Wrongful Life Lawsuit

This week the Mom Blogs posted a topic for comment and discussion. Here's the Associated Press Story:

Woman Sues Doctor for Child-Rearing Costs After Failed
Abortion
Wednesday, March 07, 2007

BOSTON — A woman who had an abortion but still gave birth has filed a lawsuit against two doctors and a family planning organization seeking the costs of raising her child.

The complaint was filed by Jennifer Raper, 45, last week in Suffolk Superior Court and still must be screened by a special panel before it can proceed to trial.

Raper claimed in the suit that she found out she was pregnant in March 2004 and decided to have an abortion for financial reasons, The Boston Globe reported in its Wednesday editions.

Dr. Allison Bryant, a physician working for Planned Parenthood at the time, performed the procedure on April 9, 2004, but it “was not done properly, causing the plaintiff to remain pregnant,” according to the complaint.

Raper then went to see Dr. Benjamin Eleonu at Boston Medical Center in July 2004, and he failed to detect the pregnancy even though she was 20 weeks pregnant at the time, the lawsuit alleges.

It was only when Raper went to the New England Medical Center emergency room for treatment of pelvic pain in late September that year that she found out she was pregnant, the suit said.

She gave birth to a daughter on Dec. 7, 2004.

Raper and her lawyer, Barry C. Reed Jr., refused comment when contacted by the newspaper, and a spokeswoman for Planned Parenthood said the organization does not comment on pending litigation.

Massachusetts’ high court ruled in 1990 that parents can sue physicians for child-rearing expenses, but limited those claims to cases in which children require extraordinary expenses because of medical problems, medical malpractice lawyer Andrew C. Meyer Jr. said.

Raper’s suit has no mentions of medical problems involving her now 2-year-old daughter.

I think I'll address the article from two perspectives. Perspective One will be my reaction as a mother. And a mother who benefitted (twice!) from the decision of other women to place their children for adoption. Perspective Two will be my reaction as a law student. And a law student who has actually done a tiny bit of research on wrongful life cases (at least in the area of failed contraception). Feel free to skip one perspective and read just the other. Feel free to read them both. Feel especially free to leave a comment about what you think. Just be nice.

Perspective One: Mom Who Has Adopted
Well, the obvious reaction is: Why not just place the child for adoption?

Sounds easy, doesn't it? Maybe too easy . . .

Ms. Raper (kind of an unfortunate name, given the nature of the law suit) may have simply been emotionally unwilling or unable to walk away from the child. But that doesn't mean she has the financial resources to support her daughter.

My guess is that she had a moral reason not to opt for the abortion when she discovered she was still pregnant two or three months before the baby was born. And I certainly can't say I disagree with that reasoning. I've never been unexpectedly pregnant. Or pregnant at all, really. But my guess, based on what I hear other women (who have experienced pregnancy) say is that at some point, that baby is a real person to you. That's not to say the baby is or is not real person all along (I'm not commenting on whether it's moral to opt for abortion in the first place). It's just to say that there comes a time for many women that they somewhat suddenly perceive the child they are carrying as a child. And not as a mass of cells or a fetus or whatever other term you'd use. When she found out she was still pregnant, it probably was far enough along that to her it was a child, making abortion no longer a (moral) option. And since the lawsuit doesn't tell us the date of her September visit to the doctor, we don't know if it was still in the time frame in which abortion is legal in Massachusetts anyway. Again, just my guess.

So, for the sake of argument, let's assume she could not legally get an abortion when she discovered her pregnancy in September. This brings us back to the first reaction. Why not place the child for adoption? Well, although adoption is a great plan, it's not a simple road to follow. And my guess is that people who cavalierly throw out that choice-- just adopt-- are people who haven't been in a position in which they've needed to consider that option.

Adoption is hard. The decision to walk away from a child-- a child you've carried and cared for (at least for a few months) is difficult. And very final. Not unlike abortion I realize-- but different because you always know that child is out there. You always wonder how she is. If she's well cared for. If she knows your decision was a decision of love. Perhaps Ms. Raper knew she didn't have the emotional fortitude to walk away from her daughter.

Oh, but what about open adoption, you wonder? Is that any easier? Sure, you have an opportunity to hear about your child. To see photos and to visit face to face. To know she is safe and healthy. To know she is loved. To know the difficult decision was based on her best interests. But it means you say good bye over and over and over again. And it means taking a risk that the family you choose for your child won't follow through with their promises-- that they will lose contact or (worse) cut you off, leaving you to wonder how well they are caring for her at all. Being willing to take that risk, and being able to say good-bye repeatedly are not easy. That doesn't mean people shouldn't do it, obviously. But Ms. Raper, like all of us, is entitled to choose to raise her daughter. And really, who can fault her for doing so?

