Re: Oklahoma doctors can lie about birth defects if an abortion might occur

**snooggums** · 04-30-2010, 05:48 PM

No, it means you can't sue period if they make a decision based on personal ethics instead of the medical ethics their practice is based on. It doesn't stop their license from being revoked, but you wouldn't ever know they unless they admitted to it or another medical person confirmed that the person was aware.

No it doesn't say they should, but that is irrelevant. The fact that it allows for deception by a doctor is the problem.

Originally Posted by Spyder228

I just reread the quote and this is what I took away from it:

Basically your doctor tells you that your baby is perfectly healthy (knowing full well that the kid will have some sort of birth defect be it down syndrome, or some physical ailment) so you carry the child to term. After birth you find out that the doctor knew that your baby was going to have these problems and because he thought you would terminate the pregnancy he kept it from you. Now you're stuck because you can't sue the doctor (written into the law) for the massive financial drain you now face raising a child with a developmental disorder, or the horrible emotional agony you're put through when your baby dies days or weeks later because of some physical ailment.

It also means you can't sue the doctor if the baby has a medical defect that puts the mother's life in danger if carried to term and then the mother dies.

**Kerostasis** · 04-30-2010, 05:55 PM

Originally Posted by snooggums

It also means you can't sue the doctor if the baby has a medical defect that puts the mother's life in danger if carried to term and then the mother dies.

Actually, the next section specifically addresses that point:

Originally Posted by Oklahoma Law

D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred...[etc]

The law is very specific. It ONLY prevents lawsuits on the SPECIFIC claim that you would have obtained an abortion, and now you have a live child instead. Any other claims are still valid.

**seg[TDev]** · 04-30-2010, 06:10 PM

Regardless, this whole discussion makes me sick to my stomach. The fact that someone would get an abortion because a special needs child would be a burden makes me sick. I would say Helen Keller wouldn't of had a chance in hell today, but I guess she would have been lucky because she didn't go deaf and blind until 19 months of age.

**snooggums** · 04-30-2010, 06:20 PM

Originally Posted by Kerostasis

The law is very specific. It ONLY prevents lawsuits on the SPECIFIC claim that you would have obtained an abortion, and now you have a live child instead. Any other claims are still valid.

Apparently I have trouble with that section because of all the double negatives, I read that as not allowing a lawsuit in the case of maternal death. Quote (in full) and in my words:

D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred, or handicap, disease, or disability of an individual prior to birth would have been prevented, cured, or ameliorated in a manner that preserved the health and life of the affected individual.

Take 2, man that thing is confusing: You can sue if death or injury would not have occurred knowing that information. You can also sue if handicap, disease or disability of the mother(?) prior to birth would have been prevented, cured or ameliorated in a manner that preserved the health and life of the mother(?).

So, you can't sue for handicap, disease or disability caused by going through with the birth itself or is that covered by injury? So you can't sue for disabilities that are a result of giving birth to a child with a terminal illnes, such as depression from losing the child 5 days after birth?

I understand jargon being necessary in laws but why all the double negatives and crappy sentence structure?

**Kerostasis** · 04-30-2010, 06:31 PM

In theory that entire section was un-necessary. They could have stopped at section C, and the law would mean effectively the same thing. But people have a tendancy to stretch laws to cover things they weren't intended to cover, both in news reporting and in legal practice, so section D just clarifies that they DONT intend this law to be stretched in that direction. It's all redundant information, but it's just in case you weren't sure after reading sections A through C.

Any death or injury to mother or child is not impacted. The only cause of action that is impacted is the cause that "this child would have been dead, but now he's alive, so I'm suing you".

Edit: The double negative is there because the law isn't actually CHANGING anything with that section, it's just listing things which AREN'T changed. Thus, "this law does not stop you from doing X".

**snooggums** · 04-30-2010, 06:32 PM

Originally Posted by seg[TDev]

Regardless, this whole discussion makes me sick to my stomach. The fact that someone would get an abortion because a special needs child would be a burden makes me sick. I would say Helen Keller wouldn't of had a chance in hell today, but I guess she would have been lucky because she didn't go deaf and blind until 19 months of age.

Helen Keller didn't die five days out of the womb from a terminal, uncurable illness. Since you are using a child who had their disability after birth due to an unrelated illness, your example is completely irrelevant. Helen Keller would have been born today, but due to vaccines she wouldn't have contracted the illness that struck her deaf and blind. Good example for the vaccine thread though!

Helen Keller was not born blind and deaf; it was not until she was 19 months old that she contracted an illness described by doctors as "an acute congestion of the stomach and the brain", which might have been scarlet fever or meningitis.

http://en.wikipedia.org/wiki/Helen_Keller

**snooggums** · 04-30-2010, 06:38 PM

Originally Posted by Kerostasis

In theory that entire section was un-necessary. They could have stopped at section C, and the law would mean effectively the same thing. But people have a tendancy to stretch laws to cover things they weren't intended to cover, both in news reporting and in legal practice, so section D just clarifies that they DONT intend this law to be stretched in that direction. It's all redundant information, but it's just in case you weren't sure after reading sections A through C.

Any death or injury to mother or child is not impacted. The only cause of action that is impacted is the cause that "this child would have been dead, but now he's alive, so I'm suing you".

