The Octuplets: Standard of Care and a Lawsuit?

Patients often make requests for procedures that run counter to the doctor’s better judgment. Acceding to a patient’s wish, even after informing of dire consequences, can create a cascade of legal headaches for the accommodating doctor.

An extreme example is illustrated by a rare condition known as body integrity identity disorder (a subset categorized by the esoteric label – apotemnophilia- great trivia question). Here, the patient suffers from the desire / compulsion to have his limb amputated; the premise being that he would be happier living life as an amputee. Many such individuals seek surgical treatment; and most surgeons balk at participating. A rare cohort will bend if the patient has failed all other types of treatment, such as psychotherapy or medication. Not surprisingly, just informing the patient there are significant risks of amputation, such as bleeding, infection, phantom limb pain, and death will not immunize the doctor if such risks materialize.

“Just doing what the patient wants” made headlines recently. Here, a woman with six children allegedly had eight embryos implanted by a fertility clinic. All embryos survived to birth. Although it is unclear who did what to whom, the media suggests that a fertility doctor acceded to the wishes of the patient; the patient being told that if all implanted embryos survived, some could be selectively terminated. Sidestepping any debate on the ethics of selective termination, virtually every fertility doctor, if not all, interviewed by the media stated that implanting eight embryos violates the standard of care. Most such clinics implant one or two embryos. Eight is an outlier.

The costs associated with multiple premature births must be astronomical. There are expected near term medical costs. And, it is unclear whether any of the infants will have long term medical needs. Magazines such as the National Enquirer and People will likely pay handsome sums for pictures of the happy nuclear family. But, if the money is not enough, then what?

Don’t be surprised if Mom files a wrongful birth suit. Huh? Wrongful birth actions are brought by parents to recover for the birth of an unhealthy child. The parents’ right to recover is based on the doctor’s “negligent” deprivation of the parents’ right not to conceive the child or to prevent the child’s birth. The parents can recover the extraordinary expenses associated with the birth. The working assumption in a wrongful birth suit is the child is not healthy. The extra expenses associated with the octuplet’s prematurity might be enough to push such a suit over threshold.

Wouldn’t Mom’s consent play a role in preventing such a lawsuit? Perhaps, but not necessarily. To prevail, Mom would need to prove it was forseeable that eight infants could be born from the implantation, that an octuplet birth would be associated with medical problems for at least one of the children, and that implanting eight embryos was a breach of the standard of care. Given how many fertility specialists have hit the airwaves offering their opinion, proving all of the above might not be that tough.

The take home message. When a patient demands a procedure that does not pass the “standard of care sniff test”, be careful about participating. Informed consent might not save your skin.