# 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:** 7\ **Page:** 13
**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, 2:15am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/241 "2010-05-01T02:15:52Z")
> [@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. > [@Oakminster](#): > > What part of the Constitution includes that right? I am not aware of any caselaw on point. That’s what I get for trying to take shortcuts. Do I, or do I not, have a constitutionally protected right to enter into legally enforceable contracts? Do I, or do I not, have a constitutional right to petition the courts for redress when I have been defrauded, in any legally enforceable contract? Are implied contracts considered legally enforceable? If the answers to these questions are “no,” then I am _way_ out of my depth. ---
**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, 2:44am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/242 "2010-05-01T02:44:33Z")
> [@kaylasdad99](#): > > Do I, or do I not, have a constitutionally protected right to enter into legally enforceable contracts? Not an unfettered one, no. You could not enter into a contract with me to load sacks on your truck for $4.00 per hour, for example, because the state has decided that working for $4.00 per hour is against public policy. Interesting historical sidenote: back in the day, 1905, the Supreme Court actually decided this question the other way: in _Lochner v. New York_, the Court said that New York could not limit the number of hours bakers had to work, ciring the Due Process Clause and how it protected the “right to contract.” Thus proving that conservatives are perfectly capable of claiming the Constitution says something in the penumbras and emanations that it doesn’t say in the text. However, that golden age ended with 1937’s _West Coast Hotel Co. v. Parrish_, which reversed Lochner and held that a state’s right to set a minimum wage trumped the individual’s due process “right to contract.” So… you have a right to contract, but it is subject to the state’s definitions of public policy and cannot violate that public policy. > [@](#): > > Do I, or do I not, have a constitutional right to petition the courts for redress when I have been defrauded, in any legally enforceable contract? Yes, in the sense that the law must provide you both procedural and substantive due process. The law can impair that right in any number of ways – for example, making you exhaust administrative remedies before going to court. And rememebr that your contract, to be “legallyenforceable,” cannot flout public policy of a state, defined by that state’s laws. > [@](#): > > Are implied contracts considered legally enforceable? In some cases. This is a question that is highly dependent on the particular facts. Hope this helped! ---
**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, 2:48am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/243 "2010-05-01T02:48:45Z")
> [@Bricker](#): > > 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? I’m not a med mal guy either, but on it’s face, the law seems to only remove the torts of wrongful birth and wrongful life that are based on a claim that a wrongful act or omission contributed to the mother’s not having an abortion. It explicitly does not remove liability for acts or omissions that could have prevented maternal injury or death, or that could have improved the health of the child at or during birth.–ie, negligent pre-natal care still appears to be actionable. I think, in theory, a breach of contract action could lie…but doubt many doctors planning to use the malpractice shield would sign such a contract. In the absence of a written contract…hell…I dunno. I suspect most existing contracts are going to be mostly a promise to pay for services rendered, with no explicit guarantee that said services will be of any particular level of quality. Does the statute define by implication the standard of care/quality of service a patient has a right to expect in Oklahoma? Also, contract damages may not be adequate to compensate plaintiff…different measures apply for different scenarios. I vaguely recall something about an expectancy measure vs a reliance measure vs a restitution measure. A written contract might include a liquidated damages clause, limiting recovery to the amount paid for the treatment. Is that unconscionable? Are the contracts in question contracts of adhesion? Are they negotiated at arms length? Like I said back on page 1–whole lotta employment for lawyers in Oklahoma over this stuff. ---
**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, 3:36am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/244 "2010-05-01T03:36:07Z")
> [@Oakminster](#): > > Also, contract damages may not be adequate to compensate plaintiff…different measures apply for different scenarios. I vaguely recall something about an expectancy measure vs a reliance measure vs a restitution measure. A written contract might include a liquidated damages clause, limiting recovery to the amount paid for the treatment. Is that unconscionable? Are the contracts in question contracts of adhesion? Are they negotiated at arms length? This is why I stuck to criminal law. ---
