Bills Grant Texas Doctors Legal Cover to Mislead Pregnant Women

Twenty weeks into her pregnancy, Carole Wall and her husband discovered through an ultrasound that their future daughter had a 5% chance of surviving. Wall describes the revelation as a devastating moment. She and her husband decided "the best decision" was to put an end to her pregnancy. She credits her physicians for fully informing her of the terminal immune disorder, and shudders to think what would have happened had she acted under the illusion of a normal pregnancy until delivery.

"I can't imagine how we would feel if our doctors hadn't given us the absolute most information they could and we decided to continue the pregnancy," said Wall. "We would be entitled to compensation and assistance in every possible way."

However, if two bills pending in the Texas Legislature make it through both chambers, patients who don't receive full information about fetal abnormalities from their physicians would not be able to recoup the vital economic and legal recourse needed to care for their disabled child. Senate Bill 25, by Sen. Brandon Creighton, R-Conroe, would eliminate "wrongful birth" as a cause of action in medical malpractice, effectively prohibiting patients from suing their physician for withholding information related to severe fetal anomalies. The Senate speedily approved SB 25 – a legislative priority for anti-choice Lt. Gov. Dan Patrick – in late March without much debate. Its House counterpart, HB 434, by Rep. Ron Simmons, R-Carrollton, reached an early April hearing at the chamber's State Affairs Com­mit­tee. It got sent to the full House on Wednesday (April 12).

Critics argue the bills, in effect, would allow doctors to lie to pregnant patients, and grant anti-choice physicians who carry ideological agendas a legal pass to intentionally conceal information in an effort to prevent patients from undergoing abortion. Creighton said so much in his bill statement: "Senate Bill 25 would reduce pressure on physicians to advocate for abortion. It is unacceptable that doctors can be penalized for embracing the sanctity of life."

After testifying against the legislation before the House committee last week, Wall told the Chronicle that the two bills represent just "another way to interfere with a woman's choice to do what's best for her and her family. All women should be entitled to make fully informed decisions. There's truly no reason for this law to exist."

Bill Damages

Either because of a lack of legal knowledge, or simply in an effort to jam their anti-choice bills through, state lawmakers have downplayed the impact of their legislation, insisting that there remains ample opportunity for patients to seek recourse, and that doctors will still be held to the same standard of care. But that's not accurate.

Blake Rocap, legislative counsel with NARAL Pro-Choice Texas, said Creighton obfuscates the truth about wrongful birth – as a subset of medical malpractice, removing that avenue of recourse strips families of securing financial damages for what could involve a lifetime of costly medical care and special education for their children. "This bill would not allow families to recover for any of those things," said Rocap. "It would not help make the family whole."

During testimony, UT-Austin assistant professor and Central Health board member Abigail Aiken told the House State Affairs Committee that HB 434 is a "solution in search of a problem," and explained to bill supporters – who appeared hazy on the actual legalities – that while negligent physicians still may see punishment for their unethical and unprofessional behavior in the form of license revocation or censure from the Texas Medical Board, the patients affected wouldn't be subject to assistance.

A wrongful birth claim typically arises when a physician fails to administer prenatal tests for a woman at risk of fetal abnormality, misinterprets the tests, or fails to communicate the results and meaning of those tests, in a way that is deemed "negligent," explained William Sage, a professor at UT Law who specializes in health law. The bills would grant health care providers protection from legal action well beyond Texas' 2003 tort reform law, which limited damages for "pain and suffering" but not for prospective economic loss, Sage said.

Wrongful birth lawsuits originated in the Texas Supreme Court's 1975 decision in Jacobs v. Theimer, which ruled in favor of the parents of a child born with severe birth defects after mother Dortha Jean Jacobs contracted rubella nearly three weeks into her pregnancy. Her physician failed to diagnose the disease and prevented her from terminating her pregnancy – a choice Jacobs says she would have made. Her family received $120,000 in a settlement for medical care for daughter Lesli, who is autistic, blind, deaf, and suffers from cerebral palsy. "Senator Creighton has not stood where I have stood or walked in my shoes. He has not stood and watched a child suffer like this," Jacobs recently said during an interview with CNN.

