# Oklahoma law: doctors can't be sued for hiding birth defects from parents **URL:** \ **Category:** Great Debates\ **Created:** [April 27, 2010, 10:53pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572 "2010-04-27T22:53:28Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [April 30, 2010, 10:22pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/221 "2010-04-30T22:22:51Z")
> [@Oakminster](#): > > [QUOTE=you with the face] > If the test results come back positive for Townes-Brocks, and the doctor deliberately withholds this information to the patient, the doctor has indeed prevented the patient from exercising her right to an abortion No, he has not. I assume you don’t wish to have a discussion about “State Action” as such is merely more inconvenient legalese. However, there is nothing in that law to prevent the woman from choosing to abort without the Townes-Brocks test. There is nothing in that law to prevent the woman from seeing another doctor. There is nothing in that law to prevent a woman from continually getting pregnant and having abortions because it amuses her to do so. There is nothing in that law\* that says she can’t have an abortion for any reason she likes, or for no reason at all. [/quote] I notice you conveniently cropped **you with the face** ’s quote. The full quote being: > [@you\_with\_the\_face](#): > > If a woman goes to a doctor and says, “Doc, please do a genetic test to determine if my fetus has [Townes-Brocks Sydrome](http://ghr.nlm.nih.gov/condition=townesbrockssyndrome). If it has the gene for it, I plan to terminate.” > > If the test results come back positive for Townes-Brocks, and the doctor deliberately withholds this information to the patient, the doctor has indeed prevented the patient from exercising her right to an abortion. It would be no different than if someone at a polling station passed out phony ballots to registered Republicans. Deceiving someone into making a decision is preventing them, just as much as if you forced them at gunpoint. Only the methodology is different, not the result. > [@Oakminster](#): > > \*I think Oklahoma has also passed, and the Governor has signed, a bill that would make it illegal to have an abortion because of the gender of the fetus. I do not have a cite handy, as I was looking for the text I posted above, but I think I saw something that mentioned it. I mentioned that on the first page, quoting [this](http://www.google.com/hostednews/ap/article/ALeqM5gN0Ufc6xuI3YRfJtMegelAkR5JcwD9F93JM00) story. > [@](#): > > Henry did sign one abortion bill into law Friday: one requiring abortion clinics to post signs stating it is against the law for anyone to force a woman to have an abortion, and that an abortion will not be performed until the woman gives her voluntary consent. > > Earlier this month, Henry signed three other abortion-related bills, including a ban on abortions based on the gender of the child and tighter restrictions on the use of the RU-486 abortion pill. > > At least two other abortion measures are pending in the Oklahoma Legislature including one that would require pregnant women to complete a lengthy questionnaire before receiving an abortion. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 10:29pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/222 "2010-04-30T22:29:22Z")
> [@Der\_Trihs](#): > > I notice you conveniently cropped **you with the face** ’s quote. The full quote being: I sure did. Reason I did that is the portion I deleted is a bad analogy, involving an entirely different body of law, and detailed rebuttal thereof would require yet another hijack of this thread. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 10:35pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/223 "2010-04-30T22:35:21Z")
On an unrelated note, I think [this](http://www.oscn.net/applications/oscn/GetCaseInformation.asp?submitted=true&viewtype=caseGeneral&casemasterID=2600031&db=Oklahoma) is the docket sheet for the pending challenge to the ultrasound law. Can’t be sure, because the pleadings do not appear to be available at that site. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 10:41pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/224 "2010-04-30T22:41:05Z")
> [@Oakminster](#): > > I sure did. Reason I did that is the portion I deleted is a bad analogy, involving an entirely different body of law, and detailed rebuttal thereof would require yet another hijack of this thread. I see I also deleted the set up, where she asked for the test, and indicated intent to abort if positive. Does not change my response, didn’t see the need to quote it. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [April 30, 2010, 10:45pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/225 "2010-04-30T22:45:20Z")
