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​Last month, Hodgkinson Street Mepham (HSM) tried an interesting and complex case. In Pierce County, Washington, HSM attorneys Jeff Street and Abby Miller took on a “wrongful life” claim to trial (Pierce Co. Superior Court 14-2-09199-6). This type of claim is not valid in most states, which made for an interesting trial.

The defendants in this case include HSM’s client, a neurologist, as well as a co-defendant, an obstetrician. In the course of his practice, HSM’s neurologist client cared for a young epileptic woman. Following an allegedly incomplete informed consent discussion, the neurologist prescribed an anti-seizure medication. The anti-seizure medication in question is known to increase the risk of birth defects in expectant mothers. The patient later became pregnant, and delivered a child with birth defects related to the anti-seizure medication.

What ensued was the following claim from the child: Had her mother been given additional information about the risks of birth defects during the informed consent discussion, her mother would have chosen not to become pregnant. In other words, if it wasn’t for the defendant physicians’ alleged negligence, she would not have been born. Hence her birth was the “injury” that led to a claim for “wrongful life.” Essentially, claiming “wrongful life” in this case meant that being born was the injury for which the plaintiff was seeking compensatory damages. Most states do not allow such claims because the courts have determined that juries cannot reasonably calculate the amount of compensation appropriate for damages relating to having been born.

With such an unusual case, the attorneys of HSM and the obstetrician’s co-counsel began to narrow, focus and clarify the claims of the case through several legal motions. One of the more significant strategic choices made by HSM came from their motion to limit the potentially recoverable damages to specific economic damages. Economic damages are, essentially, monies lost as a result of negligence. In this case, the court limited the potentially recoverable economic damages to the cost of special medical treatment beyond that required by a healthy child.

The court also found that non-economic damages for pain and suffering were not recoverable for such a claim. Ultimately, the parties agreed to try the case on liability only. If the liability case resulted in a plaintiff verdict, then damages would be determined in a separate proceeding. Given the limited issues to be decided at trial, the question posed to the jury was a simple one: “Was the defendant doctor negligent, and if so, was his negligence a proximate cause of injury to the plaintiff?”

Resoundingly, the jury answered no. A unanimous defense verdict was reached after a three hour deliberation, three weeks of trial time, and hours of expert testimony.

One of the hurdles in this case for the defense was the lack of foundational evidence. Because the care at issue occurred more than 18 years before the lawsuit was filed, medical records were sparse. Since the crux of the case relied on both the parents’ and the defendant physicians’ memories of conversations that occurred 18 years earlier, the HSM attorneys relied on their client’s habits and routines to reconstruct a reasonable facsimile of the conversation the defendant doctor would have had with the plaintiff’s mother about anti-seizure medication and the risk to any future pregnancy.

“Having to argue a case without any foundational evidence, where we had to create our own platform to start on was a great learning experience,” said Abby Miller.

As HSM heads into 2016, Miller is confident that the new tools and tactics learned in this case will serve her clients—and all of HSM’s clients--well.