If financial stability were the only reason Ms. Raper considered abortion in the first place, it leads me to believe that her decision to raise her daughter makes sense-- it wasn't that she didn't love her and want to keep her. It was that she worried about the financial costs of caring for her. And my guess is that once she held that little girl in her arms, she realized she would move heaven and earth to provide for her child. And so here she is, trying to do just that.

Whether or not she should have opted to place her child for adoption, she didn't. She chose to carry the baby to term. She chose to raise the child. So now what? That brings me to:

Perspective Two: Law Student
The news article explains that a person cannot sue physicians for child-rearing expenses unless there are extraordinary medical expenses. There is no indication that Ms. Raper's daughter has any problems. Which means there's every indication this case will be kicked out of court before it even really gets going.

Still, it's an interesting question. Someone on the Mom Blogs wondered how far a ruling like this would go-- if you could sue a doctor for medical malpractice for not aborting a fetus, then would it eventually extend to filing a lawsuit for failed contraception? The short answer is no. It never will. Here's why:

If you use birth control and you read the instructions, the only 100% effective way of preventing pregnancy is abstinence. The pill is not 100%. Condoms are not 100%. The ring is not 100%. Neither is the patch or the shot. And even used in combination, nothing prevents pregnancy-- even when you use the items as instructed. That means as consumers, we know and understand that when we use contraceptives, there is a chance they will not work as intended. We are assuming the risk.

Going to the doctor is different, though. When we go to the doctor to have a medical procedure, he tells us the statistics. The odds of developing a complication. The side effects of anesthesia. The chances of death on the operating table. These risks are outlined for us. And if there is a chance that the procedure won't work even when performed correctly, he tells us that, too. Now, I'm not a doctor (obviously), but it seems to me that if an abortion is performed properly-- even based just on the standard of what the reasonable, typical standard of care in the medical profession is-- probably there is no fetus growing inside you at the end of an abortion. That's what makes this different. If contraceptives are used correctly, they might not work but they might not. If an abortion is performed correctly, it will work. Apples and oranges.

There are reasons not to provide compensation under a wrongful life claim-- even for medical malpractice. Like how this will affect Ms. Raper's daughter for instance. How will she feel knowing she is alive because of a botched abortion? How will she feel knowing that her mom blames the doctor for making her strapping her financially? Are these reasonable questions to ask? Perhaps not. But I'd venture to guess that they will come up-- after all, lawsuits are public. And what if the doctor really didn't do anything wrong? What if a certain percentage of the time, the procedure just doesn't work as intended? Do we discourage doctors from performing the procedure for fear they will be sued by a person who had other options? (And perhaps we do want to discourage doctors from performing the procedure-- but that is an entirely different legal question. One which this post doesn't address.)

In at least one case, a woman did sue a pharmacist for child raising experiences. That was an instance where he switched her pill prescription for some other drug. She thought she was protected, and she wasn't. She sued him for negligence and won. Interesting because even if he had filled the prescription correctly, she might still have become pregnant. So it was an unusual outcome. But his clear negligence outweighed the statistics. And perhaps that would win the day here, too.

For the sake of argument, let's say Ms. Raper isn't responsible for the expenses of raising her daughter because she didn't want the child in the first place. Let's say the doctor is at fault for negligence. And let's even say that Ms. Raper cannot afford to provide her daughter with some essentials. Then what? Do we remove the child from her custody? The courts wouldn't do that in any other case, would they? Wouldn't the state take action to try and keep the family together? So should the State pay to raise this child? Or should the doctor who ensured its life? Or should Ms. Raper be forced to figure it out on her own-- after all, she's the one who became pregnant in the first place.

I find each of these options totally dissatisfying. Why should the State pay when the child could be placed with a loving family who will adopt the child as its own? Why should the doctor pay when she might not have done anything wrong? And even if she did, isn't that the risk you undertake when you opt for abortion? But why should Ms. Raper pay? She actively tried to prevent the expense. There's no easy answer here.

My guess is that it doesn't matter from a legal standpoint because caselaw says the doctor won't be liable for malpractice in a wrongful life case unless there are extraordinary expenses. And here there aren't.

So what can we learn from all of this? Make sure your doctor is qualified? Practice abstinence? Never trust anyone?

I don't know what the right answer is. But I can't blame her for choosing to keep her child and raise her. Regardless of the amount of love and joy Ms. Raper will receive from being a parent-- and despite my (personal) disappointment that she didn't place her daughter with a financially stable family who desperately sought a new family member-- raising a child sure is expensive. And while we may think none of those three parties (the State, the doctor, the mother) should pay, we can all agree on one thing: the child should not bare the expenses. Literally or emotionally. I sure hope she comes through this alright.