The “wrongful birth” suit claims the parents would not have conceived their son if doctors had warned them about the genetic risks, OregonLive reports.
The parents, Kerry and Scott Tomlinson, allege that their pediatrician and staff at Legacy Emanuel Medical Center were negligent, having failed to recognize and tell them about the early signs that their oldest son suffered from Duchenne muscular dystrophy.
The Mayo Clinic says muscular dystrophy is a group of diseases that cause loss of muscle mass and progressive weakness. In this disorder, abnormal genes interfere with proteins that are necessary for the formation of healthy muscles.
A quick look at Duchenne muscular dystrophy
Around half of all people with muscular dystrophy have this form. Girls can be carriers and may be mildly affected, but the disease usually affects boys, the Mayo Clinic reports.
About one-third of boys who have Duchenne muscular dystrophy don’t have a family history of this disease, and this may be because the gene involved is possibly subject to sudden abnormal change (known as spontaneous mutation).
The clinic reports that the symptoms of Duchenne Muscular Dystrophy usually appear between ages two and three. They may include:
• Frequent falls.
• Difficulty getting up from a lying or sitting position.
• Trouble running and jumping.
• Waddling gait.
• The child may walk on his toes.
• Large calf muscles.
• Muscle pain and stiffness.
• Learning disabilities.
OregonLive reports that this disorder is characterized by muscle weakness, the loss of the ability to walk, paralysis, and premature death.
The Tomlinson’s older son, Manny, wasn’t diagnosed with the disorder until he was seven, the appeals court summary reports. By this time, Kerry Tomlinson had given birth to Teddy, their younger son.
Then the couple learned that parents who conceive one son with Duchenne muscular dystrophy are 50 percent likelier to have future sons with the disorder, and that is what happened to Teddy.
In the initial lawsuit, filed in 2011, the Tomlinsons asked for $23 million; which included $10 million for their pain and suffering, $10 million for Teddy’s pain and suffering, along with $2 million for Teddy’s loss of earning potential, and lastly, $1 million for the boy’s care, Parenting reports. This was tossed by a judge who wasn’t certain about the liability of Legacy Emanuel Medical Center because only Manny was their patient.
Last week, the appeals court agreed with this, saying the Tomlinsons could pursue the suit, but dismissed the $12 million that had been sought, on the grounds that “according to defendants, Teddy alleged that he has been damaged by the fact of his existence. Significantly, defendants asserted that ‘life’ has not been recognized in Oregon as a compensable harm.”
The law does allow plaintiffs to sue doctors for damages suffered — and that’s even if the plaintiffs weren’t directly patients of the doctors, and the appeals court ruled that as parents, the Tomlinsons claim was legitimate, OregonLive reports.
Manny is now 12, and Teddy is seven.
