4th DCA overturns a $ 2.5 million wrongful birth medical malpractice verdict

Posted by Guy DiMartino | Jan 13, 2014 | 0 Comments

Florida medical malpractice lawyer discusses case in which  the 4th DCA overturned a $ 2.5 million wrongful birth verdict against an obstetrician.  

What is a wrongful birth medical malpractice claim?

A wrongful birth claim is a type of medical malpractice claim where a mother gives birth to a deformed child and takes the position that the “negligent treatment” or “negligent advice” deprived them of opportunity to avoid pregnancy or abort a pregnancy.

Facts of the Case

During her pregnancy the child's mother started bleeding and was referred to the hospital for ultrasounds.  The first ultrasound was limited did not allow the doctor to view the baby's arms and legs. The report noted that the child's anatomy appeared normal but there were some other issues that required additional testing and genetic counseling.

The genetic counselor recommended amniocentesis, which the mother declined.  However, the mother did undergo a more involved ultrasound called a “level II” ultrasound. The report of the ultrasound mentioned that the baby's hands and feet were not visible.  The child was born with no hands, one leg, and a part of a foot that was attached to the hip on the other leg.

The Lawsuit

The parents of the child claimed that the obstetrician was negligent because she didn't tell them that the fetus had the limb defects that prevented them from making a decision to terminate the pregnancy.

The defendant wanted to proffer the “so what defense.”  What the defendant wanted to argue was that Florida has an antiabortion statute that would forbid a legal abortion because the fetus was in the third trimester.  The parents took the position that the fetus was still in second trimester.  The trial judge did not allow the defendant to use this defense because she found that the antiabortion statute was not relevant to the negligence.  The jury awarded the child $2.5 million dollars.

4th DCA's Ruling

The appellate court said that the trial judge erred when she did not allow the defendant to argue the antiabortion statute.  Specifically, the court said:

A party is entitled to have the trial court instruct the jury on its theory of the case when the evidence, even though controverted, supports that theory.

My Analysis

The new jury will have to decide whether the doctor was negligent and whether the negligence caused or substantially contributed to the birth defect. The defendant will be able to argue her so what defense.  In essence, the defendant can argue that even if she was negligent by not informing the parents – “so what” because the mother would not have been legally able to receive an abortion.

The “so what” defense is pretty common in medical malpractice cases.  It typically goes like the above argument.  Even if I was negligent – “so what” – it didn't make a difference in the outcome.

What are your thoughts about this case?

About the Author

Guy DiMartino

I have loved helping people in need for almost three decades.  It has been my privilege to serve people as their pastor, chiropractor, and lawyer.  The current focus of my legal practice and life’s passion is helping the seriously injured receive complete compensation for their injuries. I am a Florida Board Certified Civil Trial Attorney. What that really means is that I am no stranger to the courtroom.  I have successfully tried and handled serious cases in state and federal courts.  My backgrounds in both law and chiropractic medicine have given me a unique perspective, extensive knowledge, and wide experience to serve those I represent. For years as a chiropractic physician, I treated my patients to alleviate their pain and suffering. Now as their lawyer, I fight to bring them financial compensation for their pain and suffering. During my years of service, I have handled many traumatic injury cases ranging from the traumatic amputation of a limb to brain and spinal cord injury.  I consider it an honor to serve you and your family. When a person entrusts me and I accept to represent them, I don’t take that relationship and responsibility lightly. My approach is that we work as a team. We are partners and our goal is the best outcome for you and your family with the highest level of communication throughout. I am always available by phone or email to discuss my potential representation of your injury case. I handle cases throughout Florida. Education: National University of Health Sciences – BS (1984), DC (1986) Valparaiso University School of Law – JD, summa cum laude (1999) Bar Admissions: Florida (2000), Indiana (1999), Illinois (2000, expired); US District Courts of Appeals (11th Circuit, 7th Circuit); United States District Courts: Southern and Middle Districts of Florida; Northern and Southern Districts of Indiana; Northern and Central Districts of Illinois; and District of Colorado. Certification:  Civil Trial, Florida Bar Guy DiMartino on Google+ – Circle Guy on Google+ Guy DiMartino on Google+


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