> [@Oakminster](#): > > I sure did. Reason I did that is the portion I deleted is a bad analogy, involving an entirely different body of law, and detailed rebuttal thereof would require yet another hijack of this thread. It’s a good analogy, and the “body of law” involved is irrelevant to it. The point (obviously) is that in both cases people are being deceived. If the law holds that it is allowable for doctors to deceive their patients, that’s wrong regardless of what the law says. I know there are various national medical associations; they should all blacklist, expel or otherwise disassociate any doctor who actually takes advantage of this law, for life, in order to protect the reputation and ethics of the profession. And publicize the names in public service announcements, so everyone in the world knows to never trust such a “doctor” professionally, ever. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 10:54pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/226 "2010-04-30T22:54:17Z")
> [@Oakminster](#): > > However, there is nothing in that law to prevent the woman from choosing to abort without the Townes-Brocks test. There is nothing in that law to prevent the woman from seeing another doctor. If she sees another doctor in OK who gives her the same run around, she will be not be provided with the information she needs to get an abortion. If its constitutional for a state-licensed professional to deceive patients with legal impunity just as long as the patient bases their objection on the act being a barrier to abortion, is it constitutional for a state-licensed polling official to deceive would-be voters with impunity just as long as the disenfranchised person claims this act was a barrier to voting? Because I don’t see a big difference between lying to a patient to prevent them from getting an abortion and lying to a citizen to prevent them from voting Republican. Both, that I’m aware of, are federally-protected rights. Maybe there is some lawerly difference between the two things that I’m not seeing here, though. As the law is written, a doctor could knowingly lie to a woman about her pregnancy status and not be accountable for it in some instances. If every doctor she goes to lies to her face about her being pregnant so that she can’t get an abortion, what legal recourse could she take if it’s too late for her to get an abortion by the time she diagnoses herself? Also, you never answered my question about Roe vs. Wade . Do you agree that with the legal basis for this ruling? If not, then that goes to show that there is plenty of room for judicial interpretation as it concerns the legal soundness of these laws. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 10:57pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/227 "2010-04-30T22:57:23Z")
> [@Der\_Trihs](#): > > If the law holds that it is allowable for doctors to deceive their patients, that’s wrong regardless of what the law says. We’ve already had the wrong, distasteful, very bad, and otherwise icky poo, but not obviously unconstitutional discussion. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 11:22pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/228 "2010-04-30T23:22:29Z")
> [@you\_with\_the\_face](#): > > Because I don’t see a big difference between lying to a patient to prevent them from getting an abortion and lying to a citizen to prevent them from voting Republican. Both, that I’m aware of, are federally-protected rights. Maybe there is some lawerly difference between the two things that I’m not seeing here, though. The pollworker has a legal obligation to provide a voter with the proper ballot. Intentionally providing a phony ballot is a criminal act. The doctor has no legal obligation to perform an abortion in a non-life threatening situation, and would not be committing a criminal act by refusing to do so. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 30, 2010, 11:23pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/229 "2010-04-30T23:23:51Z")
> [@AboutAsWeirdAsYouCanGet](#): > > However, in a lot of cases the parents are always " boo hoo hoo! My child isn’t “perfect”" They equate something like a mild cleft palate with something like profound mental retardation. Even if the parents were going to abort the pregnancy over a minor deformity, and even if we all agreed that this was a bad thing, I _still_ wouldn’t consider concealing medical information from the parents to be a reasonable solution to that problem. Morally speaking, the mother at least has a right to know all medical details concerning her pregnancy . . . even if she’ll make bad decisions as a result of this knowledge. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 11:34pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/230 "2010-04-30T23:34:33Z")
> [@Oakminster](#): > > The pollworker has a legal obligation to provide a voter with the proper ballot. Intentionally providing a phony ballot is a criminal act. > > The doctor has no legal obligation to perform an abortion in a non-life threatening situation, and would not be committing a criminal act by refusing to do so. Well, no duh. You know damn well I’m not arguing that docs are obligated to perform abortions. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [April 30, 2010, 11:39pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/231 "2010-04-30T23:39:58Z")
