White woman sues sperm bank after she gets wrong color baby

[Lisa loves Pooh]

I'm so confused by people who say all she deserves is a refund.

Most likely, if she had had a white baby, she wouldn't have even known it was the wrong sample. But something obvious happened that alerted the couple to the fact that a wrong sample was used.

That's medical malpractice, plain and simple.

If a doctor performed surgery on your left knee, when it was your right knee that was injured, would you say "oh well, just give me a refund of the what I paid and all will be well?"

I definitely think she gets punitive (or whatever is equivilant) damages.

But--devil's advocate--

For other types of medical malpractice--physical harm is done. A surveys on the wrong knee has now injured another body part and now requires recovery while the injured body part remains injured. Increasing pain and suffering and extending the time the person may be out of work or school.

(I had knee surgery for a mensiscus tear. That was all better--but the knee had to recover from the trauma of the surgery. Heck, I had needle biopsy on a lump in my breast (benign) and I had totally not expected it to take so long to heal and it was extremely minor.)

Delivering a baby with 50% of the DNA being from a source you did not select does not cause any physical harm to mother and child in and of itself.

That could be why folks just say a refund is sufficient.

It ignores the emotional toll (race aside) of a medical error.

It ignores that such a mistake should not be possible and that sometimes punitive damages (or equivilant) are to force an entity to understand the seriousness of the matter.

And what they don't get--unlike putting a Goodyear on your car instead of a Michilen--having a baby is part of the human experience and ANY error should not be excused just because the mother and baby were healthy.

 

[kamik86]

I haven't read the whole thread however does anyone know how much donations are screened for medical history?

For example I know I have a family history of breast cancer and glacoma. If I was to look for a sperm donor I would not want to choose anyone with a history of either of those as that would make a much more likely chance the child would get it. To me that would be a much more important criteria then looks.

Due to things like this there is no way of knowing what the impacts of a switched sample could be to the child.

In the race part, there are some conditions that affect people of one race much more then others (sickle cell for example) If the baby was found to have sickle cell would those saying they should just get money back now be saying that they could get punative damages? I mean there is no guarentee the baby would have been healthy with any sample right?

 

[Lisa loves Pooh]

I haven't read the whole thread however does anyone know how much donations are screened for medical history?

For example I know I have a family history of breast cancer and glacoma. If I was to look for a sperm donor I would not want to choose anyone with a history of either of those as that would make a much more likely chance the child would get it. To me that would be a much more important criteria then looks.

Due to things like this there is no way of knowing what the impacts of a switched sample could be to the child.

In the race part, there are some conditions that affect people of one race much more then others (sickle cell for example) If the baby was found to have sickle cell would those saying they should just get money back now be saying that they could get punative damages? I mean there is no guarentee the baby would have been healthy with any sample right?

I don't think the possibility of sickle cell should factor in.

I also wonder if the sample can be prescreensd for being a carrier. I am a carrier for Cystic Fibrosis. (I think that is the one.). My husband was able to do a blood test to see of he was a carrier. He is not. So our children will not have it, though they may carry the gene for it.

I would hope this clinic also does pathological screenings and does not rely on the word of the donor on such matters.

That said--if the donor was screens for sickle cell (if possible) and was not a carrier, then their daughter carries no risk of the disease and suing for the possibility of something happening that won't -- doesn't deserve a dime. If such a test does not exist, I wonder if it is something the baby is screened for to rule it out. If they do, then same thing--no damages for something that won't happen.


A baby could also have been born with birth defects or develop cancer from the correct sample even with no medical history of such.

Eta: apparently screening and genetic testing can be done. And mom would have had to be a carrier for her daughter to actually be able to have sickle cell disease. http://www.m.webmd.com/a-to-z-guides/sickle-cell-test

 

[bcla]

Yep. I have no doubt that what she says about her town is accurate. When I graduated from college, I got a job hiring security guards for urban areas, and most were black. They would tease me when they found out where I lived, saying they wouldn't even drive in my town, fearing they'd be pulled over.

Racism still exists, unfortunately.

