Parents sue over birth defect – can we blame them?

A New Zealand couple living in Australia are suing the medical professionals who allegedly failed to identify the condition for $2.5 million in damages.

Their daughter, Aria, who is now two years old was diagnosed with Aicardi Syndrome after an MRI scan revealed the condition.

Aria has impaired vision, hearing loss, scoliosis, a dislocated hip and developmental delays.

Aria’s parents, Regan Hooker and Wayne Ball, are asking for $2.5 million in damages, stating that had they known about Aria’s condition they would have terminated the pregnancy.

As I read the article I winced, thinking about the thought process this couple must have gone through in order to write that statement. Their daughter is two, she is a part of their lives, and they have said they would have aborted her. I winced because I would put money on the fact that writing that down and saying that out loud hurt like hell. I winced because they will receive all levels of condemnation for saying it, from the special needs world and outside it. I winced because I thought and said similar things after my daughter Eva was born.

I winced because if I had to guess, I would say this couple is not greedy or callous. They are not trying to hurt their daughter or wish her away. They are living in Australia where they do not qualify for government assistance for Aria’s treatments. They are saying these things and going to these lengths because the cost of raising a child with special needs and extra medical needs is huge if it is coming out of your own pocket with no support.

Eva did not live to turn one year old, but in her short life she would have spent tens of thousands of dollars of tax payer money on medical treatment. If she had lived long enough to have her two cochlear implants that number would have exceeded the hundreds of thousands easily. I live in New Zealand where her health care was covered under the public system (keep your hands off it, National) but if I lived in Australia, as a New Zealand citizen, all those MRI scans and hospital stays, therapies and doctor visits would have started to form an insurmountable debt.

It’s easy for us to say, well these parents should come home, and I’m sure they’ve considered it, but their lives are in Australia, their daughter was born there, she is Australian, shouldn’t she be eligible to receive the same care as her peers?

When Eva was born I was aware that her complications could have been picked up in utero. Some of them were, we knew all along something was wrong with one of her eyes. But then many of her complications weren’t spotted at all and others, like her heart and brain abnormalities, were spotted at 24 weeks and then by 35 weeks they couldn’t be seen anymore. They vanished and she was in the all clear.

After she was born I asked a doctor about something they had seen before she was born in a scan and he said that, “in utero scans are so unreliable. It’s like trying to x-ray someone in a swimming pool”. I almost choked on his words. The worry and stress those scans put me through when I was pregnant was excruciating and now this doctor was telling me they were a flimsy representation of reality? That even doctors don’t trust them? Why had I put so much faith into something even doctors dismiss as a guessing game?

I knew then that when there is malpractice by doctors in a pregnancy or in labour, it changes things dramatically for the family going forward. That family are sometimes eligible for funding through ACC. Funding that is not available for those of whose children have congenital conditions.

Because of the lack of information during my pregnancy, and the ever changing results which made it impossible for me to make an informed decision, after Eva was born some people, even nurses, suggested I think about doing something similar to what this couple is doing. They suggested I claim malpractice in order to gain funding through ACC. I would not be suing for $2.5 million of course, but I would be saying that  because the doctors could not diagnose Eva’s condition when I was pregnant, I had gone through with a pregnancy I might otherwise have not.

I never wanted to do that. I trusted my obstetrician and I thought she had done the best that she could. She sat with me while I cried through so many meetings. She held my hand through scans and once held a bucket for me while I vomited after lying on my back too long. She hugged me when at 35 weeks it looked like the only thing to worry about was Eva’s eye.

I also knew this was who Eva was. A traumatic birth had not caused this. Eva was not a product of an accident or error. She was Eva. Her genetics were perfectly hers, although impossible to pick up in any scan.

I’m not saying that there’s no such thing as medical malpractice, or that I wouldn’t have followed through if I felt that was what had happened in my case, but I didn’t feel that was what happened to me.

I also didn’t have the stomach, or heart, to go through with a claim which would require me to state, in the eyes of the law and whoever else was listening, that if I had known everything about Eva’s condition before 20 weeks I would have terminated the pregnancy. Because, of course, even if I know it’s what I would have done then, it’s not how I feel now.

I also lived in a country where so much of Eva’s medical care would be taken care of. While I knew there would be financial costs because of Eva’s condition, particularly through loss of work, I also knew I wouldn’t have to fundraise and set up a Go Fund me page just to get her basic medical needs met. I wasn’t in the desperate situation these parents are in because I had a level of support in place.

Having as much information available to you through pregnancy is so important if that’s what you want. Having the right to make a decision based on that information is so important. Knowing that this is your decision based on what you believe is right for you and your family, is so important.

But like the doctor told me, these scans are imperfect so you aren’t always going to have the right information. And if you don’t get the right information and so you don’t get that choice, what is also important, is knowing that the costs of raising this child, whether that the emotional, financial, or mental costs, are not so steep that this becomes a life to be avoided.

