The Arizona Senate has just passed a bill that immunizes doctors from lawsuits arising from withholding information on pre-natal problems that “could lead to a decision to have an abortion”. There’s just no end to this shit;
The Arizona Senate has approved a bill that would shield doctors and others from so-called “wrongful birth” lawsuits.
Those are lawsuits that can arise if physicians don’t inform pregnant women of prenatal problems that could lead to the decision to have an abortion.
The Senate’s 20-9 vote Tuesday sends the bill to the state House.
The bill’s sponsor is Republican Nancy Barto of Phoenix. She says allowing the medical malpractice lawsuits endorses the idea that if a child is born with a disability, someone is to blame.
Barto said the bill will still allow “true malpractice suits” to proceed.
If the bill becomes law, Arizona would join nine states barring both “wrongful life” and “wrongful birth” lawsuits.
From Wiki;
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.[1] Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life, in which the child sues the doctor.
First of all, who gets to interpret the bit about “could lead to the decision to have an abortion”? What qualifies? Are we really wanting doctors legally protected from not disclosing the results of amniocentesis or AFP screening? We’re talking here about a doctor withholding information, not about medical mistakes. So a doctor could deliberately neglect to mention a positive indication for, say, spina bifida, and not be legally liable?
It’s brilliant. If people making informed decisions don’t make the “right” choice there’s a simple enough remedy; withhold that pesky information and remove any legal recourse.
That’s an interesting concept of Freedom®, and an even stranger one of Morality™.
This is the year 2012, I just checked. You know, in case you were wondering.
I’ve tried to come up with a humorous snark about this one, to start the day right. I can’t.
This tells us several things.
1. Conservative women can be just as nasty and toxic as the men, if not worse. That plastic-wands-up-the-vag bill, written deliberately to force such procedures, came from a female state senator too, in Virginia. And the same woman is floating another bill to allow parents to opt out of Gardasil injections, on the grounds that immunization against that virus “encourages sexual behavior in teens.”
2. Arizona is a creepy place to live. Plus, it contains all three of my brothers-in-law, two of whom are OK, but one not. It is on my list of states to Never Live Within, ever. They get up to really ugly shit in Phoenix. Remember Evan Meachum? They recalled that Governor, and may recall the current one also.
3. This bill will not stand under challenge in the courts. Withholding information for such a purpose, to discourage something that is legal, is so wrong that some judge will throw it out as contrary to public interest.
Or, it will lead to some smug asshole doctors being shot. Real serious rage can arise from cases like this, with decades of consequences for the families who were denied the information they needed to make their own choices.
4. When the hell did the so-called “conservatives” become so hostile to freedom?
OK, I’m really mad now.
This becomes more frightening by the week. Are there any other medical tests where doctors are given specific legal authorization to withhold the results from patients? Any test, anywhere, in any state?
Is there any state law giving doctors the right to withhold the results of biopsies so as to prevent a terminally ill patient from possibly making the choice to commit suicide?
In Arizona or anywhere else?
No?
Wonder why that is? Maybe Expat could explain this to us.
Putting aside whether a doctor who deliberately neglected to tell a woman things like this could be sued- He or she would be struck off immediately. It would violate medical ethics big time. And state legislatures do NOT get to define medical ethics.
What disgusts me even more, is that the creatures [sorry I don't consider them people] that come up with these ideas, ever reach a high enough position to voice them in the first place.
There will be backlash.
Back in the country again. A quick search indicates that most wrongful birth suits arise from claims that the doctor or lab failed to diagnose an issue with the fetus, not that the doctor lied about what he learnt in an effort to prevent an abortion. In fact, just Googling around, I didn’t find an instance of a suit where it was claimed that the doctor deliberately withheld information, just suits that alleged negligence in failing to diagnose an adverse circumstance. Perhaps someone else will find a case of deliberate lying.
Certainly there are arguments out there that this law would shield a doctor from liability in the event of lying, clearly an ethics violation, but it is probably questionable that the AZ law provides such protection. Note that attorneys would probably prefer to file a negligence suit as the costs of the suit beyond the deductible and any settlement would be paid by malpractice insurance companies. Lying would not be covered by such insurance and would need to be defended at the doctor’s or hospital’s own cost. Regular incidents or accusations of lying would certain damage any doctor’s reputation and perhaps also cause his insurance premiums to increase greatly.
The encouragement of lying appears to be a straw man argument. More to the point is the argument of whether the birth of a child with Downs or other adverse conditions is such an unfortunate circumstance that failure to diagnose it means that caring for their financial needs should be born by the doctor. It is probably not easy to definitively prove that the mother would have aborted the fetus as the case is occurring years after the birth.