Why such an uncritical view of her allegations? That's frankly all we have right now. And this woman has basically thrown her neighbors under the bus, along with her family. I'm pretty sure that right now several kids living in the area are asking their parents "are we really racists?" Like I said, I'm thinking the residents of the community are going to line up to defend their honor, and be willing to travel to Illinois and pay for that privilege.

I'm also not buying that she can't find a place to get the kid's hair cut less than an hour away. Uniontown is less than 15 miles from Akron and 17 miles from Canton. Somehow the sizable black populations of those areas can figure out where to go. Heck - even I know where to go for this kind of service around where I live, and I don't have to deal with it.

Frankly a lot of the claptrap I see in her lawsuit is insulting. It's insulting to her family. It's insulting to her neighbors. It's insulting to the many multiracial families I see around me who manage to live productive lives with hardly any drama. It's insulting to the gay and lesbian couples I see around me raising their kids as best they can. If they're too emotionally fragile to handle this, I don't think they were necessarily suitable to be parents in the first place.

And "wrongful birth"? That means medical malpractice where a routine medical exams/diagnosis fails to detect a birth defect or should have informed the parents of the likelihood of a birth defect. The premise is that the family could choose to have an abortion if they were aware of the defect early enough. I hope Payton never has to see the text of the lawsuit, because that's what "wrongful birth" means.

Since we're taking things at face value, here's an interesting article with a comment from someone claiming to live in Uniontown:

http://www.thedaonline.com/opinion/article_4b88c3f0-4d17-11e4-be61-001a4bcf6878.html

First off, I live in "racist" Uniontown, just because there are less black families here does not mean this town is racist. With the uber PC environment we now live in, everyone has begun to blame racism every time someone is surly, indifferent, or even looks at them without a great big smile on their face. Did the mothers of this beautiful little girl ever stop to think that maybe it's their own attitude or demeanor that gets what they feel is a negative response from others?
This is nothing more than a money grab. I feel sorry for the little girl, being raised in a household of intolerance.

 

[Lisa loves Pooh]

Why such an uncritical view of her allegations? That's frankly all we have right now. And this woman has basically thrown her neighbors under the bus, along with her family. I'm pretty sure that right now several kids living in the area are asking their parents "are we really racists?" Like I said, I'm thinking the residents of the community are going to line up to defend their honor, and be willing to travel to Illinois and pay for that privilege.

I'm also not buying that she can't find a place to get the kid's hair cut less than an hour away. Uniontown is less than 15 miles from Akron and 17 miles from Canton. Somehow the sizable black populations of those areas can figure out where to go. Heck - even I know where to go for this kind of service around where I live, and I don't have to deal with it.

Frankly a lot of the claptrap I see in her lawsuit is insulting. It's insulting to her family. It's insulting to her neighbors. It's insulting to the many multiracial families I see around me who manage to live productive lives with hardly any drama. It's insulting to the gay and lesbian couples I see around me raising their kids as best they can. If they're too emotionally fragile to handle this, I don't think they were necessarily suitable to be parents in the first place.

And "wrongful birth"? That means medical malpractice where a routine medical exams/diagnosis fails to detect a birth defect or should have informed the parents of the likelihood of a birth defect. The premise is that the family could choose to have an abortion if they were aware of the defect early enough. I hope Payton never has to see the text of the lawsuit, because that's what "wrongful birth" means.

Since we're taking things at face value, here's an interesting article with a comment from someone claiming to live in Uniontown:

Wrong vial used. Case closed.

All her accusations of racism are unnecessary. It was medical malpractice without all the extra stuff. The extra stuff screams ambulance chaser.


I think the problem is that you aren't thinking critically about her case. You incorrectly evaluated her contract while ignoring what the bank promised. They promised vial A and then covered it up when she had selected vial B.

 

[bcla]

Wrong vial used. Case closed.

All her accusations of racism are unnecessary. It was medical malpractice without all the extra stuff. The extra stuff screams ambulance chaser.


I think the problem is that you aren't thinking critically about her case. You incorrectly evaluated her contract while ignoring what the bank promised. They promised vial A and then covered it up when she had selected vial B.

