The Arizona Senate has overwhelmingly passed the so-called “wrongful birth” bill — a piece of legislation that not only strips citizens of core torts protections but is based on a legal mythology of abusive litigation. The law would prevent lawsuits against doctors who withhold information on health problems of a fetus — even withholding the information intentionally.
Sponsor Sen. Nancy Barto (R-Phoenix) explained that doctors have lawsuits if they withhold information that might have led the mother to abort the child. She and others pushed through S 1359, which states:
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 6, article 12, Arizona Revised Statutes, is amended by adding section 12-718, to read:
12-718. Civil liability; wrongful birth, life or conception claims; application
A. A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
B. A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.
C. This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.
Thus, absent an “intentional or grossly negligent act or omission” citizens would be barred. However, this would not presumably include “an act or omission” in withholding information. That leads to the question of a protected “omission” that is alleged to be an exempted “omission.” Thinking of that Zen-like question can lead to insanity. Of course, many would suggest that an intentional omission of a critical birth defect is per se grossly negligent.
Putting aside the circular language, the question is why such legislation is needed. First, there is no record of a flood of wrongful life lawsuits. Pro-life websites speak of these lawsuits as if they are common:
Wrongful birth and wrongful life lawsuits are just plain wrong.
The wrongful birth suit is brought by the parents of a sick or disabled child against a physician that, the parents say, was negligent. The wrongful birth lawsuit does not say that the doctor caused the disease or disability, which would be a valid reason to sue. Instead the wrongful birth lawsuit claims the that doctor failed to inform the parents of the illness or disability of the child and that had they known, they would have aborted their child. In other words, the parents are saying we wish our child was dead. Because he or she is not, the doctor has to pay.
The parents often use the excuse that they love their child; they are simply suing to acquire funds to care for their sick or disabled offspring. But to get those funds they have to insist that, had they known, they would have killed that very same child.
The few cases that are brought on this basis face considerable challenges with a jury, which (like most people) are not inclined to view such claims favorably. One successful case was based in Oregon. Ariel and Deborah Levy had gone to their doctors for testing for birth defects, including Down syndrome. The jury found five instances of negligence on behalf of Legacy Health’s negligence, including an assurance to the parents that the baby had a normal chromosomal profile. The baby in fact showed indications of Down syndrome and was born with the defect. The couple was awarded $2.9 million on Friday for the care of the baby.
While these lawsuits are called wrongful birth or wrongful life, the terms carry a desired pejorative meaning. In reality, these are fairly straight-forward torts claims. While some may object to the notion of abortion or aborting due to detection of defects, it is a lawful practice. These doctors promised to perform tests to determine defects and did so with repeated acts of negligence. Negligent acts generally have both harm and damages. A similar case in Florida in 2011 resulted in an award of $4.5 million in a wrongful birth lawsuit when a boy was born with one leg and no arms.
Nine states — Pennsylvania, North Dakota, South Dakota, Utah, Idaho, Indiana, Missouri, Minnesota and North Carolina — currently have such laws. In Pennsylvania, the law was upheld on appeal. The Pennsylvania law in question was worded slightly differently:
There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L.1109, No.261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L.457, No.112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.
(b) Wrongful life. –There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
(c) Conception. –A person shall be deemed to be conceived at the moment of fertilization.
The trial court dismissed the action under the statute and, after the dismissal was affirmed by the Pennsylvania Supreme Court, the United States Supreme Court denied review. See generally Jenkins v. Hospital of the Medical College of Pennsylvania, 445 Pa. Super. 427; 665 A.2d 1198 (1995); Jenkins v. Hospital of the Medical College of Pennsylvania 634 A.2d 1099, 1103 (1993)
While states generally have authority to curtail tort liability, most legislators have the wisdom to allow the common law to define and refine such causes of action. The greatest defense for these companies and doctors is that they acted reasonably and did not offer negligent services.
The bill passed 20-9 in the Arizona Senate. It will now go to the House, which will hopefully show greater consideration for the implications of such legislation.
Source: Capitol Times
F-or
U-surping
C-ardinal
K-nowledge
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just another door into the captains chair….and.another way to hijack what rightfully belongs to a woman (or any other human being)…the ownership of our own bodies.
I’ll say it now…terrorists.
Regarding the Pennsylvania law quoted in the body of the Professor’s article:
“(c) Conception. –A person shall be deemed to be conceived at the moment of fertilization.”
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Since this subsection is included in a law specific to “wrongful birth’ is it not specific to only that?
Once language like this is introduced into certain laws may it be used as a precedent to expand vague definitions in other laws within the state? A year ago I’d have said ‘no way’ but I’m not at all sure that this kind of language, even when narrowly framed by the statute it’s contained in, isn’t the camel’s nose under the tent-flap.
