculate the weeks of pregnancy, though it does explained that the third trimester occurs after the 24th week of pregnancy. In this case, however, the court looked at the Florida Administrative Code and federal Supreme Court cases to determine the end of the second trimester and start of the third. The court agreed with the defendants that gestational age of the fetus should be used, partly because the date of conception usually wouldn’t be certain.
The court also reasoned that it was unaware of any cases that said a physician had a duty to tell a patient she could obtain a third trimester abortion in another state where the physician wasn’t licensed. Accordingly, it sent the case back to the trial court for a new trial on the question of liability and causation.
If you are seriously hurt because of a medical professional’s negligence, contact the knowledgeable Florida medical malpractice attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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