I concede that as a strict liability matter, she's probably already won. However, that she's basically taken a flamethrower to her family and the community where she lives should make her unsympathetic when it comes to awarding damages. She and her attorneys not only put those allegations in the lawsuit, but I'm guessing she was told to make the rounds with the media to tell her side. The defense will have a field day with her if this ever goes to trial. And I say this as someone who served on a civil trial jury where the sympathetic (or not) nature of the plaintiffs was key to the awarding of damages.

Sometimes exaggeration comes back to bite hard. There's an political activist here in California. I won't use his name, but he's been pretty well known over the years. He tried to burnish his image by talking about his humble roots when he came to California to live with extended relatives. He'd talk about living in a dirt poor environment where they had little to eat and few luxuries. His relatives who raised him said the stories were concocted - that they lived a reasonably comfortable life. There's also the myth here in Silicon Valley about companies run out of a garage. It was true for HP and Apple, but a lot of companies have co-opted the story to make their origins sound more inspiring.

 

[okeydokey]

I concede that as a strict liability matter, she's probably already won. However, that she's basically taken a flamethrower to her family and the community where she lives should make her unsympathetic when it comes to awarding damages. She and her attorneys not only put those allegations in the lawsuit, but I'm guessing she was told to make the rounds with the media to tell her side. The defense will have a field day with her if this ever goes to trial. And I say this as someone who served on a civil trial jury where the sympathetic (or not) nature of the plaintiffs was key to the awarding of damages.

Sometimes exaggeration comes back to bite hard. There's an political activist here in California. I won't use his name, but he's been pretty well known over the years. He tried to burnish his image by talking about his humble roots when he came to California to live with extended relatives. He'd talk about living in a dirt poor environment where they had little to eat and few luxuries. His relatives who raised him said the stories were concocted - that they lived a reasonably comfortable life. There's also the myth here in Silicon Valley about companies run out of a garage. It was true for HP and Apple, but a lot of companies have co-opted the story to make their origins sound more inspiring.

And none of this makes a bit of difference in this case. The sperm bank screwed up, she is suing them and will most likely win a sizeable settlement. The fact that you consider her actions unsavory makes no difference.

 

[bcla]

And none of this makes a bit of difference in this case. The sperm bank screwed up, she is suing them and will most likely win a sizeable settlement. The fact that you consider her actions unsavory makes no difference.

She'd better hope that this doesn't go to court, if the sperm bank or its insurance company insist on defending. How unsavory her actions are to a jury is very important when it comes to damages. You can research numerous cases where a jury found a technical violation of the law or a contract, but then went on to award $1 because they felt the plaintiff didn't deserve more than that.

 

[Kimberlyann11]

Why such an uncritical view of her allegations?

I'm not the one you asked - but I will answer: Because I lived somewhere very similar demographically. The majority of people I grew up with will swear up and down they aren't racist - but they lie.

 

[okeydokey]

She'd better hope that this doesn't go to court, if the sperm bank or its insurance company insist on defending. How unsavory her actions are to a jury is very important when it comes to damages. You can research numerous cases where a jury found a technical violation of the law or a contract, but then went on to award $1 because they felt the plaintiff didn't deserve more than that.

And this is where I think you are very wrong. You think her actions are unsavory but that doesn't mean they are, or that others will think so. I think the jury members will be sympathetic to her and award her large damages. The sperm bank is on the losing side of this amd should settle for a large amount.

 

[A_Princess'_Daddy]

She'd better hope that this doesn't go to court, if the sperm bank or its insurance company insist on defending. How unsavory her actions are to a jury is very important when it comes to damages. You can research numerous cases where a jury found a technical violation of the law or a contract, but then went on to award $1 because they felt the plaintiff didn't deserve more than that.

