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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
pregnancy, in words so gentle my wife did not immediately realize they were recommending abortion.

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
life-ending decision with kind words, sympathy, and a gloomy prognosis for their child. Abortion is made to seem the kind option when the parents do not know what they are losing -- the opportunity to love a special child.

(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
litigation attorney and the senior associate for Thomas H. Roberts & Associates, P.C. in Richmond.  Andrew served as President of Lex Vitae (pro-life club) at Ave Maria School of Law in Naples, FL, where he earned his J.D. in 2010.  He's now a pro-life blogger for Save The 1.  Listen to Andrew Bodoh's guest lecturer speech at his Alma Mater, Christendom College from 2011 on Understanding the Culture of Life (Item 16, via iTunes.)