Follow Save the 1
Thursday, February 2, 2017
Hope Has Become a Liability Risk in Cases of Poor Prenatal Diagnoses, by Andrew T. Bodoh, Esq.
As a lawyer, I appreciate the legal quandary doctors face when they
discover an unborn child with a significant health issue. As a father who has
experienced a poor prenatal diagnosis for a child, I sympathize with both the
parents and with their children.
I am a plaintiff’s litigation attorney in Virginia. In short, I sue
people for a living on behalf of clients. In my practice, I have learned that a
person does not have to do anything wrong to be sued. After all, our society (for
better or for worse) uses lawsuits to resolve conflicts between people, and we
all know you do not have to do something wrong to find yourself in conflict
with another person.
Because you don’t have to do something wrong to be sued, doing
everything right is not always enough to save you from a lawsuit. In high-risk
situations, you have to do more. After all, we all want to avoid being sued,
even if we win in the end.
If a person really wants to avoid being sued, there are four things he
or she should do. First, avoid situations where someone can later ask “Why
didn’t you?” Second, avoid conduct where there will be big, provable damages.
Third, if there is a risk of harm, confuse the source of the harm. Fourth, get
consent for what you do.
In medicine, using these and similar methods is called “practicing
defensive medicine.” In ordinary cases, it may mean the doctor performs a test
or a procedure which carries with it an economic or emotional cost, even if
there is a disproportionately small risk that process will have a health
benefit. In this way, they can avoid a lawsuit which essentially asks the
question, “Why didn’t you?”
Unfortunately, when a doctor sees a significant problem in an unborn
child, the best means of avoiding liability is to recommend abortion.
First, the doctor has to discuss abortion with the expectant mother. In
the U.S., abortion is typically a legal medical option for the mother through much of the pregnancy where
there is a poor medical diagnosis for the child (at least up to a point), and
the mother generally has the final say on this matter. Moreover, most of the medical
profession considers abortion to be a relatively safe medical procedure for the
woman to undergo. Failing to discuss abortion raises the question “Why didn’t
you?” if a complaint is filed with the medical licensing board. In
approximately half the states, doctors can be sued for failing to recommend an
abortion.
Second, if a child is born with a serious medical condition, it is not
difficult to prove the costs of caring for the child. On the other hand, if the
child is not born, there are generally no big provable damages.
Third, if there is physical or emotional harm from the abortion, the
proximate cause of that harm is difficult to pin on the doctor recommending the
abortion. If there is harm from not having abortion, the treating physician can
be blamed.
Finally, a mother’s consent to the abortion becomes a large obstacle to
legal liability. If you consent to a legal procedure, it is much more difficult
to sue.
As a result, doctors have an incentive to recommend abortion when they
discover a serious prenatal abnormality.
So how does this play out in practice?
Building from my own experience, at the end of a long, exhausting, and
stressful day of tests, the parents are called into a small room where their
hopes for this child's future are torn down with a technical explanation of the
child’s condition, and often with a very bleak prediction of what is to come. To
say the family, and especially the expectant mother, are emotionally vulnerable
is like saying Mount Everest is a bump on the map. The word “abortion” will
probably never come up.
In my case, they actually used my daughter’s name as
they talked about terminating the
My daughter Elizabeth was diagnosed with bilateral schizencephaly when
my wife Joyce was 22 weeks pregnant. Basically, Elizabeth was missing a large
portion of her brain. We were advised that she would likely need lifelong care
in a medical institution, if she survived long enough to leave the hospital. We
were devastated, but abortion was out of the question for us. Later, my wife
and I reviewed the available medical literature. We formed our own opinion that, while the data was not favorable, it did not support the doctors’ dire prognosis.
In our journey since that day, we have met remarkable people both
inside and outside the medical profession. We met a doctor who opened his heart
about his own daughter who he lost after birth in similar circumstances.
We met the wonderful nurse who has made it her career to care for families with
a little one who will not leave the delivery room or NICU.
By the grace of God, and with the help of some wonderful medical
professionals, Elizabeth was born five weeks early. A month later, she received
a VP shunt. She has low vision, serious developmental delays, ongoing seizures -- and a smile that lights up the world.
I do not know what life will hold for Elizabeth. I know she has taught
me more about love than some people learn in a lifetime. I hope for the best.
In our society, hope can be a liability risk. As a result, vulnerable
parents are ushered into a
(Photo right - Andrew holding daughter Elizabeth, and wife Joyce holding their second daughter.)
BIO: Andrew Bodoh resides in Virginia with his wife Joyce and two daughters, where he is a
Subscribe to:
Post Comments (Atom)
0 comments:
Post a Comment
Comment rules:
Please do not criticize or berate others you can disagree with their comments and views but please be an adult about things and don't resort to cursing, insulting, and name calling.
Please do not post any private information about yourself or others (i.e. email addresses, phone numbers, etc.)
Please be respectful, civil, and considerate.
The following is NOT allowed under any circumstances and will result in your comments being deleted and not published, and could result in you being banned from any further commenting.
No Blasphemy in any way shape or form this is a Christian owned blog.
No swearing, slandering, or threatening of any kind.
No insults of any religion, gender, race, will be allowed.
Any threats will be immediately reported to authorities.