An Intrusion of the Courts

Creighton's bill exaggerates the cause of action as a major problem in Texas; one that deters physicians from practicing in state. It's "an invitation to be sued for just practicing medicine," he claims. But legal professionals and the Texas Medical Association don't support the senator's assertion. In fact, the cause of action is exceedingly rare in Texas. TMA President Don Read told the Chronicle he hasn't heard of wrongful birth being a "significant" problem, while Alex Winslow with the Texas Trial Lawyers Assoc­iation said there isn't a "huge prevalence" of these type of cases among group membership.

Attorney Charles Brown, a managing partner of Brown Wharton & Brothers, a malpractice firm serving the state, has practiced law for nearly two decades. He has encountered only one such wrongful birth case in that time. "It's very, very uncommon," he said. Because it occurs so rarely, Brown frankly doesn't believe the bill will make a sizable impact on patient protection, but he adamantly opposes the legislation because it intrudes on the court system.

"It is not the place of whichever party is in power at the Legislature to micromanage juries and the courts for political reasons," he said. "It essentially neuters the civil justice system. I think it's wrong and contrary to the basic idea of separation of powers."

Brown added: "I understand why some conservatives would like to see this bill pass, but they need to understand the effect of having Austin tell their local courts what they can and cannot do. If conservatives really believe in government at the most local level then they should oppose this bill on that basis alone. Nothing is more local than the 12 people on a jury."

Anti-Choice Dog Whistle

Austin resident Rachel Tittle felt shocked when her doctor revealed that her future daughter had contracted congenital cytomegalovirus (CMV) infection, putting her heart on the brink of failure. The common virus, often occurring without symptoms, can lead to mental impairment – or, in severe cases, death. At 20 weeks of pregnancy, it was too late to try experimental fetal therapy to save her new family. Tittle won't blame her doctors, but said that if she had known about the virus earlier she would have taken "extraordinary steps" to save her child. "It wrecked me for years," she said. "It was a devastating experience, and I still grieve for her."

Tittle worries the wrongful birth bills proposed by the Legislature will threaten the chances of taking action to save future babies. In stirring testimony before both committees, Tittle urged lawmakers to consider the bills' consequences: "How do you picture it, with a doctor that decided to lie? Would he smile in the ultrasound room, and tell us everything was fine, while he knew the baby's heart was struggling to beat? That would be wrong, and this bill is wrong."

She noted how, contrary to the bill's premise, not everyone who learns their fetus is abnormal would choose to have an abortion. Instead, they may opt for experimental procedures. "For many fetal conditions, waiting until birth to start treatment is waiting until it's too late," said Tittle. In effect, she contends, the bills could actually lead to more unnecessary stillborn deaths. "I think having this big, public bill is going to be a dog whistle to activist doctors," said Tittle, who identifies as "neutral" on abortion and believes both the anti-choice and pro-choice sides "take things to the extreme."

Indeed, the bill opens the door for anti-choice and religious physicians to manipulate or shield information from patients to prevent abortion. "The not-so-subtle subtext of the bill may encourage physicians who are anti-abortion to avoid mentioning termination of pregnancy when talking to patients about the risks or consequences of fetal anomalies," said Sage, adding that any state law prohibiting such discussions would be an unconstitutional abridgment of First Amendment rights. However, he notes that one might infer that a state whose governor and Legislature supported a law like this would likely urge its medical board not to pursue such cases if they arise.

"It breaks my heart that courts have punished doctors for the birth of children with Down syndrome or a missing limb," Sen. Creighton said, underscoring both his cloudy interpretation of wrongful birth claims and his anti-abortion intention. "Every child is precious and deserving of our protection."

For Tittle, it's a matter of informed choice: It isn't a politician or doctor's right to decide if a patient should have all the facts about their own health. "A child with spina bifida may never walk if the lesion isn't repaired early during his mother's pregnancy," she said. "I'm afraid that, to these politicians, this child spending his life in a wheelchair is acceptable collateral damage. And I think that's wrong."