Parents win $2.9 million “wrongful birth” lawsuit in Oregon

By Dave Andrusko

County Circuit Judge Karin Immergut

After less than six hours, a Portland, Oregon, jury Friday awarded Ariel and Deborah Levy $2.9 million for the “wrongful birth” of their now-four-year-old daughter. Kalanit has Down syndrome.

The couple sued Legacy Health claiming that Deborah Levy would have aborted her pregnancy had she known her daughter had the chromosomal abnormality. The trial, before County Circuit Judge Karin Immergut, took ten days. Legacy Health was found negligent on five fronts, jurors said.

The Levy’s lawyer said the parents deeply love Kalanit and were suing for money to pay for the additional costs of care for their daughter over her lifetime. The Levys originally asked for $7 million.

Already the mother of two young boys, Mrs. Levy, then 34, surprisingly became pregnant in November 2006. Attorney Miller said she and her husband were concerned about the possibility of genetic disorders.

At 13 weeks, Dr. Thomas Jenkins of Legacy’s Center for Maternal-Fetal Medicine in North Portland performed a chorionic villus sampling, or CVS.

“A Legacy lab tested a small amount of tissue that the doctor had removed from Levy’s womb,” according to Oregonian reporter Aimee Green.”The results showed the Levy’s daughter had a normal chromosomal profile.”

Two ultrasounds subsequently showed abnormalities that sometimes indicate Down syndrome, but “the Levys testified they were assured that their daughter would not have the chromosomal abnormality,” Green reported. “Legacy staff did not advise them to get an amniocentesis, which is another prenatal test that detects Down syndrome.”

Initially overjoyed at the baby’s birth, Deborah Levy testified that one week after her daughter’s birth, she arrived at the pediatrician’s office eager to “show off my daughter.” When the blood tests showed that Kalanit had Down syndrome, “”It was devastating,” Deborah Levy recalled. Evidently, she no longer felt she could show her child off.

The Levy’s two sons “are healthy, strong and bright,” Green reports. “The oldest is a competitive chess player and has placed in the 99th percentile on standardized tests.” Kalanit will not play competitive chess. She speaks in short sentences and does not like to brush her teeth

Legacy’s attorney, Robert Keating, said they had done nothing wrong. He called on experts who said the CVS tests were properly conducted. The normal genetic profile was because Kalanit has mosiac Down syndrome — meaning a significant number of her cells don’t contain an extra 21st chromosome. “Keating pointed to an analysis of Kalanit’s cells — taken after birth — that showed nearly 31 percent are normal.”

In a statement, the company said,  “While Legacy Health has great respect for the judicial process, we are disappointed in today’s verdict,” adding, “The legal team from Legacy Health will be reviewing the record and considering available options.”

According to newspaper accounts, “The couple nodded and mouthed ‘thank you’ as jurors filed out of the courtroom. A few nodded back, smiled or reached out a hand toward the Levys. One juror visibly held back tears. Another wished them peace.”

Bioethicist Arthur Caplan, hardly a pro-life advocate,  made several key observations in a column that ran before the verdict was delivered.

Wrongful birth lawsuits, Caplan wrote

“risk leaving their other children (the Levys have two sons) wondering if their parents really wanted them.

“Wrongful birth lawsuits are a horrible way to deal with failed prenatal testing.

“Forcing parents to argue that their child never should have been born may make legal sense but it is morally absurd.

“Why ask parents to reject the existence of their own child? Who can really put a value on a life that some argue in court ought not exist?

“There is no reason to permit wrongful birth or wrongful life cases.”

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