Arizona Moves to Bar “Wrongful Birth” Lawsuits


Aaron Carroll asks:

Should doctors be protected by law for withholding information from patients that their patients might want to know?

Hmmm. I guess the correct answer is “no.” But I’m a little confused about whether anyone actually disagrees about this.

At issue is an Arizona bill that would bar “wrongful birth” and “wrongful life” suits. These suits have a long history, and are generally brought by parents who believe their physician failed to tell them about a prenatal problem that might have led them to seek an abortion if they’d known about it. Some states allow these suits, some don’t. But does the Arizona bill protect a doctor who, perhaps because he or she opposes abortion on principle, deliberately withholds information that could lead the mother to seek an abortion?

It doesn’t seem like it to me. The bill in question is SB 1359, and it’s pretty short. Here’s paragraph D:

This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.

Any Arizona readers care to comment? Is there some kind of legal distinction between “negligent” and “grossly negligent” that’s germane here? Is “intentional” so hard to prove that in practice no one can ever do it? Is there some key distinction between a wrongful birth tort and an ordinary malpractice tort? This bill is obviously motivated by pro-life principles, and obviously it does something. But it plainly doesn’t allow doctors to deliberately lie about prenatal conditions. Still, perhaps it gives them more wiggle room to “accidentally” miss something or “just decide” not to run a test? I can’t tell. Doctors, lawyers, and Arizonans are urged to weigh in and educate the rest of us.

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