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Parents advancing in failure to diagnose malpractice case

The birth of a baby is an exciting time in the life of an Arizona family. Families place a great deal of trust in the medical staff who provide prenatal care, as well as the team that will handle labor and delivery needs. When that trust is broken, a number of negative consequences can follow. An example is found in an unusual case in which a claim of failure to diagnose one child's disability led a family to give birth to a second child who is also disabled.

The family has a 7-year-old son who suffers from Duchenne muscular dystrophy, a serious disorder that can lead to weak muscle structure, difficulty in mobility and ultimately paralysis and early death. That condition is normally diagnosed between the ages of 3 and 5. In this case, the boy was not properly diagnosed until he was 7 years of age.

By that time the parents had already welcomed a second child into their family. They then learned that families with one child who has Duchenne muscular dystrophy are looking at a 50 percent chance that any subsequent sons will also suffer from the disorder. Their younger son has been diagnosed with Duchenne muscular dystrophy, and requires a high level of medical care.

The family is suing the physician who diagnosed their older son, claiming that had they had a more timely diagnosis, they could have taken steps to avoid future pregnancies. They were originally asking for $23 million in damages. However, the original suit was thrown out, and the court ruled that the child could not pursue damages based on the simple fact that he was born. In addition, the ruling stated that because the younger son was not a patient of the physician, he did not have a basis for a malpractice claim.

In a recent appellate decision, the high court agreed with the portion of the ruling that eliminates the boy's claim that he has suffered simply from being born. However, the court also found that the boy's parents do have a legitimate claim against the physician. The case will move forward, and the parents will have a chance to argue that the physician's failure to diagnose their older son brought about the medical costs and suffering that their younger child will experience as a result of having Duchenne muscular dystrophy. For Arizona parents who have disabled children, this case may be of significant interest.

Source:, "Parents burdened by disabled son's care can go forward with $11M 'wrongful life' suit", Aimee Greene, Jan. 6, 2016

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