> [@Oakminster](#): > > We’ve already had the wrong, distasteful, very bad, and otherwise icky poo, but not obviously unconstitutional discussion. Calling it dismissive names like “icky poo” doesn’t make it any less a breach of professional ethics, not to mention misogynistic and outright evil. Any doctor who does such a thing deserves the destruction of his reputation and of his career. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 11:42pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/232 "2010-04-30T23:42:59Z")
> [@you\_with\_the\_face](#): > > Well, no duh. You know damn well I’m not arguing that docs are obligated to perform abortions. And that’s why your poll worker analogy fails. The poll worker is not in a situation comparable to the doctor. You’re attempting to equate two very different things. It doesn’t work. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [April 30, 2010, 11:47pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/233 "2010-04-30T23:47:07Z")
> [@Oakminster](#): > > And that’s why your poll worker analogy fails. The poll worker is not in a situation comparable to the doctor. You’re attempting to equate two very different things. It doesn’t work. It works fine; in both cases they are manipulating people, deceiving them while in a position of trust and undercutting an important institution by destroying that trust. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 11:50pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/234 "2010-04-30T23:50:23Z")
> [@Der\_Trihs](#): > > Calling it dismissive names like “icky poo” doesn’t make it any less a breach of professional ethics, not to mention misogynistic and outright evil. Any doctor who does such a thing deserves the destruction of his reputation and of his career. For the what…fifth time? sixth?..in this thread… I do not like or condone the ultrasound law or the malpractice shield. I think they are poor policy and unwise. This does not mean they are unconstitutional. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [May 1, 2010, 12:28am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/235 "2010-05-01T00:28:37Z")
There is a simple way this law can be defeated without court challenges. Planned Parenthood or other such organizations can offer a review of prenatal test results. I believe a doctor is legally obligated to release test results to a patient or to a third party designated by the patient. The test results can be evaluated (even out of state) and an indication of birth defects detected. if there is such an indication, the patient can be re-examined by a trustworthy physician. An interesting option would be to publish the names of doctors who lied to their patients - with the consent of the patient, of course. Perhaps they cannot be sued, but they could be called up on ethics charges. I would suspect the examining physician would quickly note any missing test results, which would also trigger a reexamination. Question: while the law permits the doctor to not tell the patient, how about putting the information in the patient’s medical record? If it is there, the patient could request it and see for herself. If the information is not put into the record, and thus not available for other physicians during the birth, would there be a malpractice suit possible? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [May 1, 2010, 12:30am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/236 "2010-05-01T00:30:26Z")
First, using a dismissive names like “icky poo” when referring to complaints about it undercuts your claims that you actually oppose the law. As does your constant attempt to ignore analogies about how bad it is, and selectively quoting people to leave out the more important parts of their arguments. As does your attempt to pretend that manipulating people by lying to them doesn’t qualify as preventing people from doing something. And second; so what? It’s still just as wrong regardless of how legal it is or not. It’s still a major breach of professional ethics. It still wounds the reputation and effectiveness of doctors in general if they get a reputation as a class of legally protected liars. It’s still something that medical professional groups should act on, even it the courts decide that it is just fine. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [May 1, 2010, 12:40am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/237 "2010-05-01T00:40:40Z")
