Resolution in Florida Wrongful Birth Case

Tom Clarkson is a student at the University of Georgia School of Law.

The “Wrongful Birth” debate is in the news yet again. In a pair of previous posts (here and here) the Genomics Law Report highlighted several issues relevant to the debate over what happens when states recognize a cause of action for wrongful birth, wrongful life or wrongful conception. A recent example from Florida illustrates that the debate continues.

Aiden, Caleb and Smith-Lemli-Opitz. In 2002 Aiden Estrada was born with a number of severe birth defects. Despite multiple examinations, Dr. Boris Kousseff, Director of Medical Genetics of the University of South Florida College of Medicine, failed to diagnose the symptoms as Smith-Lemli-Opitz syndrome and informed Aiden’s parents that they could expect a “normal” pregnancy if they conceived again. Relying on these representations, Amara and Daniel Estrada conceived a second child in 2004. This second child, Caleb, was born with symptoms nearly identical to those of his brother Aiden. Within one hour of Caleb’s birth, a geneticist at the University of Florida diagnosed him with Smith-Lemli-Opitz syndrome. The Estradas sued, and a Florida jury awarded them more than $20 million dollars in their wrongful birth suit in July 2007.

As the Estradas soon found out, a courtroom victory does not necessarily equal a recovery. Because Dr. Kousseff was a state employee, state law limited the amount of their recovery to $200,000, with any recovery above that amount requiring a special act of the Florida Legislature. On March 2, 2010, the Florida Legislature passed “An Act for the Relief of Daniel and Amara Estrada,” authorizing the payment of $25,023,212.92 to compensate the Estradas for the remainder of the judgment.

The Political Element. As we discussed in a previous post, the distinction between claims for “wrongful birth” – which allows parents to recover costs associated with the care of a disabled child – and “wrongful life” – which seek to compensate the child (or parents, suing on behalf of the child) for the harm caused by a birth that would not have occurred but for negligent care is important but subtle. Addressing the issue of damages from the perspective of the caregivers (the parents) and not the child permits jurisdictions that prefer the wrongful birth framing, including Florida, to avoid the even more challenging questions associated with wrongful life claims. These include considering whether acknowledging the claim implies a “judgment that an individual life is so wretched that one would have been better off not to exist.

Even under the wrongful birth framing, the act of the Florida Legislature authorizing the Estradas’ additional compensation was by no means a foregone conclusion. In 2007 one commentator quoted Victor Crist, the Florida State Senator in charge of overseeing the potential payout, on the controversial nature of the case:

In the 15 years I’ve been in the Legislature, I haven’t seen that kind of issue. This has a potential moral question that could become a potential political issue. I don’t know what the Legislature will do with that.

The “potential moral question” to which Victor Crist referred related to the potential role of abortion in the case. Had the Estradas’ first child, Aiden, been correctly diagnosed with Smith-Lemli-Opitz syndrome prior to Caleb’s conception, a relatively simple reproductive genetic screening test would likely have detected the syndrome in Caleb. Among the options available to the Estradas would have been abortion.

For both politicians and the public, it is easy to see how the torts of wrongful birth or wrongful life can become intertwined with the issue of abortion. In that regard, the Estradas’ case raises interesting issues as to whether state legislatures will continue to defer to juries who award massive judgments against employees of state medical facilities, or whether state legislatures will choose to inject moral and political considerations into the discussion. With rapid changes in the science and law of reproductive genetics delivering more questions than answers, relatively untested theories of liability – including wrongful birth and wrongful life – are likely to continue to remain a source of contention for both courts and legislatures.