Mediation Vignettes: A Parent’s Horror

The mother in the mediation was too young; probably in her mid-twenties. She was small and thin, pacing back and forth in the conference room as the day went on, slowly and continually twirling a strand of her long hair. She had been the older of two children and had watched as her brother, younger by 8 years, slowly died, as they all knew he would.

He had been born with a severe genetic defect that resulted in a fatal condition that weakened his immune system, making him susceptible to many opportunistic viral and bacterial infections. The condition and usually resulted in death between ages and 8 and 12. No one was known to have survived longer than 18 years.

She was 16 when her brother died and she had been closely involved in his care and in his eventual death, which had occurred at home with her and her parents beside his bed.

She had promised herself she would never have children, as the doctors were unable to exclude her as a carrier of the defective gene. But not everything goes as planned and when she learned she was pregnant her first inclination was to terminate the pregnancy as soon as possible. But her husband urged her to have the tests done which the doctors had assured her would reveal whether the baby she carried was free from the defect.

The tests were all negative; the laboratory technicians absolutely certain that the baby she would have would be perfectly normal. But, of course, the lab was perfectly wrong and this young woman now had a 3 year old boy, named William after her brother.

Young William’s health was already compromised and the doctors told her that his condition and death would probably mirror her brother’s.

Most of the time in the mediation had been spent with the lawyers discussing the applicable law. The mother’s lawyers saw the case as a “wrongful birth” case, providing damages for the cost of bearing, birthing and rearing a child with severe congenital birth defects. The lawyers for the laboratory saw an opportunity to clarify the law in the state and sought a ruling that the birth of any child was a divine blessing and could not form the basis for a tort, regardless of the circumstances.

As the mediation went on, however, back and forth, point and counterpoint, the young mother decided she wanted to settle. Perhaps she didn’t see herself as “Mrs. Roe.” Perhaps she didn’t want to go through a public examination of whether she really would have terminated the pregnancy. There were some comments in the record to indicate that at one time she indicated she would not have, even if the test results were timely. From statements she made in her deposition it was clear she might not have even sought legal advice in the first place had the hospital, the lab, just contacted her and acknowledged the problem.

She said something else in her deposition. She said she loved her son more than anything in the world. And then she said, she wished with all her heart that he’d never been born.

Names and details in these vignettes have been changed or altered to protect
and preserve confidentiality and privilege.

                       

John R. Van Winkle

John R Van Winkle is a full-time mediator from Indianapolis Indiana. He is a former Chair of the American Bar Association’s Section of Dispute Resolution and the author of “Mediation; A Path Back for the Lost Lawyer” MORE >