Can the Octuplets Sue for Medical Malpractice? (Part 1 of 2)
News has spread far and wide of the octuplets born to Nadya Suleman at the Kaiser Permanente Medical Center in California.
In one sense, their birth and continued life is a “miracle,” as they made it to 30 weeks gestation, about 8 weeks past the threshold of viability and about 4 weeks past the point at which serious mortality or morbidity are more likely than not. Importantly, the octuplets have made it through their first week of life (sometimes referred to as the “honeymoon” period in neonatal intensive care units) without having any serious complications, like higher-grade intraventricular hemorrhages ("IVH"), a.k.a. “brain bleeds.”
Yet, it was a completely avoidable “miracle,” the same as if Captain Sully on U.S. Airways Flight 1549 had intentionally landed on the Hudson River. Multiple pregnancies are inherently high risk, with the risks increasing exponentially with each new fetus in higher order multiples. Twins are more than twice as dangerous as singletons; triplets are more than one-and-a-half times as dangerous as twins, and on and on.
These risks are well known and accepted within the international medical community, which is why some countries, like as Belgium, prohibit in vitro fertilization of more than one embryo at a time, while others, like Sweden, impose financial disincentives against the practice. Sweden’s national healthcare system covers an unlimited number of single-embryo IVF treatments but only four multiple embryos IVF treatments. Here in the United States, embryo transfers are not regulated by the government, but there are professional guidelines.
The Practice Committee of the Society for Assisted Reproductive Technology ("SART") and the Practice Committee of the American Society for Reproductive Medicine ("ASRM") produced a joint Guidelines on number of embryos transferred, which, for the 33-year-old Nadia Suleman, holds:
For patients under the age of 35 who have a more favorable prognosis, consideration should be given to transferring only a single embryo. All others in this age group should have no more than 2 embryos (cleavage-stage or blastocyst) transferred in the absence of extraordinary circumstances.
Ms. Suleman certainly had a “more favorable prognosis” considering that she had six prior children, all of them through IVF.
Which brings us to the medical malpractice: what on earth was their doctor doing?
Some have speculated that the octuplets simple couldn’t have come from IVF, since it’s so far outside the guidelines, but everything we know from Kaiser Permanente tells us that’s exactly what happened. Perhaps most troubling:
According to [Suleman's mother's] account, when her daughter discovered that she was expecting multiple babies, doctors gave her the option of selectively reducing the number of embryos, but she declined.
"Discovered?" She didn’t expect multiples from eight embryos?
It’s hard to overstate how foolish, reckless and irresponsible it is for any physician to transfer eight embryos in IVF, particularly to a young and healthy mother with a history of successful pregnancies. The Suleman octuplets have become celebrities precisely because of the rarity of their situation – which is not over by any means – since, in the past, every octuplet pregnancy in the United States has resulted either in miscarriages (frequently miscarriage of all the embryos) or the death of at least one of the neonates, possibly more.
The procedure itself was reckless; to have done it without the patient’s informed consent was unconscionable.
Tomorrow we’ll talk about the law.
To raise a couple points now, every jurisdiction I know of, following the seminal New York case Becker v. Schwartz, prohibits the claim for "wrongful life," based in part upon the idea that the law is simply incompetent to calculate the "damages" that arise as a result of being born or born with a disability as compared to never existing in the first place. Parker v. Chessin, mod. sub nom. Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978).
But that’s not really the issue here. In contrast to a "wrongful life" claim, where the person born claims they should not have been, the octuplets born here can claim that while they should have been born, one or more of the other octuplets should not have been, and that each was put in danger by the others. That may become important soon — while the first week is over without any apparent birth injury, the first month and first two years, both important milestones, are not. If it turns out that any of the octuplets has, say, bronchopulmonary dysplasia or cerebral palsy, it can hardly be said that the damages of having BPD or CP due to placental insufficiency and being born premature are philosophically impossible to calculate.
And then we’ll get to the mother’s claims; can she, for example, recover the cost of raising seven additional children?
[Continued at Part 2, see also Can a Patient Consent to Medical Malpractice? (A Followup on the Octuplets)]