Portland couple wins 'wrongful birth' lawsuit

Child born with Down syndrome even though tests indicated no chromosomal abnormality

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Child born with Down syndrome even though tests indicated no chromosomal abnormality

Ariel and Deborah Levy were awarded almost $3 million in their ‘wrongful birth’ lawsuit against Legacy Health System in Portland, Oregon. The Levys sued Legacy Health System because their daughter, Kalanit, was born with Down Syndrome despite Legacy medical tests to the contrary.

Legacy Health loses 'wrongful birth' suit. Photo via Wiki Commons.

The Levys first learned that they were pregnant with Kalanit in November of 2006, when Deborah was 34. Because of Deborah’s age, the Levys were concerned that the child would have a genetic disorder and pursued genetic testing.

The Oregonian reports that Dr. Thomas Jenkins, a Legacy doctor, performed a chorionic villus sampling (CVS) test when Deborah was 13-weeks pregnant. During this test, a small amount of tissue from Deborah’s womb was analyzed. The results indicated that the baby had no chromosomal abnormalities.

Subsequent ultrasounds showed abnormalities that may indicate Down syndrome. The Levys were continually reassured that their child did not have Down syndrome. However, about a week after Kalanit’s birth, the family learned that she indeed did have Down syndrome.


The lawsuit claimed that Dr. Jenkins did not test tissue from the baby but instead tested tissue from Deborah, giving an inaccurate result. Despite abnormal results on further ultrasounds, the family was never advised to have an amniocentesis. The couple claim that had they received accurate results from the test, they would have aborted the pregnancy.

The jury found Legacy to be negligent. The Levys were awarded $2.9 million dollars to pay for the extra care that Kalanit will need. According to experts, Kalanit is not expected to be able to live on her own.

David K. Miller, the Levys’ attorney, has expressed that this lawsuit was not about whether or not the pregnancy would have been aborted but about the Levys’ love for Kalanit. In a statement to KATU Channel 2 in Portland, Miller explains, “These are parents who love this little girl very, very much. Their mission since the beginning was to provide for her and that’s what this is all about.”

In an MSNBC article, bioethicist Dr. Art Caplan states that ‘wrongful birth’ suits are rare as tests are very accurate with very few errors. Additionally, parents wrestle with the idea that the children will feel unwanted or they will be judged by peers.

Robert Keating, Legacy’s attorney, contends that the test results were accurate because Kalanit has a mosaic form of Down Syndrome where a significant number of her cells do not contain the chromosomal abnormality.

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  • jdrch

    I don’t get the logic behind this at all. The parents claim they love the child, but wrongful birth suggests they think the child should not have been born. How can you claim to love someone you’d prefer didn’t exist?

    • marvinmcconoughey

      Jdrich, I get it.  The parents could have had another baby, which they would then most probably have loved dearly, and which would have been normal.  Instead, the mother brought this baby to term, now knows that it is deeply flawed but, as mothers have done throughout history, loves the defective child while never saying much aloud about the perfect child that she could have had, and which her heart longs for.  She may have another child, quite normal, but it will be born into a home where much of the parents’ time and focus is unavoidably focused on the child that demands the most attention, even though it offers the least hope.  This is an exceptionally sad story, and my heart goes out to the parents.

      • jdrch

        Embryos, which result from a unique sperm and egg, are *not* fungible. i.e. wishing that a particular embryo wasn’t born means you effectively wish that person did not exist, period. Fortunately (for the child), this child will never be sufficiently intelligent to understand how his parents truly feel about him. The lawsuit says they regret the child’s existence. No way around that fact.

        • marvinmcconoughey

          While I respect your right to your own viewpoint, I am skeptical that it represents the  majority view of those who discover early that they will bear a Down’s Syndrome child if it is carried to birth.  The numbers suggest that  a majority choose to avoid having a Down’s child.  What the lawsuit said is best determined by the court transcript.

          • jdrch

            You’re right that it doesn’t represent the majority viewpoint. However, majority view != logical correctness. My issue isn’t whether they should have aborted the child, but rather that their lawsuit implies that they do *NOT* love the child as they claim.

            Clearly that’s not something they can be made to bear any concrete consequences for, but it speaks volumes about their personal principles and who they are as human beings.

      • Deeply flawed? Defective child? “focus on the child that demands the most attention, even though it offers the least hope”? There is something wrong with you. Heartless people are “defective”!!

        • marvinmcconoughey

          Dear Farrah, you may be willfully misconstruing what I said, but I will make an effort to communicate.  The human flaw to which I refer–Downs’s Syndrome–is a known reality which has been deeply researched for many years. It  exists whether or not we respect its victim.  No parent wants a child to have Downs Syndrome.

          If the parent does well by a child with Downs Syndrome, she will spend more time on it than if it had been born normal.  Tell us, if you have a child with Downs Syndrome, wouldn’t you have also loved your child  it not had the syndrome?  You surely did not wish it upon your child.

