Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 6, 1991 TAG: 9102060306
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
At first, Donna G. Keith claimed in a $1 million lawsuit filed in Roanoke Circuit Court that her child, now 4, would in effect have been better off never born.
But as her son, William, has defied medical odds by surviving a rare genetic disease with fewer problems than expected, Keith does not blame her doctor as much and "is tickled to death to have her child," her lawyer said.
Filed in 1989, the suit was settled Friday for an undisclosed sum.
In 1986, Dr. Mark Eggleston started and then stopped Keith's third-trimester abortion after having second thoughts about his diagnosis that her unborn child suffered from a fatal disease. He agreed to pay $7,500 to William Keith and a substantially larger, undisclosed amount to his mother.
Eggleston has since left Roanoke and is practicing medicine in North Carolina. Roanoke Memorial Hospital, where the abortion was to be performed, was also named in the suit.
Eggleston's lawyer, WilliamEskridge of Abingdon, said the doctor agreed to settle the case even though his actions probably saved the child's life.
"We think we could have defended Dr. Eggleston's decision not to perform an abortion," Eskridge said. "We felt he was on the side of God and angels on that issue."
However, Eskridge said the settlement was reached in part because a jury might have been troubled by Eggleston's decision to stop the abortion at such a late stage.
"He is satisfied that he made the right decision as far as discontinuing the abortion," Eskridge said. "But if he had to do it over again, he would have made that decision before he put the woman in the hospital."
And that is exactly what still bothers Keith, according to her lawyer, Jimmy Turk of Radford.
"In looking back on it now, [Eggleston] turned out to be right," Turk said. "But a lot of her concerns came in that she was not informed of her true condition" before and during the abortion.
The abortion was planned after ultrasound tests determined that the unborn child suffered from Meckel-Gruber Syndrome, a rare and almost always fatal genetic disease.
But William was apparently born with a milder case of the disease. "This child is an exception to the general rule," Turk said.
Even though the child is mentally retarded, has six fingers and six toes and is abnormally large, "he seems to be a very happy and contented child," Turk said.
Keith no longer contends that the boy's birth and the resulting lawsuit was a "wrongful life" action, as it was described in court papers.
"The mother and the father both love the child very dearly," Turk said. "They would not trade the child for anything in the world."
Donna Keith is estranged from the boy's father, who is also named William Keith.
The settlement came shortly after Judge Roy Willett ruled that William Keith would not be allowed to sue through his parents for wrongful life. Hospital lawyers had argued that such legal action is not allowed under Virginia law.
Even so, Eggleston and Roanoke Memorial settled the wrongful life claim "out of an abundance of caution," Eskridge said.
Although the wrongful-life issue could not have gone to a jury, Keith's mother could still have sued for a "wrongful birth" and asked for up to $1 million on such claims as malpractice and emotional distress. It was that pending claim that was settled for the undisclosed amount.
The unusual suit stemmed from the following events:
In August 1986, Keith went to Roanoke Memorial's clinic to have her pregnancy for monitored. In the 22nd week of her pregnancy, an ultrasound test discovered enlarged kidneys in the fetus.
Keith was then placed in the care of Eggleston, who discovered two weeks later that the fetus had six fingers and six toes on each hand and foot.
Eggleston diagnosed the fetus as having Meckel-Gruber Syndrome. He told Keith that her child could possibly be born without a brain and that the disease is almost always fatal. He recommended an abortion.
But first he referred her to a second doctor, whose diagnosis and recommendation turned out to be the same. Keith then decided to have an abortion through induced labor ending in a stillbirth.
She was admitted to Roanoke Memorial on Sept. 30 and was given Pitocin, a drug to induce labor. But three hours into the procedure, Eggleston had a conversation with one of his colleagues that led him to have second thoughts.
Eskridge said the colleague played "devil's advocate," asking Eggleston if he was certain the child had the disease - and if he was sure that it would be born dead.
Eggleston then decided to stop the abortion.
"Dr. Eggleston was basically talked out of it, and he goes back to the mother and says, `We can't be sure about this,' " Eskridge said.
After stopping the abortion, Eggleston told Keith that the child might be "OK" and that he was afraid the child would be born alive if the procedure continued.
The abortion was stopped, and Keith's son was born four weeks premature on Nov. 2, 1986.
Although the child was not normal, it soon bacame apparent that he did not suffer from a serious case of Meckel-Gruber Syndrome.
"When she first had the child, she was a lot more disappointed," Turk said of Keith. But as time went on and the infant became a toddler, "she lost a lot of her anger and ill feelings," he said.
by CNB