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Legal Settlements as a Substitute for the Right to Care

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By Emjaybee


A few blog posts ago, Dr. San Roman noted in one of his comments:

The problem with lawsuits is that most patients do not WANT to sue their doctor but when they bring home a neurologically impaired infant they will find that there are many many expenses that will not be covered by medical insurance. For example, my patient with the amniotic fluid embolus had to work opposite shifts with her husband because they could not afford the type of child care that was needed by their child. Despite never spending any time home together, they still went bankrupt. With only one potential source to obtain the money needed to sustain their family they decided to file a lawsuit and received a 4.5 million dollar settlement from our hospital. Our hospital had no fault in this patient’s care but they were afraid of a larger jury verdict.

As I told him then, this was something, that I, too, kept thinking of whenever the “OBs operate/make other interventions because patients sue,” discussion comes up, as it invariably does when discussing c-section rates.  Having been witness to family members going through lawsuits, it seems unlikely to me that most people would pursue one for fun.  

Blogger Jemima Aslana, who has Asperger’s and depression, blogged recently about a “wrongful birth” case  in which a woman successfully sued the medical professionals who did not encourage her to have a test that might have identified her daughter’s disabling genetic disorder in time to have an abortion.  For many of us, the idea of “wrongful birth” takes us aback, or even horrifies us, carrying as it does the implication that a given child that now exists would be better off not being born. And yet, Jemima says:

You know… on one hand it’s fucking awful everytime to hear that disability will cause people to abort a child.

On the other hand it’s also fucking awful to hear people judge those who have decided that they cannot care for a severely disabled child. Who are we to judge how far their spoons will stretch?

And even worse to hear people judge those who sue in order to get the money required to care for such a child. Being disabled is fucking expensive in many cases. Being a parent of a disabled child does not automatically make you able to pay the bills. State might fund things until the child turns 21 as in this case, but what then?

I cannot fault this woman for ensuring money to support her daughter, when the state no longer will. I cannot fault her for trying to make the best of bad situation - the bad situation being living in a country that does not value the lives of disabled people, meaning that we become heavy financial burdens on families that cannot foot those bills.

I know we don’t want to be seen as burdens. And to view us as such is incredibly dehumanising. But let’s face it: I’m lucky I live in Denmark, ‘cause that makes me far better off than most Americans. In the US, whether or not the parents understand, love and support their child, having a disability can be bloody costly, and a financial burden of that size is not something everyone can bear, be they able-bodied or not.

If we think it is okay to abort a child because we cannot afford one. We must also approve of aborting a child if the cost of caring for its disability would exceed what we can afford. If one cost-analysis is okay, then the other has to be also. Not until the financial cost of raising a child becomes the same for the parent whether or not the child has a disability or is able-bodied, can this decision be made purely with consideration of disability-ethics.

This should not lead us to judge the parents who abort a disabled child, but should rather lead us to judge the society that does not want to help people with disabilities, so that our loved ones shouldn’t have to bankrupt themselves in order to secure care for us. Can we really fault a parent who wants to be sure they can support their child financially?

s.e. smith at Tiger Beatdown, who included Jemima’s post in her discussion of wrongful birth cases, connects the dots as well:

Many families face the unenviable choice of being full time caregivers indefinitely, or surrendering children to foster care, because there is no middle ground. We are still suing, and protesting, for the right to live in our communities, and wrongful birth suits are an example of one way families can make it possible for their children stay at home, since they don’t get the support they need.

What I see in wrongful birth suits is the need for a larger discussion on social support for people with disabilities. Parents facing unexpected medical costs need to get them covered somehow, and, well, a lawsuit can be one way to do it, especially since support for people with disabilities drops off radically after age 21, which means that even if a child qualifies for benefits, as soon as she turns 21, those may dry up. She still needs support, but it’s not available.


Nearly every expecting woman thinks, if only briefly, about what she would do if her child is born disabled, or becomes disabled.  How will she care for them and still keep her job, her home; how will she care for her other children? What happens to her disabled child when she dies?  Maybe she starts to notice how the stories, fictional and real, that we see about families coming to terms with raising a disabled child avoid dealing with these questions.

The emotional anguish, the physical exhaustion, the relationship stress, all those may be mentioned. But it still seems taboo to depict the possibility of going bankrupt while caring for someone with a disability, or what happens when parents are no longer around to protect a disabled child.  Too depressing for prime time; too condemning of our for-profit system and nonexistent concern for our most vulnerable citizens and their caregivers.  

The increasing risk of lawsuit for birth injuries or even wrongful births is one of the many ripple effects of that system; and when OBs and other medical professionals consider the risks of lawsuits, it might be useful to consider that their patients may not be looking for someone to blame or for a rich payday, but for anything that will allow them to care for their loved ones and give them some security.  It’s not a fair or sustainable method, but for many, it may be the only one they have access to.  If doctors want that pressure to decrease, they are going to have to choose one of two paths. Either continue to see those plaintiffs as enemies and attempt to use the law to cut off even this mode of relief for them, or advocate for social and political change such that access to care is seen as a right of every citizen, regardless of ability to pay.