          Both child and parents deserve sympathy and have it, from me.

          • I have three children- My youngest is 3 and has MDS. My older two children fight over who GETS to play with her. My daughter has therapies and doctors appointments more so than “typical” children. But my other 2 know they are loved just as much. What kind of a person could say that a child is “defective”. . If you dont have a child in your life who has downs than dont comment so harshly. Show some sympathy that you say you have. 

          • MANY,  MANY families choose to ADOPT children with DS.  Some families even choose to adopt more than one child with DS.  There is CHASK and the National Down Syndrome Adoption Network that finds families for children born i the USA with DS.  They place many children every year.  Reece’s Rainbow is a charity that helps many DS kids abroad get US and Canadian families.  Hopscotch Adoptions also has a DS project where they place many DS kids from E. Europe.

          • marvinmcconoughey

             Your love for your child is admirable and to be respected.  Surely you would not want a parent who might be incapable of that same level of love to be responsible for a Down’s syndrome child.  Not all parents have the freedom of time, the money, or the stamina to give quality care to a Down’s child for as long as he or she needs it.  Experts make it very clear that Down’s children vary greatly in their special needs. It is a risk that some conscientious women might choose to avoid.

  • lord_stirling

    Hey, it’s never too late. If we’re going to embrace pre-christian attitudes to the value (or non-value) of life, why not infant exposure as well?

    Of course, there’s always those pesky shepherds who come along and save the unwanted brats…

  • Well folks what we have here is a really dumb jury. I’ll bet you can find thousands of people out there who would have aborted their kid if they had known how they were going to turn out…normal or not.  This suit should have been dismissed as a matter of law.  I will bet Legacy appeals and the case settles quietly at some point after that. This is just bad law all the way around. One more reason to avoid the courthouse.

  • kindamara

    These people are despicable.  Since they would have aborted the child, why don’t they just put her up for adoption now.  Spare the child the pain of knowing she was unwanted and would be a burden 0n the “parents”.  I hope child services keeps an eye on these people.  They love the money they sued the hospital for more than this child.

    • marvinmcconoughey

      ” Since they would have aborted the child, why don’t they just put her up for adoption now.”  Why should they?  As other parents of Down’s children have posted, they now love their imperfect child, without at all wanting their child to be other than normal .  Loving one’s child is normal, even when the initiating circumstances leading to that birth (rape, incest, failed natural timing, etc) are regretted.  A separate social issue here is that the parental lawsuit will provide future doctors to be more careful in testing for the possible presence of Down’s Syndrome.

      • If they love this child NOW.. they should not have a lawsuit to receive financial gain. They don’t deserve this bundle of joy that they would’ve killed. I have a child with Mosaic Down Syndrome.. She means the world to me and anyone who meets her. 

        I do believe there may have been negligence. But to say “I would’ve aborted had I known” is a horrible thing for any parent to say. Wrongful Birth? Maybe some sort of malpractice.. if in fact they did test the mothers tissues and not the childs. But if they would’ve killed her and are blatantly saying it– than they should do the child good and give her to someone who wants her.. now and always. 

        • I agree.  Why do those people see it as a “wrongful birth”?  And Mosaic Down Syndrome only affects HALF of the chromosomes.  That means that half of the chromosomes are normal.  Of course the test could have said no Downs, only 1/2 of the girl’s chromosomes are Downs.

    • 1badnews

       not so fast. They are NOT horrible people. We live in a country that gives us certain rights. If you don’t like these rights go live in a country that is still in the stone ages!
       They love the child very much. Get educated on the case. The hospital did a test wrong. Period. They should never do this to another family again.

  • I have a child with Downs and he is the sweetest, most wonderful human being I have ever come in contact with. Sure he has problems, but I can’t imagine our family without him. Our doctors did not detect his Downs before he was born, but instead of looking for someone to sue, we went to work to learn all we could and provide love for our little gift. I don’t think we are entitled to millions of dollars  more than any other family of a child born with this or other such conditions. 

  • I honestly don’t understand how people can judge this family. If I were in their shoes, I would do the exact same thing. I would never willfully bring a handicapped child into this world. Call me cruel, call me evil all you want. Handicapped individuals are wonderful people and the same goes for their caregivers, but I am not prepared mentally, physically, or financially for such a task. I’m glad this family won, and I hope this sends a message to doctors!

    • I hope this sends a message to people like you who are Godless disgusting individuals.  Because of attitudes and morals like this, our country is doomed to bear the full burden of God’s judgment.  This couple is effectively stating that they would have murdered this child if they would have known it wasn’t going to be perfect. How in the world could anyone possible agree with this?  I pray that God will have a special judgment for people like this, and people like you!!!

      • marvinmcconoughey

        Seems to be a misunderstanding here, Chris.  Ms. Golden said nothing about her religious views and nothing in her statement supports drawing your description of her as “a Godless disgusting” person.  What special judgment is it that you wish upon her?