If we are going to stray into straw man territory, abortion clinics in Bellingham, WA have long been notorious for catering to Vancouver, BC’s east Indian and Chinese communities preference for sons to daughters. A Canadian Medical Association Journal editorialized last month:
“It’s a girl!”— could be a death sentence
So, if we’re battling the culture wars, where do we draw the line to say that having a baby with conditions either unpalatable or difficult for the parent that failure to diagnose it is an event to which someone could be held liable? I can just imagine holding some doctor liable for a girl’s dowry.
tommy
Yes, I found that also.
Which begs the question why the “need” for the law, and why the wording “that could lead to a decision to have an abortion”
You’re raising points which don’t address the whole thrust of the piece, which is that these legislators are trying to whittle away the “informed” part of “informed consent”
What else can we reasonably conclude as an underlying motive?
welcome home btw. You haven’t missed much, except the Limbaugh debacle, which was long overdue anyway.
Tommydog is right, there haven’t been any suits (so far) involving a doctor who knowingly refused to pass on diagnosis of birth defects.
But as Kev points out, why then the law? Negligent diagnosis, if proved, is negligent diagnosis, whether of a fetus’s defects or cancer or a dissected aorta.
Is it a straw man argument to suppose that a fundy doctor (and there are a few around) might start hiding behind the statute and telling expectant mums all is well?
Seems pretty far fetched. And I still think if a doc did that he would be struck off quicker than you can say ‘sanctity of life’. In any state in the union.
I believe there are a number of states where ‘wrongful life’ suits are not allowed in cases where the child is healthy just not expected. Such as when an operation to tie off a woman’s tubes (or a man’s for that matter) is botched and ineffective.
But if a diagnosis of something hideous IS missed, negligently, then the doctor has broken trust with the patient. Tommydog might well ask, ‘Which patient’? And that is when we get to the crux of the matter.
Because this law is really about pushing the agenda of giving the full rights of a fully fledge human being to a fetus. Through the back door. They know it and we know it too. Hence the (legitimate I would say) outrage.
And I join in Gunny’s welcome back, Dog.
Though I certainly wouldn’t dream of doing it myself, I don’t feel I have a right to tell any woman anywhere that she can’t abort any fetus inside her own body, for whatever reason she may have, during the first and second trimesters. Including sex. I wouldn’t want to be a party to that if I was a doctor, either, or in any other capacity, but if we are serious about where the balance lies between the mother’s interests and the potential human life in her womb, and I for one am, utterly, then aborting female fetuses because they are the wrong sex has to be included in that.
Of course, if you believe in the invisible hand, if too many women abort females, then female babies will in their (strange to my eyes) view will soon be worth more than males. And the numbers will balance out.
“ if we are serious about where the balance lies between the mother’s interests and the potential human life in her womb, and I for one am, utterly, then aborting female fetuses because they are the wrong sex has to be included in that.”
Busy and off to the grind in a minute – but agree with that, and want to add that if you want to get into allowing abortion for some reasons, but not for others, how are you going to handle this then? Drag a woman into a court of law where it can be decided if her reasons for aborting are good enough? Let alone the time factor in getting a case scheduled, costs, etc.
Did see an article a few days ago about the UK – it seems that aborting for gender reasons is illegal. They did some sting operations, but i still think that legally it’s a toughie.
Why the need for the law? It gets down to an argument that if a fetus is diagnosed to have Downs or other disability, are we prepared to say that an abortion is the recommended course of action – furthermore, that if someone isn’t offered that choice based on a misdiagnoses (not lying – an error) has that person been damaged? One can certainly sympathize with the family and the child without agreeing that the doctor’s error caused damages as opposed to life just sometimes deals out unfair hands. To think that they did cause damages is to basically say that abortion is preferable (preferable, mind you, not a reasonable option but preferable). If you don’t agree with that, then it is logical to advocate protecting doctors from such suits.
Do I think some politicians think this might encourage doctors to lie? Possibly, but that would be an ethical breach. If it could be proved I doubt this law protects the doctor from suit or other disciplinary action.
oh, and thanks for the welcome back
I don’t know, Tommy. If I am pregnant and I go to a doctor who claims to be a competent specialist, and he does a test and tells me (negligently) I have a healthy baby, and then I give birth to a severely damaged child, and it turns out that any competent doctor who looked at the same information produced by the test could have told me that my fetus was severely damaged, then I can’t see how the doctor did NOT harm me by his negligence, IF -and it does matter- I would have aborted the fetus had I known it was severely damaged.
In that scenario how has his negligence not harmed me?