It is obvious that this case has touched a nerve somewhere in your mind or soul, but your understanding and representations of the judicial process are not accurate. After finally appearing to concede that the waiver you were quoting did not--and could not--waive such an error, you are now stating with equal certainty that she will be eviscerated at trial and awarded a mere token sum. The former was incorrect and the latter is far, far, far from a foregone conclusion. Yes, we can all google and find cases of what you are stating, but the number of instances of what you are describing actually happening are far, far less common than you seem to be asserting. As are the massive, multi-million dollar runaway judgements that others like to decry as excessive. Nearly all cases like this settle out of court, with confidentiality agreements, and this will almost certainly settle as well because while she, the plaintiff may be "destroyed" on the stand (which rarely happens in real life; that is more a construct of Hollywood), the sperm bank will equally have its business practices, apparent lack of medical and records controls, apparent lack of concern for their patients, etc. equally played out in court and it will equally destroy their business. I think it is likely that they can far less take that chance than she can, as they have far more to lose. And their losses would far exceed their exposure in a jury award, which they could likely survive and would likely be paid by their malpractice or E&O insurance regardless (I have no idea how sperm banks are insured), because they stand to in the complete destruction of their reputation.

 

[Lisa loves Pooh]

She'd better hope that this doesn't go to court, if the sperm bank or its insurance company insist on defending. How unsavory her actions are to a jury is very important when it comes to damages. You can research numerous cases where a jury found a technical violation of the law or a contract, but then went on to award $1 because they felt the plaintiff didn't deserve more than that.

Unless she switched the vials herself--the bank doesn't have a leg to stand on. Her status alone and her anxieties of treatment even if this community weren't racist is what matters.

She would have had to have committed fraud during the process of selection and insemination to lose.

Their acknowledgement is admission of guilt.

Doesn't matter if we think she is a whack-a-Doo racist trying to get rich. In the grand scheme is isn't asking for much and I actually could see a jury sympathizing and offering her more.

 

[Lisa loves Pooh]

It is obvious that this case has touched a nerve somewhere in your mind or soul, but your understanding and representations of the judicial process are not accurate. After finally appearing to concede that the waiver you were quoting did not--and could not--waive such an error, you are now stating with equal certainty that she will be eviscerated at trial and awarded a mere token sum. The former was incorrect and the latter is far, far, far from a foregone conclusion. Yes, we can all google and find cases of what you are stating, but the number of instances of what you are describing actually happening are far, far less common than you seem to be asserting. As are the massive, multi-million dollar runaway judgements that others like to decry as excessive. Nearly all cases like this settle out of court, with confidentiality agreements, and this will almost certainly settle as well because while she, the plaintiff may be "destroyed" on the stand (which rarely happens in real life; that is more a construct of Hollywood), the sperm bank will equally have its business practices, apparent lack of medical and records controls, apparent lack of concern for their patients, etc. equally played out in court and it will equally destroy their business. I think it is likely that they can far less take that chance than she can, as they have far more to lose. And their losses would far exceed their exposure in a jury award, which they could likely survive and would likely be paid by their malpractice or E&O insurance regardless (I have no idea how sperm banks are insured), because they stand to in the complete destruction of their reputation.

 

[Allison]

It is obvious that this case has touched a nerve somewhere in your mind or soul, but your understanding and representations of the judicial process are not accurate. After finally appearing to concede that the waiver you were quoting did not--and could not--waive such an error, you are now stating with equal certainty that she will be eviscerated at trial and awarded a mere token sum. The former was incorrect and the latter is far, far, far from a foregone conclusion. Yes, we can all google and find cases of what you are stating, but the number of instances of what you are describing actually happening are far, far less common than you seem to be asserting. As are the massive, multi-million dollar runaway judgements that others like to decry as excessive. Nearly all cases like this settle out of court, with confidentiality agreements, and this will almost certainly settle as well because while she, the plaintiff may be "destroyed" on the stand (which rarely happens in real life; that is more a construct of Hollywood), the sperm bank will equally have its business practices, apparent lack of medical and records controls, apparent lack of concern for their patients, etc. equally played out in court and it will equally destroy their business. I think it is likely that they can far less take that chance than she can, as they have far more to lose. And their losses would far exceed their exposure in a jury award, which they could likely survive and would likely be paid by their malpractice or E&O insurance regardless (I have no idea how sperm banks are insured), because they stand to in the complete destruction of their reputation.

