Judge: Parents Who Would Have Aborted Cystic Fibrosis Baby Can Sue

State   |   Steven Ertelt   |   Jun 22, 2012   |   5:22PM   |   Livingston, MT

A Montana couple who say they would have killed their baby in an abortion had the physician informed them they would have a child with cystic fibrosis may sue. That’s the decision District Judge Mike Salvagni issued this week for Kerrie and Joe Evans, saying they should be able to take their case to a higher court.

Filed in October, the couple’s lawsuit names several health care providers, including Livingston HealthCare and nurse Peggy Scanson and the couple seeks damages for emotional distress and medical costs related to their daughter’s medical care she will need to help deal with the condition.

Moreover, the lawsuit demands the medical facility establish a checklist allowing parents-to-be to know that genetic testing is available that could prompt them to consider abortion in similar cases when the baby is diagnosed with such conditions in the womb.

The medical clinic, nurse and others involved in the case say it should be dismissed because Montana has no legal precedent for such “wrongful birth” lawsuits and they say the legislature is the proper place to determine if a law should be established allowing them.

The Great Falls Tribune has more on the situation:

The lawsuit claimed that Kerrie Evans, who was 38 when she became pregnant, told Scanson that the pregnancy was unplanned and she and her husband had “the most private of discussions about terminating the pregnancy in the event the fetus tested positive for serious fetal abnormalities.”

The Gardiner couple said Scanson failed to exercise a standard of care by failing to have them accept or reject blood tests to determine if they carried the recessive gene that would have given their unborn child a 25 percent chance of being born with cystic fibrosis, a disease that causes mucus to build up in the lungs.

The couple also alleged that Scanson failed to order a test for the disease as part of risky genetic testing Kerrie Evans underwent during the first trimester of her pregnancy, even though she had expressed her concerns about the disease to Scanson.

The Evanses are seeking damages “for a missed opportunity to abort their daughter,” wrote Julie Lichte, attorney for Scanson and Livingston HealthCare. Allowing the case to proceed “will ask a jury to award them damages for the very existence of their daughter,” the attorney said.

Lichte also contended her clients’ actions did not cause damage to the Evanses.

“Cystic fibrosis is an incurable, genetic disease that is inherited at the time of conception,” she argued. “Neither (Livingston HealthCare) nor Scanson caused Baby Evans to contract cystic fibrosis and neither could have prevented this disease.”



The case is similar a so-called wrongful birth case in Oregon earlier this year that sparked national outrage.

An Oregon couple was awarded $2.9 million because they would have aborted their little girl had they known she had Down Syndrome. Deborah and Ariel Levy told an Oregon court that prenatal testing they received said little Kalanit did not have Down Syndrome. The Levys said that they were devastated when Kalanit was diagnosed after she was born.