Couple wins Wrongful Birth Lawsuit

What is a wrongful birth?  Is this malpractice, or overly litigious parents.  Read the original here....

Jury Awards West Palm Beach Parents Of Child Born With No Arms, One Leg $4.5 Million
By Jane Musgrave
Palm Beach Post Staff Writer
Updated: 1:06 p.m. Saturday, Sept. 10, 2011
Posted: 12:28 p.m. Friday, Sept. 9, 2011

WEST PALM BEACH — After nearly nine hours of deliberation over two days, a Palm Beach County jury today awarded a West Palm Beach couple $4.5 million to care for their son who was born with no arms and one leg.

With the heartbreaking image of the small boy etched into their minds, jurors found Palm Beach Gardens obstetrician Dr. Marie Morel, OB/GYN Specialists of the Palm Beaches and Perinatal Specialists of the Palm Beaches responsible for not detecting the boy's horrific disabilities before he was born. The amount they awarded is half of the $9 million Ana Mejia and Rodolfo Santana were seeking for their son, Bryan.

The teary-eyed couple said they were overjoyed by the verdict. "I have no words," Mejia said in her native Spanish. Both agreed the award will make a huge difference in their son's life.

The jury of four men and two women found Morel 85 percent and an ultrasound technician 15 percent negligent for failing to properly read sonograms that would have alerted the couple of their son's disabilities before he was born in October 2008.

Attorney Mark Rosen, who represents Morel and the clinics, said they would appeal.

During a roughly two-week-long trial that ended Wednesday, Mejia and Santana claimed they would have never have brought Bryan into the world had they known about his horrific disabilities. Had Morel and technicians at OB/GYN Specialists of the Palm Beaches and Perinatal Specialists of the Palm Beaches properly administered two ultrasounds and seen he was missing three limbs, the West Palm Beach couple said they would have terminated the pregnancy.

Instead, they went to the hospital in October 2008, believing they would have a healthy son.

"They went from the heights of joyous expectations to the depths of despair," their attorney Robert Bergin told the jury during closing arguments Wednesday.

While the jury is being asked to award the couple money for their pain, he said they don't want any money for their suffering.

"Ana and Rodolfo Santana know their mental anguish and their emotions are not important," Bergin said. "The only thing that will help make up for their mental anguish is to know Bryan's life plan is fully funded."

The plan, that would cost $9 million, will cover prostheses, wheelchairs, operations, attendants and other needs he will have during his estimated 70-year life, Bergin said. "It will give piece of mind to these people that no matter what happens to them, their son will be all right," said Jason Weisser, who also represents the couple.

Without discounting Bryan's enormous needs, attorneys representing Morel and the ultrasound clinics insisted their clients weren't negligent.

"There is nothing Dr. Morel wants more than for Bryan Santana to have a happy, healthy life," said attorney Mark Rosen. "That doesn't mean they're responsible. Is it fair to blame physicians for acts of nature?"

He argued that the couple rejected amniocentesis, which might have revealed the abnormalities. The couple rejected it because they were told that there was a 1 in 500 chance that removing amniotic fluid for testing would cause a miscarriage.

Mejia testified that a genetic counselor she saw after an ultrasound detected a possibility Bryan would be born with Down's Syndrome told her there was a 99.9 percent chance he wouldn't have the form of mental retardation. Rather than needlessly risk losing the child, she and her husband decided not to have amniocentesis.

In doing so, Rosen said, the couple decided that they would rather give birth to a child that might have a physical or mental disability rather than risk losing it. That, he said, is contrary to their claims that they would have aborted their unborn son.

"No one is happy about what happened to Bryan Santana but Ana Mejia made the decision in 2008," he said.

Weisser countered that the couple was told the risk of Down's Syndrome was slight. While other abnormalities might have been detected by amniocentesis, the prospect of having a child who was missing three limbs was never discussed with the couple.

"There's not one shred of evidence that they were ever told there was an issue with one of his limbs, let along three," he said.

In fact, according to the second ultrasound, all four limbs were intact. "That, ladies and gentleman is impossible," Weisser said. "It didn't happen."