Arizona Bill Would Prevent ‘Wrongful Birth’ Lawsuits

By MICHELLE L. PRICE | February 10, 2012

An Arizona legislator wants to shield doctors from so-called “wrongful birth” lawsuits, which can arise if physicians don’t inform pregnant women of prenatal problems that could lead to the decision to have an abortion.

Republican state Sen. Nancy Barto, who introduced the proposal, said allowing such medical malpractice suits to continue endorses the idea that, if a child is born with a disability, someone is to blame.

Arizona could become the latest state to ban lawsuits similar to one filed by a Florida couple whose son was born with no arms and one leg.

The couple sued their doctor for not detecting their son’s disabilities before he was born, arguing that if they had known, they would have elected to have an abortion. In September, a jury awarded them $4.5 million to care for the boy.

Gary E. Marchant, an Arizona State University law professor who specializes in genetics laws, said nine states bar both “wrongful life” and “wrongful birth” lawsuits. There have been about a hundred such lawsuits nationwide, including a few in Arizona, said Marchant, who recently did a study on the subject.

Many cases involve a doctor failing to share or properly communicate the results of prenatal screenings or risk factors to parents, he said. Those screenings can test for conditions such as cystic fibrosis or Down syndrome, Marchant said.

Cathi Herrod, president of the conservative advocacy group Center for Arizona Policy, which proposed the bill to Arizona legislators, said she opposes the lawsuits because they give the impression that “the life of a disabled child is worth less than the life of a healthy child.”

“Public policy should reflect in Arizona that no child’s life is a wrongful life,” Herrod said.

Sen. Linda Lopez, a Tucson Democrat, said she doesn’t understand why the bill is needed, and feels it infringes on a woman’s right to make decisions about her health.

Lopez sits on the committee that will hear the bill and she plans to vote against it.

“I’m not going to help the Center for Arizona policy in their fundraising efforts,” she said.

Planned Parenthood has no plans to weigh in on the bill, said spokeswoman Cynde Cerf.

The lawsuits can also be brought in cases involving in-vitro fertilization, with parents claiming they would have not have implanted an embryo if they’d known about the presence or risk of serious disabilities or diseases.

The concept has also been applied in cases involving failed vasectomies.

In 2010, an Oregon couple sued a doctor and medical group for $650,000 to help with the costs related to the woman’s cesarean delivery, the raising of their son and his future college education. The couple said the doctor failed to disclose complications when performing the husband’s vasectomy a few years before.

Barto said the bill will still allow “true malpractice suits” to go forward. The bill states that its restrictions would not apply to lawsuits involving an “intentional or grossly negligent act or omission,” including one that violates a criminal law.

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