I’m in no way saying abortion is preferable in all cases, I’m saying that in MY case, if I had known what he claimed he had the expertise to tell me (and I relied on his assertions, reasonably, and his diagnosis was negligent) I would have aborted. It would have been MY preference, and I have that right to choose.
It wouldn’t be the same case, of course, if the diagnosis was not clear cut, if another competent doctor in my place wouldn’t have been just as fooled… But I was clearly negligent, then that’s my story, not all stories.
If you were an architect and you hired and engineer to design the support system for the roof of a hall you were building, and he did it incompetently, you would sue him. Not because a roof fit for service is ‘preferable’, but because you were harmed by his incompetence. Why should the principle of liability here be any different?
Sorry something dropped out there:
“If HE was clearly negligent, then that’s my story, not all stories”
Well, I suppose it does y’all credit that you try to look at this as if there might be more to it than chapter 19 of Sarah’s They Tried To Make Me Abort Trig saga and maybe chapter 12 of Frothy”s Abortion Is The New Eugenics Oh Yes Oh Yes It Is. But that’s really all there is, so I’ll just check back in when it’s over.
Hi, Dog. Anybody tell you about the new “argue with Madame Max and Pornamy in the same day, buy the site a round” fine yet? It’s brutal. Me, I’d never have figured Bluthner for a single malt guy.
Tommydog: welcome back from me, too.
Back to this insufferable legislation in AZ: if they do not intend to encourage lying to pregnant women, then there is no need for this piece of crap. And there was no need to pass this as a statute, already, in nine other states.
(The article does not say, but I think we can guess which states those are, to a high probability.)
And this also blurs the line as to whom is the “patient”, thanks for that catch Bluthner, it is the same point being hammered upon with these “personhood” initiatives too. Women are to be considered, if pregnant, to be merely the vessels of other persons, from the point of fertilization onwards. So why not lie to them too?
The real point here, regarding the doctor and the living female pregnant patient, is informed consent. We all have a right to whatever information a professional has that pertains to a vital interest of ours, if we are their patient or client. Withholding information is wrong, period, especially if the purpose is to manipulate the choices and decisions of the patient or client.
As an engineer, if I hid vital information from a client then I would be in serious trouble.
I am now working into a position in a building inspection outfit, in which we produce reports for parties who are about to purchase or renovate a building, home or commercial. The sellers never want us to disclose everything we find, of course, but we have to. Honesty is the only defense, the only legitimate path to take.
Failure to catch something that a professional should be expected to catch is negligence. That is not at question. The question is one of damages. In the case of the faulty roof design, assuming it was caught before it collapsed, your damages are limited to repair costs and possibly some other items such as loss of income if it delayed the functional use of the building. You do not get a whole new building.
In the case of a misdiagnosis in a situation for which there is no cure, are there damages? You can only say their are if you consider abortion to be the preferred course of action and that it’s the doctor’s fault they they are now stuck raising a child they would rather not. The whole reason abortion is controversial is that many people consider that murder and fail to see the damages.
Kevin, I don’t believe this law would protect doctors from legal or disciplinary action for lying. Interestingly, the law proposed by the Canadian medical journal cited above would mandate not telling mothers “medically irrelevant” (ie, the child’s sex) until 30 weeks.
I have a cousin who was brain damaged in a difficult birth. She’s not hopeless, but definitely in Forrest Gump territory. She was always a part of life when we all got together. I appreciate more now that it was a trial for my aunt and uncle, but she was always loved. In her case, there probably actually was negligence on the part of the doctor who delivered her.
Tommydog:
I am not advocating euthanasia, I am advocating for informed choices.
Many families choose to take on the burdens, and many find joy in this.
Informed choices.
tommy;
As a practical matter neither to I, but I’m no lawyer. Nor would it provide protection from professional censure for ethics violation.
But you absolutely fail to grasp the nettle;
All this discussion about misdiagnosis and so on is not what this law is about, and is diversionary.
No, what it gets down to is a proposal for a law which would insulate doctors from withholding diagnosis if they felt that it might lead the parent(s) to a decision to abort.
The fact that there are other laws which may well render this one inoperative should it pass is not germane. This article is about the intent, not the likely outcome, and the intent is plain as day.
Again, no, it comes down to whether the WOMAN WHO IS PREGNANT is prepared to say that an abortion is the recommended course of action. The distinction in huge.
In any suit for damages of course she would have to prove that she would not have carried the fetus to term if she had known.
No one here is saying that when severely damaged fetuses are brought to term and become human beings they don’t bring good things into the world. At all. But if a woman wants to make a choice whether or not to take on that kind of burden, and some doctor lies to her because he thinks his duty is to the fetus rather than to the woman- That’s wrong. And should be actionable at law, no holds barred.