**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:** [May 1, 2010, 5:18am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/245 "2010-05-01T05:18:34Z")
> [@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. Of course they are comparable. In both situations someone who certified by the state as a competent and ethical professional is using deception to prevent someone from exercising their rights. You say a poll worker has a legal obligation to provide a voter with an authentic ballot. Why you think that is material objection to my analogy beats the hell out of me, but why don’t we try some more scenarios out. Let’s say a poll worker lies and tells voters that election day was the previous week so that they don’t show up to vote on the right day. Or let’s say that a poll worker deceives voters into thinking their ballots are not anonymous so they’ll feel intimidated into going with the more popular choice. Or let’s say the polling worker makes registered Republicans que up for hours in the rain while they let everyone else stay warm and dry. Stop me when any of this strikes you as unconstitutional. Voting is a right. So is abortion. While doctors are not obligated to provide an abortion, they can not use their position as a state-backed authority, with legal impunity, to prevent someone from making a federally-protected medical decision of their own free choosing. Because this infringes on a woman’s rights. It is no different than an state official abusing their authority to prevent someone from voting when that person is well within their rights to vote. As I already pointed out, if we take this shitty law to its logical conclusion, doctors can get away with misleading patients into thinking they aren’t pregnant, simply so these women can’t have abortions. Preventing patients from sueing these doctors on the grounds that their deception prevented them from getting a medical procedure that they are entitled to get is incompatible with case precedence (Roe v Wade) that establishes abortion as a right. If it’s not permissable to make a claim that your rights have been violated in a court of law, then what the hell _can_ you claim? It suggests that rights mean nothing. The more I think about this, the more I’m convinced that this is not just ethically indefensible but also legally. ---
**Author:** ![AboutAsWeirdAsYouCanGet](https://avatars.discourse-cdn.com/v4/letter/a/22d042/32.png) [@AboutAsWeirdAsYouCanGet](https://boards.straightdope.com/u/AboutAsWeirdAsYouCanGet)\ **Post date:** [May 1, 2010, 7:24am UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/246 "2010-05-01T07:24:07Z")
> [@](#): > > Or a dead baby, and risking the mother’s health. I can just see some woman with medical issues struggling though a pregnancy, suffering permanent damage only to give birth to a dead baby that the doctors knew was doomed or already dead, but refused to tell her. But hey, the slut suffers so it’s all good. That’s a good point. I do think that parents need to be informed of all options when carrying a fetus with severe/profound birth defects that have a high chance of miscarriage/stillbirth. I ALSO think that prolifers need to realize that in cases where the baby’s died in utereo, and a pregnancy termination is needed, it’s not about killing the baby. It is more about turning life support off. Not all birth defects are high functioning. There are many where the kid is a vegetable or can only smile or whatever. I think a better law in the area of prenatal defect dx, would be to give the parents as much information as possible out there on ALL options, and the best info they have on the defect. ---
**Author:** ![theR](https://avatars.discourse-cdn.com/v4/letter/t/977dab/32.png) [@theR](https://boards.straightdope.com/u/theR)\ **Post date:** [May 1, 2010, 12:43pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/247 "2010-05-01T12:43:09Z")
> [@Voyager](#): > > 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? There is federal law covering PHI (Personal Health Information) contained in HIPPA that seems like it may conflict with this state disclosure law. Essentially, I believe anyone with your PHI (medical information) is obligated to disclose them to you or a designee within a certain amount of time after your request. There are exceptions, but I’m not sure if those exceptions could be used to excuse the OK statute. > **[Health Insurance Portability and Accountability Act](https://en.wikipedia.org/wiki/HIPPA)** > > The Health Insurance Portability and Accountability Act of 1996 (HIPAA or the Kennedy–Kassebaum Act) is a United States Act of Congress enacted by the 104th United States Congress and signed into law by President Bill Clinton on August 21, 1996. It aimed to alter the transfer of healthcare information and stipulated guidelines by which personally identifiable information maintained by the healthcare and healthcare insurance industries should be protected from fraud and theft, and addr The act c... I believe this might be the relevant section of HIPPA: [http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=45&PART=164&SECTION=524&SUBPART=&TYPE=TEXT](http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?YEAR=current&TITLE=45&PART=164&SECTION=524&SUBPART=&TYPE=TEXT) [Previous page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=12)