Obstetrics Group Recommends When Malpractice Suits Can Apply

Recommendations on the birth defects that cannot be grounds for a malpractice suit by reason of 'wrongful birth,' even if they were not detected during the pregnancy.

The Israel Society of Gynecology and Obstetrics yesterday gave the Supreme Court its recommendations on the birth defects that cannot be grounds for a malpractice suit by reason of “wrongful birth,” even if they were not detected during the pregnancy.

The position paper was submitted in connection to a case that combines four different suits against Israeli medical institutions by the parents of children who were born with disabilities. The Society of Gynecology and Obstetrics submitted its opinion after its parent organization, the Israel Medical Association, was accepted as a friend of the court in connection to the case.

The document divides birth defects into three groups, based on the severity of the disability. The first group consists of birth defects that confer a “slight functional limitation” and which should be excluded from the wrongful death definition.

This category comprises slight physical impairments including skeletal defects such as asymmetry in the length of the femur; clubfoot ‏(congenital talipes equinovarus‏) or distortions of the hand; cosmetic facial defects such as cleft palate, a receding chin or asymetric ear structure; and the absence of one of the paired essential organs, such as the absence of one kidney or one eye, on condition that the remaining organ functions normally.

“All these defects are undoubtedly associated with discomfort and functional limitation but are not severe enough to have a significant effect on the individual’s quality of life or to affect the opportunity to have a normal independent life and to integrate into society,” the authors of the paper write. The SGO recommends that this group not be considered grounds for wrongful birth lawsuits.

The second group of birth defects includes those conferring “moderate functional limitation” − disabilities that are more serious than those in the first group but nevertheless allow the affected individuals to get around independently and to feed, dress and clean themselves without needing help.

This group includes heart or lung defects that allow for acceptable quality of life and longevity but obviate intense physical effort; defects in the digestive system that allow for normal eating but with a restrictive diet; extreme shortness of stature that restricts the person’s ability to integrate into society but not to acquire higher education; or a slight developmental disability that involves learning disabilities only.

In such cases the medical association recommends permitting wrongful birth lawsuits only in extreme cases that involve a significant loss of function.

“Most of these cases don’t come under wrongful birth,” the SGO says in its recommendations.

The third group comprises birth defects that are grounds for a wrongful birth lawsuit because they carry reduced quality of life, the inability to function independently and total, lifelong dependence on others, including for daily tasks such as dressing, eating and maintaining personal hygiene. This group includes structural defects of the brain, spina bifida, blindness, the lack of both arms and genetic disorders involving significant developmental delays ‏(mental retardation‏).

Wrongful birth was first recognized by Israel’s Supreme Court in February 1986.