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Reader Comments (13)

Thank you for this post! I think this is one more thing many people fail to consider when we discuss health care reform - that it may be de facto tort reform. Any policy folks out there want to suggest the kind of analysis we need to present to support this idea and get it to take off?

May 16, 2011 | Unregistered CommenterChristie B

I think you've got it exactly. If it costs millions of dollars to raise a child with any kind of disability, and your healthcare system is under no obligation to provide it, where else does it come from other than the lawsuit lottery? Yet another reason we needed universal single-payor health care (not the pitiful sop to insurance companies known as the universal mandate.)

May 16, 2011 | Unregistered CommenterLauren Plante

Emjaybee, I'm glad you wrote this post. It echoes what Barbara Katz-Rothman said in her contribution to the defensive medicine series in January:

In a better kind of insurance system, people would be insured for need – if you have a very expensive kid, one who needs wheelchairs and ramps, expensive surgeries, long-term nursing care, or all of those, then those needs would be met. That is how universal health care coverage works in most of the world. But we have not got that kind of system, so instead, individuals have to sue. Private companies insure practitioners, and patients with unmet needs can sue practitioners who in some way failed them.

Katz-Rothman studied some of the other issues about prenatal testing, risk counseling and disability in her book, The Tentative Pregnancy. A follow-up to the 1986 book that incorporates a scholarly look at the same issues in our current medico-legal climate would be fascinating.

May 16, 2011 | Registered CommenterJill

"In a better kind of insurance system, people would be insured for need – if you have a very expensive kid, one who needs wheelchairs and ramps, expensive surgeries, long-term nursing care, or all of those, then those needs would be met."

A wonderful dream, but who's gonna pay for it? It's not economically sound, seeing as it would require insurance to pay out more than it takes in. A system like that would collapse in a heartbeat. It's not that people don't feel for the disabled or those who bear the monetary burden of caring for them (my family is included in that group as well), but thus far the only solutions offered are entirely impractical, such as this one. It's not enough to come up with a solution. It has to be one that will actually work.

May 16, 2011 | Unregistered CommenterHeatherB

HeatherB, what's your reasoning? How do you know it would collapse?

May 16, 2011 | Registered CommenterJill

When your expenses (medical payouts) exceed your income (insurance premiums), you go bankrupt. It's as true for companies and governments as it is for households. Insurance of any kind only works more people pay into it than collect on it. A system that insures people based on need would include mostly people who NEED the insurance (more payouts). It only works if most of the people who are insured and paying into the system are healthy and don't require a payout.

May 16, 2011 | Unregistered CommenterHeatherB

"A system that insures people based on need would include mostly people who NEED the insurance (more payouts). It only works if most of the people who are insured and paying into the system are healthy and don't require a payout."

That is actually an excellent argument for a classic single-payer system. If everyone pays in, by virtue of being a citizen, then the pool is much larger than, for example, the average pool of a mid-sized corporation; in addition a single system leads to much greater economies of scale.

May 16, 2011 | Unregistered Commenteremjaybee

In this context it's instructive to recall Paul Krugman's comment: "Our government is just an insurance company with an army."

May 17, 2011 | Unregistered CommenterLauren Plante

I know better than to get into this. I know better, I know better. Patients do not sue for fun. They do so for money. If was just a revenge or vindication then we could establish some sort of face-to-face scream mediation session in which the provider would be muzzled.

A single payer system would be great. The problem is the health plan we have now from the government is not. It is a complex system that utilizes taxes, fees, subsidies, union exemptions, AND insurance companies. It also very carefully avoids tort control. Here we want a system like the nonexsistent ones that are continuously taken out of context in other, smaller countries. These models would still probably work here, provided you make the health care providers government employees and also make it possible to sue the government. Which is why the government here will never become a true single payer system. It would put too many attorneys out of business and take away the jackpot justice system we have now. I have been sued by a patient that did so because yes, her childcare expenses were astronomical, and she had a question: Was something done wrong. She dropped me from the suit and eventually received an eight figure judgement from the hospital. Her husband divorced her and spent his portion of the judgement on bizarre purchases. She cared for her child who eventually died at age eleven.

Emjaybee, you are a fantastic writer and put forth great ideas. But, you are very wrong for jading the readers with your statement that somehow doctors "use the law to cut off even this mode of relief for them". Are you suggesting that all suits are culpable and that doctors have no right to defend their practice? The word "even" makes this more evil sounding. Was that the intent? And why did you single out doctors? Are not midwives sued also? I have never chosen to deny relief to a patient by defending myself. This was an inflammatory statement not worthy of your usual writings. And I know better than to get involved. I am not the writer/teacher that Daniels, Hayes, Jill and the multitude of others are. But I do work in a very litigious state. I thus, see this a little differently even though I still am in agreement with the ideas you put forth. Please be kind to the mentally challenged in your response.

May 17, 2011 | Unregistered Commenterob

I didn't take Emjaybee's comments as inflammatory (but I am not in your shoes, OB). Rather, I interpreted it more of a hands-in-the-air, our options are limited. I believe the point is tort reform helps the doctors not worry about being sued left and right (which is something we want, because when doctors are limited patients are limited) but still offers no relief for the disabled, so that solution is one-sided.

May 17, 2011 | Unregistered CommenterSteph G.
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