> [@Oakminster](#): > > I see I also deleted the set up, where she asked for the test, and indicated intent to abort if positive. Does not change my response, didn’t see the need to quote it. Perhaps it doesn’t change your response, but I wonder if you’ve fully considered the implications of **you with the face** ’s hypothetical: > [@you with the face](#): > > If a woman goes to a doctor and says, “Doc, please do a genetic test to determine if my fetus has Townes-Brocks Sydrome. If it has the gene for it, I plan to terminate.” This seems to be a case of a patient who knows what she wants, and has affirmatively attempted to obtain it from her doctor: the results of a genetic test. Now, right there in the text of the bill, a doctor is indemnified “ **if the claim is that the defendant’s act or omission contributed to the mother’s not having obtained an abortion.** ” This seems to suggest that the physician is shielded, not only if [s]he fails to report that the test indicates a positive result, but if [s]he flat out lies and reports that the test indicates a negative result. Let’s leave wrongful birth out of it for a moment. I would like to presume that an adult has a consitutionally protected right to not be defrauded by the provider with whom he or she has contracted to receive health services. This strikes me as a constitutionally protected right to receive truthful information about the services that have been provided, including accurate information about test results. ISTM that (absent certain circumstances related to the welfare of the patient) a patient who has been lied to about the results of a test has a cause of action against the physician who has told the lie. If I’m correct in my presumptions, it appears that the state of Oklahoma has just passed into law a provision that the patient forfeits that right by saying the magic words “I intend to terminate this pregnancy in the event of test result [_X_]” Can such an affront to patient autonomy and the doctrine of informed consent being protected by the state be defended as constitutional? So back to the hypothetical: Doctor performs the genetic testing, lies about the result, and the baby is born with Townes-Brocks Syndrome, pretty strong evidence that the doctor lied. The patient lawyers up, the test results are subpoenaed and reviewed, and the lie is confirmed. Patient sues the doctor, not for wrongful birth, but for fraud. Doctor uses the shield law as a defense. Does he get to? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [May 1, 2010, 12:48am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/238 "2010-05-01T00:48:49Z")
> [@kaylasdad99](#): > > So back to the hypothetical: Doctor performs the genetic testing, lies about the result, and the baby is born with Townes-Brocks Syndrome, pretty strong evidence that the doctor lied. The patient lawyers up, the test results are subpoenaed and reviewed, and the lie is confirmed. Patient sues the doctor, not for wrongful birth, but for fraud. > > Doctor uses the shield law as a defense. Does he get to? And what if patients bring a contract, which states the doctor agrees not to lie to them about potential issues. Would this contract be unenforceable under the law? What if not revealing the defects puts the mother’s life at risk, even slightly? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [May 1, 2010, 1:16am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/239 "2010-05-01T01:16:25Z")
> [@kaylasdad99](#): > > Let’s leave wrongful birth out of it for a moment. I would like to presume that an adult has a consitutionally protected right to not be defrauded by the provider with whom he or she has contracted to receive health services. This strikes me as a constitutionally protected right to receive truthful information about the services that have been provided, including accurate information about test results. What part of the Constitution includes that right? I am not aware of any caselaw on point. > [@](#): > > Can such an affront to patient autonomy and the doctrine of informed consent being protected by the state be defended as constitutional? The statute is presumed to be constitutional. The burden is on the moving party, ie, the person challenging the law, to show how and/or why the law is unconstitutional. > [@](#): > > So back to the hypothetical: Doctor performs the genetic testing, lies about the result, and the baby is born with Townes-Brocks Syndrome, pretty strong evidence that the doctor lied. The patient lawyers up, the test results are subpoenaed and reviewed, and the lie is confirmed. Patient sues the doctor, not for wrongful birth, but for fraud. > > Doctor uses the shield law as a defense. Does he get to? I don’t know. [Fraud](http://en.wikipedia.org/wiki/Fraud) is a whole other kettle of fish. I expect some creative plaintiff’s lawyer may test that theory, along with several others. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 1, 2010, 2:10am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/240 "2010-05-01T02:10:51Z")
Not my area of strength, so I’ll ask instead of speculate: does this liability law only rmove available torts? If the women had a “gimme the whole truth” contract, could an action sound in contract against the doctor? [Previous page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=11) [Next page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=13)