While no pregnancy comes with a guarantee, there are many tests to help identify abnormalities or genetic disorders. What happens when the tests results are wrong, read incorrectly, or information is incorrectly typed into a report?
After three miscarriages, doctors finally told “Colleen” she had a viable pregnancy. Two sonograms confirmed her second child was a girl. Due to Colleen’s age, and what appeared in a sonogram to be larger than normal ventricles in the baby’s brain, Colleen was scheduled for an amniocentesis. The results were not good. According to doctors, the amniocentesis showed that not only was the baby a boy, but might be intersex and have a genetic disorder. Colleen and her husband were told that there were a number of disorders associated with such a diagnosis, which could also cause hormonal abnormalities and organ dysfunction.
After meeting with a genetic counselor, the couple chose to have an abortion. Colleen said the counselor told her that the child could suffer liver and kidney failure, even an early death. She said the counselor also told her that she was lucky doctors caught the defect in time to abort.
A second shock came a day after the procedure when the couple learned the test results were wrong. They were informed by the lab that a secretary mistakenly typed “XY” instead of “XX” in the gender field of the FISH report. An autopsy of the fetus showed no defects or abnormalities.
The couple filed a “wrongful abortion” lawsuit against the lab, hospital, doctors, and the genetic counselor stating that Colleen would not have undergone the abortion if not given two choices – abort the baby or take the chance of having a monster. The genetic counselor recalled the meeting differently, saying Colleen had already decided to terminate the pregnancy before her visit, and that she even asked the couple if they would like to wait for the final, complete chromosomal analysis before making a decision. A jury found the lab and its director negligent, but stopped short of attributing fault for the abortion itself, and refused to award damages for the couple’s physical and emotional injuries. The verdict was upheld in an appeals court.
This case is the most recent “wrongful abortion” case, where guided by inaccurate information, a woman decides to abort an otherwise healthy and wanted child. As in wrongful birth cases, a wrongful abortion is seen on the same premise that—“If I had known this about my fetus, then I would have made a different decision.” Yet, the law favors heavily for wrongful birth cases because parents of a child born with severe birth defects will face extensive medical costs and more to raise a child with a disability. In a wrongful abortion lawsuit, parents seek compensation for misinformation provided by the hospital, but the fetus has already been aborted. What about compensation associated with the physical and emotional injuries? In both cases, parents receive false results on a prenatal test; someone misreads lab results or records results incorrectly. Both cases are about negligence and holding the wrongdoer accountable for failing to provide accurate and appropriate information.
I wonder, how many times parents have been told their child is unhealthy only to abort what could have been a healthy child? We may never know because to detect a wrongful abortion, a mother would have to suspect that the initial diagnosis was incorrect and provide some proof. This is problematic considering the fetus is usually disposed of after the procedure. Until we can 100%, confidently, rely on the medical profession, Lawsuit Financial would recommend a second opinion whenever it comes to genetic tests or any other medical diagnosis.
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.
