‘Wrongful Life’ Action : Parents of Down’s Syndrome Baby Sue Doctor

A young Huntington Beach couple filed a “wrongful life” lawsuit against a physician Wednesday, claiming they would have opted for abortion if he had performed tests before birth showing that their first child was a victim of Down’s syndrome.

Mark and Susan Robinson claim in the suit, filed in Orange County Superior Court, that the doctor was negligent in failing to perform a surgical procedure known as amniocentesis.

The physician, Dr. Burr J. Dalton, could not be reached for comment.

The right to sue for “wrongful life” was first recognized by the California Supreme Court in 1982. Although lawsuits involving such births have occurred since then, they are rare, according to lawyers.

“This child will require financial support on a lifelong basis,” said the Robinsons’ lawyer, Daniel J. Ford Jr. “It has taken an extensive emotional toll on the parents and will continue to take an emotional and financial toll.”

The child, named Brent, was born on Aug. 15, 1985. He is physically and mentally retarded “and can never expect to become independent of his parents,” Ford said.

The Robinsons twice asked Dalton to perform amniocentesis, according to the lawsuit. Mark Robinson knew his own father was adopted and was unaware of his father’s heredity or genetic background, according to the suit.

Eight months before the birth, however, Dalton reportedly said “there was nothing to worry about since she (Susan Robinson) was young,” according to the lawsuit. When Susan Robinson asked a second time for amniocentesis testing, Dalton allegedly failed to “advise her of any alternative care or testing.”

“I have been been told by doctors who have looked at this case that there is no reported instance where amniocentesis failed to detect Down’s syndrome,” Ford said. “If it ever errs, it errs in mistakenly indicating that the syndrome is present.”

The lawsuit claims that “Susan Robinson and Mark Robinson were aware of the risks involved regarding amniocentesis, as well as its cost. They felt the benefits outweighed the risks and costs but did not have the amniocentesis done because of Dr. Dalton’s advice. Had the amniocentesis been positive, (the Robinsons) would have chosen to abort the pregnancy.”

The lawsuit did not specify damages, except for $250,000 for the parents’ emotional distress.

“There is really no recovery; it is a lifelong affliction, and there’s really nothing you can do,” Ford said. Lifelong care of Brent represents an “extraordinary obligation” for the Robinsons, he added.

Ten-month-old Brent was also born with a heart defect, a condition Ford said is not uncommon for Down’s syndrome victims. “He has been very ill on numerous occasions. He is due to have open heart surgery to correct the defect in a heart valve,” Ford said.

Doctors routinely recommend that expectant mothers over 35 undergo amniocentesis testing, Ford said. The same is routinely recommended for parents with any indication of possible genetic defects.

Ford said the Robinsons, who declined to be interviewed, have no other children.