Thank you.

 

[mjkacmom]

I'm not the one you asked - but I will answer: Because I lived somewhere very similar demographically. The majority of people I grew up with will swear up and down they aren't racist - but they lie.

Yep! People here are more accepting of black families now (all 10 or so of them), but seem not so accepting of the increasing Indian population - a them vs. us mentality.

 

[JanaDee]

She'd better hope that this doesn't go to court, if the sperm bank or its insurance company insist on defending. How unsavory her actions are to a jury is very important when it comes to damages. You can research numerous cases where a jury found a technical violation of the law or a contract, but then went on to award $1 because they felt the plaintiff didn't deserve more than that.

I'm pretty sure the sperm bank will shut their mouths and pay up for their mistake.

What you call her "unsavory actions" have nothing to do with the sperm banks colossal screw up.

 

[bcla]

And this is where I think you are very wrong. You think her actions are unsavory but that doesn't mean they are, or that others will think so. I think the jury members will be sympathetic to her and award her large damages. The sperm bank is on the losing side of this amd should settle for a large amount.

Like I said, I think she's taken a flamethrower to her family and her community. Those bridges are burned. In the meanwhile, she, her partner, and the kid still live in Uniontown and admittedly can't afford to move. If she thinks that her neighbors were staring at the kid due to her ancestry, then she's going to have to put up with the death stares of people who are justifiably angry that she went to the press with her allegations that the place is filled with closest racists. My comment didn't have so much to do with whether or not that would factor in a settlement or court proceeding, but that she was willing to alienate her family and her neighbors over the possibility of getting money. At the very least, she could have filed this quietly without going to the press and/or decline to speak to the press if asked.

And if this ever gets to a jury trial (and I fully realize it might not) then the sperm bank will seek out community members of Uniontown and I'm pretty sure they'd be willing to testify like the township trustee has gone to the press. There's a certain right to a defense. I've served on a civil jury, and it doesn't work like it does in the press where only one side gets to air its complaint. As it stands, the sperm bank is clamming up on the sound advice of their attorneys.

And in all this, I have the suspicion that the sperm bank will likely close as a result of the bad publicity, which is well deserved. At this point, this case is going to come up when people are looking for a sperm bank or who might be looking to be donors, and their cash flow is going to dry up pretty quickly. I wouldn't be surprised if they declared bankruptcy knowing that they can't survive the bad publicity.

 

[Angiepea]

not sure how these sperm banks work, re information, but my auntie is Indian my Uncle is white, they had white with blue eyed babies. Then my cousin had a baby with a white man and produced a child that looked like it was from a mixed raced couple, so what I am trying to say not everyone knows their background, so you could produce a child of colour without knowing who you really are.

 

[wilkeliza]

not sure how these sperm banks work, re information, but my auntie is Indian my Uncle is white, they had white with blue eyed babies. Then my cousin had a baby with a white man and produced a child that looked like it was from a mixed raced couple, so what I am trying to say not everyone knows their background, so you could produce a child of colour without knowing who you really are.

They ask extensive background questions. If your cousin was a male and donate sperm they would answer that their mother is of Indian decent and their father caucasian. Your cousin's baby is in fact mixed race as it is 1/4 Indian and 3/4 caucasian it doesn't just look mixed race. Even though your cousin looks "white" she is still biracial.

I actually read the court filings today and the way the error happened is completely unacceptable. Not only did the sperm bank fail but her local doctor did as well because they never confirmed the vials with the women they only read them to her once the error was discovered and she called her doctor and asked for the single vial left that was from that donor.

 

[scrapquitler]

not sure how these sperm banks work, re information, but my auntie is Indian my Uncle is white, they had white with blue eyed babies. Then my cousin had a baby with a white man and produced a child that looked like it was from a mixed raced couple, so what I am trying to say not everyone knows their background, so you could produce a child of colour without knowing who you really are.

That is NOT what happened in this case. The woman in this lawsuit ordered sperm #380 and they inseminated her with sperm #330. They flat out gave her the WRONG sperm.