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on Wrongful Birth Cases During the last eighteen months, Blume Goldfaden has successfully resolved four significant "wrongful birth cases." Dennis Donnelly, a principal with the firm since 1987, says that "the frequency of these types of cases will continue to increase as prenatal testing becomes even more accurate in detecting serious birth defects." Mr. Donnelly defines wrongful birth as cases which result when medical professionals fail to give parents the information and options that medical science has made available for expectant parents. he says: "These tests recognize serious birth defects in the fetus during the first trimester, when the option to terminate is a constitutional right." Recently, Mr. Donnelly
obtained a $ 2 million jury verdict and two significant settlements--for
$ 1.2 million and $ 950,000--on behalf of parents who were misinformed
about the availability and accuracy of blood tests and ultrasound results
early in the pregnancy that indicated Spina Bifida and Down's syndrome. In 1996, Blume Goldfaden Principal Michael Zerres obtained a $ 1.5 million settlement in a wrongful birth case when the Mother's HMO failed to disclose the abnormal results of an Alpha Feta Protein test until pregnancy termination was not an option. The infant, now 10 years old, was born with an Encephalocoele, partially blind and suffers from seizures. Since 1988, the Alpha Feta Protein Test (AFP), a simple pre-natal blood test administered early in pregnancy, has been available and able to detect numerous birth defects. Ultrasound testing is also used to identify birth defects. In March, 1998, Mr. Donnelly resolved two separate cases of wrongful birth / medical negligence when pre-natal test results were performed early in the pregnancy, yet parents were misinformed about the results. In one, after an ultrasound performed during pregnancy indicated that a blood test screening for Spina Bifida was administered too early in the pregnancy, the obstetrician failed to retake the blood test. The parents were denied the opportunity to choose to terminate the pregnancy and the child was born with Spina Bifida, paralyzed from the waist down. The second case
involved a failure to diagnose Down's Syndrome. The alpha feta protein
test results were mishandled. When an ultrasound at 16 weeks showed
that the AFP blood test given at 14 weeks gave a low result, the couple
was told that it was acceptable to ignore the test given at 14 weeks
when in fact the low results were valid indicators of the birth defect. Later in the pregnancy
the same obstetrician failed to properly read an ultrasound which showed
an excessive amount of fat at the back of the child's neck--also indicating
Down's Syndrome. Cases of wrongful
birth can also involve embryos which were not properly tested for birth
defects before they were implanted. Mr. Donnelly is currently investigating
such a case involving an infant born with a form of Down's Syndrome
which caused his death 24 hours after his birth. Since embryos can be
tested before implantation, this type of case can be described as a
wrongful breech of warranty. Mr. Donnelly says he and other Blume, Goldfaden attorneys are continuing to develop their expertise in the field of wrongful birth and hopes that the verdicts and settlements obtained in these tragic cases will draw attention to the importance of proper prenatal testing to detect spina bifida, sickle cell anemia, Tay Sachs disease, Downs Syndrome, cystic fibrosis and other birth defects which necessitate a lifetime of therapy and treatment. Main
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