        • People shouldn’t abort because of Down Syndrome.  People with DS are wonderful people.  They have a right to life like everyone else.

          • marvinmcconoughey

             Children with Down’s syndrome can indeed be fine people.  Not all are
            and no one should assume that a special merit attaches to the victims of
            Down’s syndrome. Many develop serious acting out disorders as they grow older, and there is considerable advice available on how best to cope with the challenges involved.  I support your freedom to give birth to Down’s syndrome child should fate present that choice, and I understand and respect the right of those who disagree with you to not bear Down’s syndrome children.  In short, I believe that your actions and preferences should not override those of people of different persuasion.   

    • AppaledByThis

       People need to take more responsibility for them selves and quit blaming Doctors. Nothing is stopping you from insisting on certain types of care or from doing research of your own. Doctors are fallible just like everyone else. I don’t believe this was malicious. There are millions of programs to help families you just have to be willing to put in the time and effort by putting your child first. Just because you are not “ready” to handle a situation like this makes you selfish, would you kill any other child if you found that you were “not prepared mentally, physically, or financially for such a task.”?

      • 1badnews

        I happen to be close to the family. This child is loved and loved. No one seems to get the point at hand. A WOMAN SHOULD HAVE THE RIGHT TO CHOOSE. A test was done wrong and the family has a right to be taken care of. Why do the hospital’s offer this test if it was not something for the family to consider? Did you all know that over 80% of woman abort because they found out the baby would have DS. Shame on all of you out there that can’ be respectful of a woman’s right to choose. Live back in the stone ages.

      • marvinmcconoughey

         The parents did take responsibility.  They made specific efforts to seek factual medical information and the medical system failed them.  Doctors, as you said, “are fallible just like everyone else.”  If you believe that parents should take responsibility, which these parents attempted to do, then why should professional, trained, medical personnel be held to a lower standard?

        It is important here to point out where the norm is.  The normal event is that women who become aware of a high risk of bearing a Down’s syndrome child choose not to do so. 

  • I too have a son with Down Syndrome.  I was only 19 years old when he was born and although his diagnosis came as surprise to me, I love him unconditionally.  15 years later, has it been difficult? Yes, but definately worthwhile. Has it changed my life? Absolutely.  Not only has he changed me and my life for the better, he has positively affected many lives. He is a social butterfly, loving, respectful of all living beings, and doesn’t hold grudges.  His life was motivation to educate myself in regards to Down Syndrome, get my priorities straight, and provide him the life he deserves.  I am saddened by this story, disheartened by some of these comments, and wish that more of society would understand that children/people with Down Syndrome are only limited in what they accomplish by those that put limits/restrictions on their abilities. 

  • cjd1971

    To sue a Physician because an imperfect test gave you an imperfect child just seems baseless. If the child was truly loved unconditionally ,the time spent pursuing  this lawsuit would have been better spent learning all one could about Down Syndrome children and how to best love and care for them. I think this is indicative of an extremely selfish society,these people may have been raised by selfish parents and now will raise selfish children. Thankfully the DS child may remain unaware of  the parents desire to abort any imperfect child. I worry about any “normal” child raised in any extremely selfish household.

    • marvinmcconoughey

       I think that suing doctors should be rare and very well justified before it is done.  That said, this case involved much more than the inherent uncertainties that come with medical practice.  The unanimous verdict came only after jurors had the opportunity to hear, and evaluate, testimony from both sides.

  • What’s  “normal” ? 

    You could have a physically perfect child who ends up with autism.  There’s no testing for autism when you are pregnat.

    You could have a physically and mentally perfect child who ends up being a drug addict, prostitute, rapist, serial killer or other criminal.

    You could have a physically and mentally perfect child who ends up abusing his wife and children and even his own parents when they are older.

    34 is not that old.  I had my first at 29 and my second at 31 – I never even thought about Down’s being a problem, even though my sister-in-law has Downs.

    Finally,  MANY people who have Downs live wonderful, full lives.  Some stay with their families and some are in group homes.  Many have jobs, real $$ paying jobs.  Some get married and have families of their own. Some even go on to be actors and actresses on TV and in movies!

    As to the parents, well, the only reason I feel sorry for them, is they really have no souls.

  • AppaledByThis

    These people are greedy and selfish! The fact that they would have aborted this baby shows that they do not know the meaning of unconditional love. They didn’t want the responsibility to care for a human life, they wanted a possession to show off. Testing is never 100% and you are told this when you are tested. If they were really so worried about this than they would have pushed for more testing when they were unsettled after further ultrasounds. Take some responsibility and quit finding someone to blame. If they felt they were not equipped  to handle this there are people out there who can not have children that would have gladly taken this baby and given her a truly loving home. I feel sorry for this little girl because she is stuck in a home with cruel selfish parents who will never put her needs first.