4th DCA overturns a $ 2.5 million wrongful birth medical malpractice verdict

Florida medical malpractice lawyer discusses case in which  the 4th DCA overturned a $ 2.5 million wrongful birth verdict against an obstetrician.  

What is a wrongful birth medical malpractice claim?

A wrongful birth claim is a type of medical malpractice claim where a mother gives birth to a deformed child and takes the position that the “negligent treatment” or “negligent advice” deprived them of opportunity to avoid pregnancy or abort a pregnancy.

Facts of the Case

During her pregnancy the child’s mother started bleeding and was referred to the hospital for ultrasounds.  The first ultrasound was limited did not allow the doctor to view the baby’s arms and legs. The report noted that the child’s anatomy appeared normal but there were some other issues that required additional testing and genetic counseling.

The genetic counselor recommended amniocentesis, which the mother declined.  However, the mother did undergo a more involved ultrasound called a “level II” ultrasound. The report of the ultrasound mentioned that the baby’s hands and feet were not visible.  The child was born with no hands, one leg, and a part of a foot that was attached to the hip on the other leg.

The Lawsuit

The parents of the child claimed that the obstetrician was negligent because she didn’t tell them that the fetus had the limb defects that prevented them from making a decision to terminate the pregnancy.

The defendant wanted to proffer the “so what defense.”  What the defendant wanted to argue was that Florida has an antiabortion statute that would forbid a legal abortion because the fetus was in the third trimester.  The parents took the position that the fetus was still in second trimester.  The trial judge did not allow the defendant to use this defense because she found that the antiabortion statute was not relevant to the negligence.  The jury awarded the child $2.5 million dollars.


The appellate court said that the trial judge erred when she did not allow the defendant to argue the antiabortion statute.  Specifically, the court said:

A party is entitled to have the trial court instruct the jury on its theory of the case when the evidence, even though controverted, supports that theory.


The new jury will have to decide whether the doctor was negligent and whether the negligence caused or substantially contributed to the birth defect. The defendant will be able to argue her so what defense.  In essence, the defendant can argue that even if she was negligent by not informing the parents – “so what” because the mother would not have been legally able to receive an abortion.

The “so what” defense is pretty common in medical malpractice cases.  It typically goes like the above argument.  Even if I was negligent – “so what” – it didn’t make a difference in the outcome.

What are your thoughts about this case?