If Regan and Wayne were getting the support they needed, clearly desperately, they would not be suing. If raising their daughter, Aria, was not placing such a huge financial toll on them they would not need to resort to this action. If raising a special needs child was not such a tough way of life and a challenge, perhaps they would have gone through with the pregnancy even if they had had all the right information.

I’m not judging their decision to sue. I’m not judging the decisions they didn’t get to make, or the one they say they would have. Because they are making their decisions, both now and then, in a world that doesn’t make it easy for a family raising a child with special needs. Their decisions at 20 weeks of pregnancy were looking forward to a world where they knew some of the costs, albeit without all of the love, of this life. Their decisions now are based around trying their best to cope with a life that isn’t supported by the community they live in.

When I read this article I winced. I saw some of myself, I saw a family struggling, and I saw a family that would immediately be judged. Let’s not judge them and condemn them. Let’s judge and condemn the community and society and laws which meant they had to go to such extreme measures to take care of their daughter. It shouldn’t be that hard.

5 thoughts on “Parents sue over birth defect – can we blame them?

  1. Jan de Jager

    I can most certainly feel with Regan and Wayne !

    Back in 1986 our second child Rene was born in the Netherlands.
    After 6 months we had misgivings if everything was with him as it should be.
    To make a long story short after 3, 4 years of living between hopes and fears it became all too clear that something was wrong ……….. very wrong.
    Rene is heavily autistic and also brain damaged.

    Our disappointment was beyond comprehension.
    We couldn’t cope with him at home and from the age of 5 he has been in special care which to this day he still is.

    Back then this terrible damage could not have been detected so thankfully we couldn’t blame any doctors.
    However if we would have been aware of his condition we would not have hesitated for one second to terminate the pregnancy !

    Later in July 1996 after several years we finally got a second daughter Kimberley and a 13 year younger sister for our first daughter Danielle (June 1983).
    Thankfully Danielle is not on her own right now ………

    Later in 2000 we emigrated to Australia but Rene unfortunately had to stay behind in special care.
    Although we certainly have had great fun and love from the two daughters (now 33 and 20) I still have the constant feeling that it could have been so different, something is missing and lacking ………
    Of course we still love our Rene and hopefully we will have the money and health one day to visit him in Holland.

    I wish Regan and Wayne all the luck they can muster !

  2. catie

    Unless one of the parents is Australian or a permanent resident of Australia the child is not an Australian Citizen. In this case the child was born to parents that are Citizens of New Zealand and so wouldn’t be eligible for Australian Citizenship and benefits offered to Citizens. Her needs would most likely be covered if they moved home to New Zealand. I wonder why they haven’t?

    1. Tessa Prebble Post author

      We don’t know how long they have lived in Australia. Their whole lives could be there including well paying jobs, a house, friends, a community.
      People have been suggesting they just move home and while I’m sure this couple has considered it, that move would come with it’s own difficulties and expenses.

  3. Mama Cruz

    My family just went through a similar lawsuit, which settled. My son was born with multiple abnormalities due to a rare chromo condition, resulting in him being deafblind and profoundly intellectually disabled. There were red flags disclosed in very early ultrasound scans and later scans that were never disclosed to me (we found them later when I requested my medical records). It was clear negligence, and we settled for $1mm US pretty fast. It’s in an account for son, and helps pay for his care (and fun stuff, like Disneyland). I don’t feel bad about saying I would have aborted him if I had known, but I was a completely different person then. Disability terrified me (like it does most people, if they are being honest), and 90%+ of people abort with my son’s diagnosis. That means most people who are judging this would make the exact same choice. It’s hard to explain the level of terror you feel getting such life shattering news. I compare it to being in a burning building. If someone offers you an exit, you take it.

    All of that being said, it was hard to testify to that, but just because I feel so completely different now. My son is the greatest joy of my life. If I was me now facing that same decision, it’s an easy one. I would choose him again in any scenario…in fact, I would choose THIS LIFE again in a heartbeat. If I couldn’t have my own special child, I would go find one. It’s one of the greatest life experiences, and it’s so hard to understand why the world tells you it’s the worst. So, the old me would have chosen to abort…and I’m so glad I didn’t get the choice. I’m absolutely crazy about my son.

    When we first brought the suit, I didn’t feel that way quite yet, but I can tell you that I’m also relieved to know my son will be taken care of (and my daughter can take care of her brother later, if he outlives us). So, I don’t regret it.

    Thanks for reading this very long note. Love the blog and love your podcast. Your sweet girl reminds me so much of my fella, and your love just shines through.

    Happy to talk to you about this experience for the podcast sometime, if you’re ever interested. 🙂

    1. Tessa Prebble Post author

      Thank you so much for your comment and for sharing your story. It’s amazing how much our perspectives can change isn’t it? And it’s hard once they do not to judge ourselves for decisions we would have made, or did make. I would absolutely love to have you on the podcast to talk about your experience. I think it’s such an important story to share. I will email you!

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