Bluthner, thank you. I had noticed that bit of astonishing arrogance, and cluelessness, and wondered if anyone else had.
Bluthner
Most everyone here has concurred that the AZ law probably would not protect any doctor from deliberately lying or at least facing professional disciplinary action. Deliberate lying is an ethical breach in any profession.
However, the suits that have arisen allege negligence not lying. Some examples include failure to notice deformities in an ultrasound image, accidentally extracting and testing tissue sample from the mother rather than the fetus, or even having taken samples from the fetus that did not reflect a Downs chromosome with the defense having been that not all cells had the extra chromosome. I can certainly see the logic for an action if a doctor failed to diagnose a condition that could be treated while the baby was still in the womb, but what about circumstances where there is no curative treatment and the failure to diagnose it is accidental?
As far as I can tell, there have not been wrongful birth suits that allege lying on the part of the doctor to discourage an abortion. Your question has nothing to with “we” or the “woman”, those are irrelevant. The question is have the parents been damaged as a result of the accidental failure to detect an abnormality? You can only conclude they have been damaged if we (plural, as in society, not the mother alone) believe that the preferred course of action is an abortion. Otherwise it is an act of God, a phrase you would commonly find in many contracts as being an event beyond the control of any party and no liability would apply.
Tommy,
I believe you are confounding two very important and completely separate issues.
No one is discussing a case where the failure to detect the problem with the fetus was ‘accidental’ (not a legal term at all, by the way). Either it was negligent or it wasn’t. If it wasn’t negligent, in other words if it did not violate the standard of medical practice and expertise that the woman, or any woman in her place in this time and place, could reasonably expect, then there clearly could be no damages.
But if the diagnosis was negligent, or reckless, or in fact a lie, then the doctor has done the WOMAN a wrong. Not the fetus, the woman. She is the one who collects, not the fetus. Because she is the one who will have suffered.
I’m a trained lawyer, I know very well what an Act of God is in the law. A negligent diagnosis is NEVER an act of God. Ever. Not once.
The malformation of the fetus IS something that might be called, in legal terms, an act of God, but the harm caused to the woman is NOT caused by the malformation of the fetus. It is caused by the doctor’s failure to live up to the standards of medical practice to which he is sworn to uphold. No one is suggesting holding the doctor responsible for the malformation of the fetus. All we are saying is that the doctor is responsible for his own standard of practice, which includes diagnosis.
It would be the same if a doctor failed, negligently, to diagnose a cancer in your body, even though you went to him in time to remove it and be free of disease, and then later it develops into a cancer that cannot be removed or cured. That doctor would be responsible to you for hefty damages. But no one would be holding him responsible for you getting cancer, he would merely be responsible for his negligent failure to diagnose what any competent doctor should have diagnosed.
Bluthner
I didn’t know you were a lawyer. I’ve merely been in too many lawsuits. I think, however, that your difference here is one I alluded to above, failure to diagnose a treatable disease, which is what the cancer situation would be. That could also apply to failure to diagnose, for example, a heart condition in a fetus that could be treated. However, many abnormalities are not treatable. If that circumstance is not diagnosed through negligence (which is often a result of error or accident whether a legal term or not), how is the woman damaged? What is the damage? Is the doctor responsible to contribute to the extra cost of caring for the child? How do we conclude that unless we accept that the preferred course of action is an abortion.
I did not say that negligence was an Act of God, I said that the abnormality in the fetus was as you noted above. And I am not supported negligence, lying, or slacking off on standard protocols. But I have had to spec out what my damages were in a lawsuit, and they usually come down to additional costs incurred and lost profits, with the latter being harder to argue as possibly they were just deferred. In my experience they have to quantifiable and justifiable. Here, what are the parent’s damages?
Tommy,
You continue to posit that ‘we all’ have to decide that abortion is the preferable option. I think you are willfully avoiding the the very idea that what WE fell about the matter makes no difference. It all comes down to what the woman carrying the fetus feels. If SHE is of the opinion that abortion in the case of a damaged fetus is preferable, and the diagnosis is negligently botched, then SHE has been harmed. Nothing to do with what the rest of us feel, think, judge, believe, want, hope for. It’s HER decision. It’s HER body. The fetus is NOT a human life, by any measure except religious fantasy. If she doesn’t share that religious fantasy, then no one has any right to tell her otherwise. She has asked a doctor a question. He has represented himself as a skilled technician. If he screws up the diagnosis, then he has made a mistake that SHE has to pay for. Why on earth shouldn’t he have to make good her loss?
