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CHD and the Law: The “He Was Born With It” Defense

Dec 31

Posted by: ACHA
12/31/2013 9:32 AM  RssIcon

By Michael Pernick

This blog series features stories involving congenital heart disease and the law. The blog posts may discuss contemporary or historical court decisions, laws or regulations, or other legal issues that relate to CHD. These posts are purely for entertainment and educational purposes and are not legal advice. Any opinions expressed in this series of posts are solely those of the author and do not represent the Adult Congenital Heart Association.

On a Saturday in September 1921, Frank Wloszczynski was driving in Milwaukee and running late. He was not paying attention to the road, and pushing his car (presumably a Model T) as fast as it could possibly go. He did not notice that Anton Gerber, a child, was crossing the road. Wloszczynski hit little Anton. Although he survived, Anton was hurt.

Anton was six years old at the time. Before the accident, he appeared to be a healthy child. He went to school, liked to play, and acted like most boys of his age. Unfortunately, the accident caused severe injuries. He fractured his clavicle and suffered cuts to his head, body, arms, and legs. He was hospitalized for a month, during which his obvious injuries healed. But Anton didn’t fully recover. After the accident, he had trouble sleeping and was inactive all the time. He felt fatigued and ran out of breath after even the slightest activity. He couldn’t even go back to school.

These problems lasted for two and a half years after the accident. They were so severe that Anton was unable to even run a few yards. His parents were quite upset and went to see Dr. Barth, a specialist in Milwaukee. After examining him, Dr. Barth found that Anton had a heart defect, a serious leak of his mitral valve, and a very enlarged heart. He believed these issues were caused by an infection that entered his blood system through the cuts at the time of the car accident. After hearing Dr. Barth’s report, Anton’s parents sued Wloszczynski for $9,000. The jury, likely moved by Anton’s sad story, awarded the Gerbers every penny.

Wloszczynski appealed the decision to the Wisconsin Supreme Court. He hired Dr. MacRae, his own medical expert, to examine Anton. Dr. MacRae reached a different conclusion than Dr. Barth. He thought the condition was not caused by an infection, but was due to a congenital heart defect that did not reveal itself in the first few years of Anton’s life. Dr. MacRae noted that Anton’s heart was as big as a man weighing over 200 pounds. This could only be explained by a chronic condition. He argued that if infectious germs entered the blood stream and caused the sort of damage that Dr. Barth described, Anton would not have survived for more than a few months, and certainly would not have lived for years following the accident.

Wloszczynski’s lawyers argued that although the harm to Anton was unfortunate, it was Anton’s congenital heart defect, and not Wloszczynski’s driving, that damaged his heart. They argued that it would be a miscarriage of justice to hold Wloszczynski liable for that harm.

The Supreme Court was convinced, and ordered the lower court to reconsider its decision. I would like to think that regardless of the cause of his heart condition, little Anton won some money and managed to have a happy life. I also hope that Frank Wloszczynski drove more carefully after that fateful September day.

This was one of the first decisions in an American court that mentioned congenital heart disease. The “he was born with it” defense is an important and controversial legal argument still used today. Issues relating to pre-existing conditions occur in other of situations, including insurance disputes, job or social security disability lawsuits, and tort claims very much like this one.

The facts in this post come directly from Gerber v. Wloszczynski, 206 N.W. 206 (Wis. 1925).

Michael Pernick was born with tetralogy of Fallot and grew up on Long Island, New York. He is currently a second-year student at NYU School of Law. He attended college at Wesleyan University and worked for several years on political campaigns and issue advocacy campaigns in New York, Connecticut, and Boston.

Copyright ©2013 ACHA

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1 comment(s) so far...


Re: CHD and the Law: The “He Was Born With It” Defense

Very Interesting Post. Thank You. I have heard that social security uses this as a denial tactic for older CHD'rs like myself.

By Kathy J on   12/31/2013 11:25 AM

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