By Dave Andrusko
County Circuit Judge Karin Immergut
By the time you read this post, a Portland, Oregon, jury may have reached a verdict in a $3 million “wrongful birth” suit brought by the parents of Kalanit Levy. Kalanit has Down syndrome and Ariel and Deborah Levy are suing Legacy Health “claiming that Deborah Levy would have aborted her pregnancy had she known her daughter had the chromosomal abnormality,” reported Aimee Green of the Oregonian newspaper. The trial, before County Circuit Judge Karin Immergut, took place over nine days.
Mrs. Levy had a Chorionic villus sampling (CVS) test because the couple was concerned about the possibility of genetic disorders. The Levy’s basic contention is that Legacy Health botched the test which, done properly, would have shown that their daughter would have Down syndrome; Legacy’s response is, no we didn’t.
According to Green, the Levy’s attorney argued
“that Dr. Thomas Jenkins removed maternal tissue — not fetal tissue –from Deborah Levy’s womb. The suit faults Jenkins and lab workers for not recognizing that the tissue was from the mother. The suit also faults Legacy for reassuring her that her baby didn’t have an extra 21st chromosome even though two ultrasounds allegedly raised red flags by showing traits of Down syndrome.”
The attorney for the hospital said the reason only normal cells were found by the CVS test is 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.”
The story is sad on so many levels, beyond the horrible message it sends about (and eventually to) little Kalanit, now four years old.
· Reporter Green matter of factly writes that the Levys “dearly love their daughter.” They are suing for the money, they say, to pay for the extra life-time costs of caring for Kalanit.
· 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.
· Their 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.
Having said that, nonetheless
· “the Levys say they have the same expectations for their daughter as they do for their sons: They want to help her reach her full potential. Deborah Levy said Karen Gaffney has been a role model. Gaffney — a Portland area woman who has Down syndrome — graduated from high school with a regular diploma, earned a Portland Community College degree and travels the nation speaking about overcoming limitations.”
· Green helps the reader understand the wider context. That 89% or more of babies diagnosed to have Down syndrome are aborted. That while CVS tests “are as much as 99.7 percent accurate,” wrongful birth suits may become more common because “as technology advances, more women in their late 30s or 40s give birth and millions of expectant mothers come to rely on genetic screenings.” Put another way, with more older women (who have a greater likelihood of carrying babies with fetal anomalies) becoming pregnant, some of this larger pool of babies will “evade detection.”
· The case, in the hands of the twelve jurors, “gets to the core of how we view and value a life, and asks who should have to pay when that life is less than optimal.”
If you go to the Karen Gaffney Foundation website, you find this:
“Karen travels the country speaking to a wide range of audiences about overcoming limitations and about what can be accomplished with positive expectations. Karen tackles any challenge she faces with determination and commitment, knowing she has limits, but not allowing them to limit her drive to succeed. Oh, and by the way…. Karen Gaffney has Down syndrome.”