Without the section there could be no lawsuit even if the mother died due to the doctor choosing not to give the information. Now to be contested someone has to suffer from the law, find out the doctor omitted the information and then sue. Constitutionality should not have to wait for people to suffer from a law that clearly needs to be addressed through the courts but it does.

**Kerostasis** · 04-30-2010, 07:02 PM

Originally Posted by snooggums

Without the section there could be no lawsuit even if the mother died due to the doctor choosing not to give the information.

I would disagree with you, but luckily I don't have to. They pre-empted that problem by including section D, so now we KNOW it doesn't stop lawsuits over the death of the mother (just like if they hadn't passed it). So what's the problem exactly?

**snooggums** · 04-30-2010, 07:10 PM

Originally Posted by Kerostasis

I would disagree with you, but luckily I don't have to. They pre-empted that problem by including section D, so now we KNOW it doesn't stop lawsuits over the death of the mother (just like if they hadn't passed it). So what's the problem exactly?

If you disagree based on the text of the earlier sections in the bill then you can disagree and show proof that you were right, and it is not a blanket coverage for death of the mother, only if the kids' condition was the cause. If the mother dies giving birth to a child who is terminally ill due to unusual pregnancy complications they cannot sue, even with section D because it only covers problems caused death or injury due to the omission if the condition was treatable and existed prior to birth. So the father (in an average family) gets to lose his wife who died giving birth to a child the doctor knew would die shortly after birth yet omitted the information, the father cannot sue.

I'm not seeing that covered elsewhere.

**Razcsak** · 04-30-2010, 08:13 PM

This is just completely unacceptable.

**Kerostasis** · 05-01-2010, 02:21 AM

Originally Posted by snooggums

If you disagree based on the text of the earlier sections in the bill then you can disagree and show proof that you were right, and it is not a blanket coverage for death of the mother, only if the kids' condition was the cause. If the mother dies giving birth to a child who is terminally ill due to unusual pregnancy complications they cannot sue, even with section D because it only covers problems caused death or injury due to the omission if the condition was treatable and existed prior to birth. So the father (in an average family) gets to lose his wife who died giving birth to a child the doctor knew would die shortly after birth yet omitted the information, the father cannot sue.

I'm not seeing that covered elsewhere.

What? Where are you getting that? I don't think I'm interpreting this provision the same way you are. Let me re-post the provision with my interpretation so we can compare.

D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred, or handicap, disease, or disability of an individual prior to birth would have been prevented, cured, or ameliorated in a manner that preserved the health and life of the affected individual.

D. This law will not stop the following suits: Suits claiming Death or injury to the mother, OR handicap, disease, or disability to the unborn (providing the damage to the unborn could be avoided in some way that leaves him still alive).

**El_Gringo_Grande** · 05-01-2010, 11:29 AM

I wonder what a medical board would think of a doctor not informing the patient fully. Would it revoke the doctors license to practice?

**snooggums** · 05-01-2010, 01:59 PM

Originally Posted by Kerostasis

What? Where are you getting that? I don't think I'm interpreting this provision the same way you are. Let me re-post the provision with my interpretation so we can compare.

D. This law will not stop the following suits: Suits claiming Death or injury to the mother, OR handicap, disease, or disability to the unborn (providing the damage to the unborn could be avoided in some way that leaves him still alive).

I read D that way the first time (that the second part was applying to the fetus) but I didn't the second time through. The individual is the mother the whole way through, prior to birth means during the pregnancy, so they are saying that just like you can't sue a doctor for the mother's death if the doctor did nothing wrong, you can't sue for her dying while giving birth to a child that may have been aborted if it was known that there was no curable disease if her death wasn't something that the doctor could have known about.

Basically: Mother has kid with terminal illness that can't be cured, no other special circumstances for the pregnancy (regular death change for mother). The doctor can choose not to tell her, so she goes full term and dies from complications that were not foreseeable. But if aborted this may have been prevented, but you can't hold the doctor accountable for not telling the mother and going full term.

Car analogy: Tim enters a race, the mechanic knows that the engine will die before the race starts and the driver will not finish. During the race the driver has an unforeseeable accident and dies, but it isn't related to why the car wouldn't finish the race. Although the knowledge didn't kill the driver, the mechanic not saying anything put him in the position that lead to his death. This law prevents the parents from making an educated decision on whether to go full term when they know the baby won't be making it, or suing for the withholding of that information.

**Kerostasis** · 05-01-2010, 07:33 PM

I get what your saying, but as hard as I look I can't get the law to come out that way. I can't read it any other way than that the "person prior to birth" is the baby. A mother isn't prior to birth, even if she will be involved in someone else's birth.

**snooggums** · 05-02-2010, 03:05 PM

Originally Posted by Kerostasis

I get what your saying, but as hard as I look I can't get the law to come out that way. I can't read it any other way than that the "person prior to birth" is the baby. A mother isn't prior to birth, even if she will be involved in someone else's birth.

A mother, prior to birth, is an individual.
Same section with mother for all individual designations inserted:
D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred, or handicap, disease, or disability of an the mother prior to birth would have been prevented, cured, or ameliorated in a manner that preserved the health and life of the affected mother.

Same section with infant as person prior to birth, color coded to match as I first read it:
D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred, or handicap, disease, or disability of the fetus prior to birth would have been prevented, cured, or ameliorated in a manner that preserved the health and life of the affected fetus (or mother?).

Only the version with the mother as the individual makes sense, but still limits it to preventable things, not just side effects of a normal pregnancy.

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