Attorney Charles Brown Weighs in on Contentious “Wrongful Birth” Bills

Two bills pending in the Texas legislature could have a profound impact on expectant parents and families planning to conceive.  Medical malpractice attorney Charles Brown, managing partner at MedMalFirm.com, weighed in on the contentious “wrongful birth” bills in an article published in The Austin Chronicle suggesting that the bills could also have a profound impact on the way the civil justice system works in Texas communities.

Senate Bill 25

Senate Bill 25 seeks to eliminate “wrongful birth” as a legal cause of action in Texas medical malpractice law.  This means that parents would be prohibited from filing a lawsuit against a physician who withheld information about fetal abnormalities.  Physicians would be allowed to use their discretion when advising expectant parents about fetal abnormalities, including withholding the fact that abnormalities exist in order to prevent abortion.

SB 25 was sponsored by Sen. Brandon Creighton, R-Conroe, who said this about the bill: “Senate Bill 25 would reduce pressure on physicians to advocate for abortion.  It is unacceptable that doctors can be penalized for embracing the sanctity of life.”  Supporters of the bill argue that the medical standards of care would remain intact, but critics disagree.

In response to such support for the bill, many Texan’s have come forward testifying to their own experiences with fetal abnormalities and the impact their physicians had on the outcome.  One woman testified in favor of her physician, who informed her at 20 weeks gestation that their daughter had only a five percent chance of survival.  Given the options, she and her husband decided the best course of action was to terminate the pregnancy.  She further testified that she could not imagine what would have happened to her family if her physician had not informed her and given her the options.

Other families testified that they were not informed about abnormalities and risks in time to pursue experimental therapies or other options, and ultimately, their infants did not survive.  Many of these women are coming forward questioning a system where a physician that knows about the complications decides to lie or hide it, all the while smiling and telling the parents that all is well.  What happens then?

Under current medical malpractice law, families can file wrongful birth lawsuits against physicians who negligently fail to perform prenatal testing or identify at-risk mothers, who misinterpret tests, or who fail to inform expectant parents about the results and offer appropriate guidance.  SB 25 would protect physicians from such lawsuits and prohibit families from recovering damages.

Impact on the Courts

SB 25 has been said to exaggerate the cause of action as a serious problem in Texas.  The truth is, wrongful birth as a cause of action is a relatively rare occurrence in Texas courts, but it does happen.  In addition to its implications for patients/parents, SB 25 is also feared to have an impact on the courts.  Attorney Charles Brown had this to say about the impact of SB 25 on the courts:

“It is not the place of whichever party is in power at the Legislature to micromanage juries and the courts for political reasons.  It essentially neuters the civil justice system.  I think it’s wrong and contrary to the basic idea of separation of powers.  I understand why some conservatives would like to see this bill pass, but they need to understand the effect of having Austin tell their local courts what they can and cannot do.  If conservatives really believe in government at the most local level then they should oppose this bill on that basis alone.  Nothing is more local than the 12 people on a jury.”

It should never be left to the discretion of a politician or physician to determine whether a patient should be fully informed about his or her healthcare.  There is further the question of whether legislation like SB 25 is a violation of First Amendment rights when the state advocates for physicians not adequately informing patients and discussing options.

Making the Right Choice

In terms of SB 25, it appears to be a matter of choice.  As Attorney Charles Brown noted, legislation like this intrudes on the court and impacts civil rights.  There are many attorneys, advocates, and families affected by a variety of pregnancy and birth-related trauma that have weighed in on SB 25.  Many of these parties feel the same way – that SB 25 is a veiled attempt to protect physicians and allow them to impart their personal or religious views on their patients.  Anti-abortion physicians may choose not to inform parents about abnormalities in order to avoid early termination, even if that is the best medical decision for the mother and child.

Critics of SB 25 argue that parents should have all the facts and know what options exist – be it attempting to carry an abnormal pregnancy to term, experimental procedures, or termination of the pregnancy.  No parent should have to experience the loss of a child, stillbirth, or life-altering complications of pregnancy without knowing the facts and having options.

Getting Help with Wrongful Birth Related Claims

Medical malpractice, and certainly wrongful birth, is a complex area of the law.  Anyone with questions about medical malpractice or negligence, wrongful birth, or birth injuries should contact an attorney for legal guidance.  At MedMalFirm.com, we offer comprehensive, compassionate guidance for our clients.  We work hard to be certain that every client has the information they need to make the best decisions for themselves and their loved ones.  Contact us today to request a free consultation by filling out our online form.