You read my mind. I was going to ask if you’d be ok sharing your thoughtful follow-up comment here.

Given that I don’t know enough about the Estradas and their motivations, it’s hard to say exactly what the circumstances were. Maybe they had an ambulance-chasing lawyer who urged them to pursue this? Or maybe their doctor didn’t give them a favorable impression? I still believe patients should have recourse if they receive inadequate care. I just don’t know if this is one of those cases for sure.

I found the last sentence in one of the abstracts to be intriguing:
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=2956424&dopt=AbstractPlus
J Med Ethics. 1987 Jun;13(2):69-73.
“Liu [...] suggests that court may not be the best forum for settling these disputes, and proposes a social security system to compensate handicapped children born because physicians were negligent in offering parents prenatal counseling and screening.”

Thank you for the research.

Dear Hsien,

Thank you for your reply.

My point in asking if the failure to seek a second opinion should be used as a criteria for decreasing the award value would be be to indicate that many factors were at play in the decision to have a second child and in not getting the fetus tested. Some people have genetic testing done without prior reason and some have it done despite reassurances from physicians. The parents made a choice and are suggesting that the major factor in not requesting testing of the second child was the physician’s diagnosis. I would not wish to assign blame, but perhaps request that the parents assume a share of the responsibility.

The parents assert that given a positive test for the syndrome, the second fetus would have been aborted. That’s a reasonable, but untestable assertion. There is the formal possibility that they may have come to accept that their second child would have special needs as does their first. Would that have modified the award amount? Perhaps I am most disturbed by the notion of a “wrongful birth” in this context.

If, as you correctly suggest, the parents were overwhelmed by the day to day cares of raising a special needs child, it leads me to wonder why they chose to care for a second child. I have no time line to indicate the interval between the first birth, faulty diagnosis and the second conception, but let us hope the parents spent some measure of time contemplating their choices.

The utopia you suggest “…that we could trust our health care providers to do what’s best for us and our families” is unlikely to ever happen while we remain mortals (forgetting for the moment that some may endow physican’s with demi-god status with accordant rights and responsibilities) and seems to remove the responsibility of action (or inaction) from each of us. My paranoia/sense of diligence is too active to consign to another (however well trained and competent) the decisions that affect me and mine.

I fervently hope you are correct in your belief the Estradas are very loving and caring. That they entered the legal foray to get assistance for their child may be taken as an example of their care. I believe their foray was misguided as was the jury’s verdict. We are not given reason believe that the physician made anything more than one or more professional errors (and perhaps in good faith). Without a more complete understanding of the difficulty of diagnosing the syndrome and the steps taken to arrive at the diagnosis, I would be reluctant to assign a severe financial penalty (even if the physician will not pay from his pockets). Am I overly skeptical in believing that the jury was not informed of the state of the art for this medical diagnosis?

To all,

Thank you for a respectful discussion on a contentious issue.

Best regards,
Patrick

To everyone else, here is my .02.

A wrongful life is not close too a wrongful birth. A wrongful life means that the child would sue the parents for being born. A wrongful birth means the parents sue other people for being burdened with a disabled child that could have been avoided. In essence, a wrongful birth suits can be genetic or prenatal malpractice suits tort cases.

Nobody talks about a wrongful pregnancy (beyond rape), but a wrongful pregnancy means that you became pregnant or had a child period without wanting it (this happens if a pregnancy isn’t detected or a sterilisation procedure fails).

A wrongful breech of warrenty means that a mother or child can sue because a bad embryo was used in the IVF procedure in the case preimplantation diagnostic is available. This opens up the possibility that a child can sue related to preimplantation diagnostics.

Here are some good readings on this topic:

http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=2956424&dopt=AbstractPlus

http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=6868627&dopt=AbstractPlus

http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=10986948&dopt=AbstractPlus

http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=9646588&dopt=AbstractPlus

http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=8691997&dopt=AbstractPlus

http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=9131346&dopt=AbstractPlus

The issue here is not that the parents should have gotten a second opinion; it’s the fact that a misdiagnosis took place that lead to a failure for a genetic test that would have been available if the correct diagnosis was given.

Here is an NPR video:

http://www.npr.org/templates/story/story.php?storyId=5283840

The difference between a physician’s responsibility and the parents’ would be that the physician is trained to diagnose diseases. Certainly, the parents have the right to seek a second opinion but if they don’t know enough to do so, can we still blame them? In an era of the empowered patient, some of us won’t rest until we learn everything but many people are faced with the day-to-day struggles of dealing with severely disabled children and are probably completely overwhelmed. It would be nice to feel that we could trust our healthcare providers to do what’s best for us and our families.

I’m sure the Estradas love and care for both of their sons equally but feel they need to be compensated for the additional burden of caring for them. And considering the state of the healthcare system in the US, I’m sure they could use every penny. I just can’t imagine them as uncaring, greedy parents.

If a misdiagnosis had occurred and there was no in utero test for Smith-Lemli-Opitz syndrome, what would the jury have awarded the plaintiffs? How much is a misdiagnosis award worth vs. a wrongful birth award (i.e. a confounding error caused by the misdaignosis)?

If the second fetus would have been aborted by an unfavorable in utero testing, the value of the child that developed from that fetus has been delimited by the parents (i.e. the fetus was not of unlimited or infinite worth). Given the now ‘delimited’ value of the child, I wonder what prevents the parents from giving away the child to become a ward of the state?
If the jury validates the plaintiff’s claim that the second son is a wrongful birth, I wonder how they view and treat their second child.

Are they seeking in the award only assistance in raising their two children who will incur far greater costs than average? Are there not assistance programs (and one may assume inadequate) to assist families caring for special needs children without resorting to litigation?

I am perplexed at the jury’s rationale for the award. The plaintiff’s attorney’s motives I can more readily comprehend.

I often wonder how things will be 10 years from now. I hope we will have made lots of progress by then but, on the other hand, how different is life now than it was when we were kids?