Bluthner. Well, we’re going around in circles. The clear point is that huge numbers of people disagree with abortion rights. While I don’t think many seriously advocate doctors lying, they are not convinced that if an error is made in diagnosis that a human birth, even a deformed one, constitutes an actionable event against the doctor. Nine states have taken steps to make that the case. I’ll hazard a guess that there will be more.
T’dog, the only one going around in circles here is you, I think.
“Huge numbers of people disagree with abortion rights”, but the reality is, Roe vs. Wade is established law in the US and many other nations have even more liberal standards. The clear finding in RvW, confirmed in the Webster case, is the standard of viability outside the woman carrying the fetus. That is the point where the law recognizes that there is a separate interest that deserves protection of the law.
The extremist position that is now being advanced, with active help from the GOP is to define a “person” as initiated at the instant of fertilization. This is an absurdity. There are many bad things that would result from such a standard.
Tommy,
You till insist on saying things like
One Last time: legally, the actionable event is NOT the birth of a deformed child. The actionable event is the negligent diagnosis. You are confounding the two very separate things, and I kinda think now you are doing it on purpose. Even the people who are writing these laws understand that. Which is why the laws state that a negligent diagnosis of a deformed child can no longer be an actionable event. Which is in short, scandalous.
It would be exactly analogous to a situation where a bunch of people in some state took up a new strange religion that worshiped cancer. Cancer is alive, they say, it has a soul of its own from the moment atopsis fails in the first cell. Therefore if you have cancer you have no right to remove it from your body, because we worship it. And then they pass a law that says if a doctor fails to diagnose a cancer in your body, however negligent his failure was, you have no recourse against him.
Bluthner. You’re a lawyer. She is not entitled to damages unless you can convince the jury that she was damaged by the negligent diagnosis. To convince them that she was damaged you have to convince the jury not only that she would have an abortion had she known but that she would have been better off having had the abortion. That requires a level of acceptance on the part of the jury that abortion would have been the preferred outcome. They could readily see it as simply an Act of God and their belief could well be that she should have carried the baby to term whether she knew of the deformity or not.
Tommy,
All you would have to prove is:
A pregnant woman went to a doctor to find out if her fetus was healthy.
That the doctor tested the fetus and then negligently told her it was healthy when any competent doctor would clearly have been able to tell that it wasn’t.
That she relied on the diagnosis and brought the child to term.
That if she had been told the correct diagnosis she would have aborted the damaged fetus.
And that as a result of now having to bring up a damaged child, she will incur costs that she would not have incurred if the child had been healthy.
That’s it. All pretty straightforward points, and not impossibly difficult to prove, or disprove.
The jury doesn’t have to decide that she would have been better off having the abortion. All they have to decide is has she incurred extra costs -and I would include her own pain and suffering- for being burdened with a damaged child (which she never would have brought to term if she had known) above and beyond the the normal burdens and costs of a healthy child.
Just to be clear, again: the fact that the child is damages could be considered and act of God, in legal terms, yes. But the negligent diagnosis was an act of a human being, and one that caused damage. You simply refuse to stop confounding the two completely distinct issues. A court of law would not make that mistake.
I would just like to point out that if the possibility of abortion were not going to be considered, why have the prenatal testing at all? For conditions that CANNOT be repaired in utero?
The fact that prenatal testing is now routine, that almost all pregnant women (who intend to go through with the pregnancy) undergo it, is in itself an acceptance BY SOCIETY as well as by doctors and patients, that abortion is a reasonable option if the tests show serious problems.
That passes the “reasonable man” test in any court.
Bluthner. I follow you sequence up until the end. Is that how a jury would decide? If they held strong moral beliefs against abortion, they could easily decide not. What you are not accepting is that to many people this is murder. You may try to mitigate against that in jury selection, but that will be easier in some parts of the country than others. Many people would not see your argument as being much different than psychiatric testing an 11 year and saying they have a predisposition toward teenage drug use and juvenile delinquency and that a couple of taps to the noggin with a .45 will save the parent a lot of grief and expense. I realize you will say that that is an absurd comparison. What you are fighting is that to a little of people the situations are analogous.
I’ve been through civil litigation through trial and verdict. I’ve given up thinking I know how juries or judges may respond to arguments. The capriciousness and expense of the trial system is why so many business contracts are written to mandate mediation followed by mandatory arbitration.
Tommy,
Every civil suit before a jury runs the (generally very low) risk of jury nullification. I’m betting that the people trying to pass these idiotic laws don’t feel at all confident in juries seeing their point of view. Or else they wouldn’t see a need to try to foist their sectarian views upon the general population.