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Does not compute

A Boston woman who gave birth after a failed abortion has filed a lawsuit against two doctors and Planned Parenthood seeking the costs of raising her child

This case should not long survive in the courts, for the simple reason that the mother can easily avoid all expenses related to raising the child simply by giving the kid up for adoption. She did not want the kid in the first place, so giving it up can not be much of a problem for her, can it? Or has Massachusetts jettisoned the basic legal rule that a plaintiff has the duty to mitigate her damages before seeking to recover them in court? The story does mention that:

The state’s high court ruled in 1990 that parents can sue physicians for child-rearing expenses, but limited those claims to cases in which children require extraordinary expenses because of medical problems, medical malpractice lawyer Andrew C. Meyer Jr. said.

But in the absence of the context of this finding, I can not say that it really stands for the proposition that the plaintiff in this case can have her cake and eat it too, by reaping the psychic benefits of parenthood while sending the bill to those who made it possible, however inadvertently and unintentionally.

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11 comments to Does not compute

  • Lizzie

    I couldn’t feel any sorrier for that little girl if I tried. At some point in her life she’s going to be made aware of this suit – imagine how she will feel, knowing that her mother tried to abort her. And that not only was she unwanted before her birth, but so unwanted afterwards that her mother doesn’t even want to pay for her upbringing.

    That poor kid.

  • Ham

    She didn’t want the kid in the first place, so giving it up can’t be much of a problem for her, can it?

    It can, if you’re the sort of person who can see a difference between a fertilized egg and a conscious child.

  • Nick M

    While I agree up to a point with the idea that if she didn’t want the child she should give it up for adoption the Docs are possibly culpable for incompetence and therefore for the pain and trauma she went through giving birth.

  • R C Dean

    It can, if you’re the sort of person who can see a difference between a fertilized egg and a conscious child.

    Metaphysics a side, my question is, why doesn’t she give the kid up for adoption? She obviously didn’t want a kid in the first place, so why is she keeping the little crumbcruncher now?

    the Docs are possibly culpable for incompetence and therefore for the pain and trauma she went through giving birth.

    Granted.

  • bud

    “But in the absence of the context of this finding, I can not say that it really stands for the proposition that the plaintiff in this case can have her cake and eat it too, by reaping the psychic benefits of parenthood while sending the bill to those who made it possible, however inadvertently and unintentionally.”

    Not very familiar with US “Deadbeat Dad” legislation, are you? The Docs are in exactly the same place as any guy accused of being the father of a child. No rights, but paying.

  • Paul Marks

    British people tend to snear at the perversions of American tort law – till those perversions turn up here (which they tend to, after awhile).

    However, it is true that most States seem to have got rid of the basic principles of tort law (as the great Common Law lawyers understood them).

    The basic problem is the desire for “a remedy” – a bad thing happens so “someone must pay”.

    A person breaks into your house and hurts himself? You should pay (according to some court judgements) – the legal fiction is that you invited him (even though you did not).

    An operation goes wrong – the doctor must pay, even though he did as best he could.

    One of the side effects of that is that there a lot of places in the United States where it is very difficult to get a doctor to help with a difficult child birth.

    In a rural area there are not enough people for the doctor to be able to afford malpractice insurance.

    So because of the desire to get very large sums of money whenever a doctor makes a mistake (or even if he does not make a mistake) some people do not get medical help – or have to drive to a distant city to get it.

    However, I still find it odd that a doctor could fail in abortion (after all to save a patient is often difficult – but to kill one is easy, all the forces of the universe make killing less difficult that saving).

    For example, in partial birth abortion the baby is ripped from the womb and then has a piece of steel put through his or her head. How could anyone fail? It is not as if some small baby can put up much of a fight.

  • Midwesterner

    Paul, the things you say about doctors as victims would be true in a free market. But I have a lot of trouble feeling sorry for an industry that uses the power of government (ruthless monopoly) to steal my money and then falls prey to another industry doing the same thing. There is a rather Darwin-awards satisfaction to it.

    Of course, the curse is that we are the ones who suffer. But somehow I seriously doubt the medical industry would suddenly become benevolent and non-monopololistic if we protected them even further from the consequences of their actions by eliminating the very last incentive short of fear of congressional hearings from their reasons for caring about their customers.

  • Pascal

    Midwesterner,

    Nobody is arguing for doctors to be held unaccountable for any of their actions.

    It is just that medicine is not a perfect and clear cut science, whatever you read in the papers, and it seems to me that people get blamed whether there is intention or not.

    If that woman really wanted to abort, I would have thought that she would have had further possibilities to get it done.

    As the 1st poster says, the one who will suffer is the child, who should be taken away from someone who can even think something like this.

  • Midwesterner

    Actually Pascal, Paul and most others on this site want to limit tort law awards. I used to also, but I don’t anymore. The system of judgement needs fixed, not replaced with a collectivised prejudgment one size fits all dollar limit on how much damage people will be held accountable for. I am an individualist. Each case needs to be judged on its individual merits. The system is broken, no question. But it needs repaired, not collectivised.

    When I can get medical care from the person(s) of my choice and the AMA won’t have their assets stolen from them and have them thrown in prison, then I will be a little more receptive to protecting the AMA from their angry ‘customers’.

  • Paul Marks

    Actually I would much prefer to return to the principles of law than to place an arbitary limit on what courts can award.

    It is much like my attitude to “right to work laws”. In theory if an employer wants to say “if you want to work for me you have to join this union” I would think a bit touched in the head, but I would not support regulations forbidding him to do act this way.

    However, in reality, employers are forced (by other government regulations giving unions powers) to sometimes make these deals with unions – so, on a pragmatic basis, right to work statutes do more good than harm.

    But normally this is not the case. New government regulations or practices do not “counter balance” other government regulations or practices – they just add new harm on top of old harm.

    Of course I oppose government licensing regulations. Let the A.M.A. advertise “do not go to a non A.M.A. member – they will put your health at risk”, rather than using back door means to get a monopoly position (this is also true of lawyers – if I want to hire an “unqalified person” to represent me in court I may be a fool, but I should be allowed to do so).

    However, just because the A.M.A. shut down (by using State govenments) medical schools that would not play ball and did various other nasty things – does not mean that Doctors should be hit with John Edwards style malpractice actions.

    You see my point – it is the old “two wrongs do not make a right”.

    It just means worse (because defensive) and more expensive health care.

    The old principles of tort law (such as having to prove negligence) should be returned to. And not just as regards doctors.

  • Midwesterner

    In that case Paul, then I am happy to find out I misunderstood your position.

    With the understanding that award limits are a sure recipe for more government, then yes, I am very much in favor of reform that respects individualist principles yet also makes a fundamental reform in how damages are calculated.

    I don’t yet have any strongly held ideas on exactly how tort reform should be achieved, but it is pretty obvious something is broken. I first realized this as a contractor who paid an embedded and invisible premium for certain tools (ie ladders) that had a lot of lawsuit payouts. Back then I assumed caps were okay. Now, I think we need to be very careful to not, as you say, commit two wrongs trying to right something.