Mespo at 4:00pm: “I’m sure I must be missing something but Section D seems fairly straight-forward. On its face it states that any “intentional or grossly negligent act or omission…” is not immune from damages if the wrongful birth or wrongful life claim is so premised. This would seemingly limit only suits based on negligent acts or omissions.”
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This is how I read the law also. I am aware that certain limitations for recovery exist in the law covering other professions regarding incompetence- one is not liable just because one is not as proficient as might be desired.
This bill seems to let doctors that are incompetent (rather than malicious or deluded by their religious beliefs) off the hook entirely regarding damages for these specific kinds of incompetence though. I would think that these cases are covered under standard malpractice insurance and torts. Is this a boon for insurance companies? is this just another corporate gift hiding behind a culture-war label? Follow the money.
Not that the people immediately behind these horrible laws don’t believe in what they are doing, but the people behind THEM, well that’s another matter. Smoke and mirrors, folks, smoke and mirrors. Keep us fighting over these issues (and really, the left has little choice b/c the option is turning us into a theocratic nightmare) and meanwhile the two main parties help the moneyed elite rob us all blind. Again,the left sees this and unfortunately cannot help to be pulled in b/c the alternative is really, really bad and the right refuses to open their eyes. They like being led by their noses. After all, it’s ok if we make Hell of Earth, cos they’re all getting into Heaven.
So to use the reason some use, if they had a sesshore of size, then it would attract Democratic voters. Soon of course the demographics (latino) will change and that’s why the the racist immigration bill.
Plus one more statesrights issue to distract/attract the voters.
It is hard to argue that AZ is purple….30 legislative districts which are dominated by Republicans.
Stupid befits what part of society?
Well frankly who cares—this is so silly for a number of reasons but as a practical legal reality— it unconstitutionally abrogates common law causes of action in violation of Ariz. Const. art. 18, § 6.
So it doesn’t matter all that much if it passes; under the Ariz. Const. folks can sue and will win either way.
http://www.azleg.gov/FormatDocument.asp?inDoc=/const/18/6.htm
Of course, the Republicans don’t need joke writers. They are a joke.
A bad one.
Oro Lee,
it on cruise control? Did you touch the brake in AZ?
Are you going to buy a new dog with a larger bladder?
What did the trooper say when he whizzed by you when you were doing 40?
And did the blue haired ladies stick out their tongues and curse you?
My questions show how long it is since I was in a usa car.
My last drive was on highway one from LA to Monterey. The only straight stretch was between Santa Barbara and Hearst Castle.
That was a very early fuel-efficient model, ca 1990.
When you floored it, it replied “are you sure”??? and put on the brakes and started the accident blinkers.
More:
Oro means worry in Swedish.
And almost wrote Oreo……of course you’ve heard that before.
Not to mention all the demeaning names I’ve had as a child. Smile.
And if you other people don’t like my humor, you can cast stones.
Just remember what Jesus said about that:
He was a great speaker, such wisdom. And no speechwriters or text machines (?). But then he was divine, says the church, 300 years later.
And a little divinity goes a long way—–even if it’s shared with two others—not to mention Mary being glorified although she went with his brothers to take him home as he was crazy and dishonoring the family. That’s what is in the Bible. So must the God’s truth. How God learned to write, escapes me.
Am I blasphemous? How is that defined by the Supreme Court?
NO, am warming up for Hitchens, or what’s his name. Wow, if I only could be reincarnated as a joke writer. Think of all the decadence on Sodom on the Sunset Blvd. Not to mention the Republican convention.
BFN
My best day so far this year —
Last month I topped off the tank of a fuel-efficient rental car in Blythe, California and did not refill until Lordsburg, New Mexico. The only stop was to let the dog make a deposit, which besides exhaust fumes is all we left in Arizona.
Mike A said:
….”There is so much insanity out there that I am increasingly finding myself at a loss for words to respond.”
Consider this friends: At least it brought the snakes out where we can judge their size, number, and venom. Unfortunately, the problem remains to find an anti-venom and a good snake stick, you know, with the crooked end.
Or better yet, a bayonet.
rcampbell,
got a friend in tucson who’d like to cast darts or shoot shotguns at suitable paper targets (note NSA, paper targets with GOP on, not faces)
You could trade venomous comments over a glass of wine, or whatever.
courage, you are not alone.
Mike A,
Your insight into the importance of names and labeling is great.
I’ve often wondered why the dems are so deficient that way.
But the NDAA of course was a Republican attempt to hide the importance behind a boring name. IMHO Just like AMU (?).
Mike S.
Pardon my late arrival, but´…..
“—-Enough, is enough, is enough. For too long……. ”
Yes, emphatically yes—-which you don’t need to hear from me.
But where and how.? The Repugsnants are playing a game of “keep-away” with the dems or pro-choicers. They drive the headline chase with their coordinated feeds.
Their headline governors are doing fine. The local yokel technique works fine on the national scene.
Use the dem governors, like NC lady dem gov.
