Novelist Explores "Wrongful Birth" Medical Malpractice

Author Jodi Picoult is a prolific novelist whose works frequently explore the hefty legal, moral, and ethical dilemmas surrounding controversial subjects including capital punishment, euthanasia, right-to-die, and stem cell research, among others.  In her 2009 novel Handle with Care, Picoult takes a closer look at the highly controversial and emotionally charged topic of "wrongful birth" lawsuits. At the heart of the story is the O'Keefe family, struggling with the emotional and financial difficulty of raising their daughter Willow, who was born with a rare condition known as Type III osteogenesis imperfecta, or OI.  This disease, often known as "brittle bones syndrome," means that Willow's bones are exceedingly fragile and can be broken by something as simple as her lifting a jug of milk.  At the age of five, Willow had already suffered nearly sixty broken bones during her lifetime--at least seven of those occurring in utero.  When the family begins to struggle with debt in paying for Willow's medical needs and adaptive therapies that extend beyond what insurance is willing to pay, Charlotte O'Keefe, the girl's mother, sees that recovery from a wrongful birth lawsuit may enable the family to pay for the care Willow needs. What is a wrongful birth lawsuit?  In essence, it is a medical malpractice lawsuit that alleges that a doctor negligently failed to diagnose a problem or failed to inform the parents of a potential problem discovered during proper prenatal care.  In such a case, the parents allege that, given the full information regarding their child's resulting disabilities and potential quality of life, they would have chosen to terminate the pregnancy.  In the novel, Charlotte O'Keefe continues to assert that the lawsuit is not about her right to terminate a pregnancy, but about her obstetrician's failure to diagnose a problem which was evident in an early ultrasound.  Her medical malpractice attorney argues that, while Charlotte may or may not have ultimately terminated the pregnancy, the doctor's negligence in properly reading an ultrasound and identifying indicators of abnormality deprived her client of the choice. Wrongful birth, as it is often inextricably connected with pro-life and pro-choice debates, is a highly controversial subject, and wrongful birth lawsuits are not accepted in every state.   Oklahoma is one of twelve states that specifically prohibits wrongful birth lawsuits.  In fact, Oklahoma law prohibits lawsuits against an obstetrician who knowingly withholds information about a fetus's abnormalities if he or she feels it would lead to the parents' termination of the pregnancy.  However, the Oklahoma Supreme Court last summer granted a couple the right to seek damages from a wrongful birth lawsuit resulting from a birth that occurred in 2009, prior to the enactment of the law protecting physicians from such suits.   According to that lawsuit, Patricia and Brian Shull would have terminated a pregnancy had they been informed that their son suffered a severe viral infection that rendered him profoundly disabled and "helpless" at birth.  In a 5-3 ruling, the Oklahoma Supreme Court stated that the Shulls could proceed with the suit, but could recover "only for extraordinary expenses, not the normal and foreseeable costs of raising a normal, healthy child, for the period of time of the child's life expectancy or until the child reaches the age of maturity (18 years old), whichever is the shorter period."  The Court also ruled that the Shulls could not recover damages for emotional distress because the injury “occurred without human fault during development of the fetus.” Though wrongful birth lawsuits are prohibited under Oklahoma law, families suffering as a result of medical malpractice have certain remedies available to them.  An Oklahoma medical malpractice lawyer can help those who incur injury or loss as a result of physician error, failure to diagnose, birth injury, surgical error, or other acts of medical negligence.  Costs associated with medical care and rehabilitative therapies following a medical malpractice injury can reach astronomical heights.  By holding accountable those whose medical negligence resulted in your injury or the wrongful death of your loved one, you can obtain financial compensation.