Don’t know her pro-choice position, but if she can’t then someone else can.
Other suggestions anybody?
rcampbell,
“—-and now to an almost daily offering of an unending stream of outrageous legislation usually of questionable Constitutionality and an all out attack against women. This is political suicide for the GOP except among the most rabid John Bircher teabagging right wing radical lunatics.”
They have ALEC. The dems need a SMARTALEC. (old joke, sorry)
Mike A:
“There is so much insanity out there that I am increasingly finding myself at a loss for words to respond.”
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Come on, MIke A. If not for the insanity of our client’s adversaries (and occasionally our clients), we’d be out of business. Fighting dragons is what we do – especially, and most gratifyingly, the insane ones. These are the times of our professional lives.
Do you really want a lawyer’s heaven where everyone acts rationally, justly, and compassionately? No good fights or fights for the good there!
D. This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.
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I’m sure I must be missing something but Section D seems fairly straight-forward. On its face it states that any “intentional or grossly negligent act or omission…” is not immune from damages if the wrongful birth or wrongful life claim is so premised. This would seemingly limit only suits based on negligent acts or omissions. A physician who intentionally or grossly negligently (think Tay-Sachs disease here) fails to advise a mother would still seem liable to me under those accepted remaining legal theories.
Professor Turley reasons that “However, this would not presumably include ‘an act or omission’ in withholding information. That leads to the question of a protected ‘omission’ that is alleged to be an exempted ‘omission.'” But how does that square with the physician’s fiduciary duty to fully advise his client of her condition and choices? Could he or she really avoid liability by claiming the statute relived him of his ethical obligations as well as his legal ones?
AMA Ethics Opinion 10.015 provides:
The relationship between patient and physician is based on trust and gives rise to physicians’ ethical obligations to place patients’ welfare above their own self-interest and above obligations to other groups, and to advocate for their patients’ welfare.
AMA Ethics Opinion 8.082 engrafts onto that trust relationship the obligation not to withhold pertinent medical information:
Withholding medical information from patients without their knowledge or consent is ethically unacceptable.
In a 1995 case the Hawaii Supreme Court (Carr v Strode et al, 1995)opined that:
The physician’s duty to disclose in an informed consent case… is not what the physician believes his or her patient needs to hear. … The focus should be on what a reasonable person objectively needs to hear from his or her physician to allow the patient to make an informed and intelligent decision regarding medical treatment.
This would seem to require objective and complete information about steps to take to terminate the pregnancy under the doctrine of informed consent. Thus intentionally failing to provide this information or doing the same through gross negligence would subject the offending physician to damages based on violation of the duties articulated above.
Why Employers Should Want Their Workers Using Contraception
Bryce Covert on March 14, 2012
http://www.thenation.com/blog/166800/why-employers-should-want-their-workers-using-contraception
Excerpt;
Arizona, seemingly determined to take bad ideas and make them worse, is moving ahead with a bill that both makes explicit and codifies into law the current fights over contraception coverage. Arizona House Bill 2625, authored by Republican Debbie Lesko, allows employers with religious or moral objections to contraception to deny insurance coverage of it to their employees. This is in response to the Affordable Care Act’s provision that insurance be required to cover contraception without a co-pay; the Obama administration already made a compromise that should protect religious employees. Yet conservatives have had a hard time letting it go.
The interesting thing about Arizona’s bill, however, is that it does have an exception built in for women who don’t use birth control for sex. If it is for other medical reasons, employers are required to cover it. The tricky question is, How would anyone know the difference? The bill takes care of that conundrum by allowing employers to ask their workers for proof that their baby pills are not being used during baby making time. Some are speculating that this opens up the door to employers firing their employees because they’re on the pill.
Here’s the crazy thing: employers should want their employees to use birth control for reproductive purposes. As Annie Lowrey recently wrote, “A number of studies have shown that by allowing women to delay marriage and childbearing, the pill has also helped them invest in their skills and education, join the work force in greater numbers, move into higher-status and better-paying professions and make more money over all.”
She points to an influential study by Claudia Goldin and Lawrence F. Katz, which shows that the pill encouraged women to pursue careers by ensuring that their investments in education and training weren’t disrupted by unwanted pregnancy, as well as changing the marriage market so that career women could delay and be more attractive mates. “Because up-front, time-intensive career investments are difficult for women with child care responsibilities, the pill encouraged women’s careers by virtually eliminating the risk of pregnancy,” the authors write. On top of this, the pill importantly decoupled sex and marriage. That meant that the cost of delaying marriage went down, which made women with good career prospects more attractive as potential wives. Take that, Rick Santorum.
Kinda like the police being legal to lie to a person. Now my GYN can too?! …I sure do not feel like a full citizen of the US.
Just because I feel paranoid, does not mean ‘they’ are not out to get me.
Who lives in Arizona?! Who voted for these people. Why can I not stop laughing?! HELP!