A Bozeman jury returned a verdict against Bozeman parents who sued for wrongful birth on Thursday in about two hours after they were dismissed for deliberation.
The court clerk read the verdict submitted by the jury, who had to answer the question of whether the nurse and doctor caring for Kerrie Evans, the mother, failed to follow accepted standards of health care. The answers came back both as "no."
Evans, who is from Gardiner, testified that she would have had an abortion if she had known her daughter, who is now 5 years old, would be born with the genetic disease Cystic fibrosis, which typically affects a person's lungs and pancreas.
For closing arguments, Evans' attorneys claimed the health care providers did not properly communicate and record vital information that could have changed her decision about her pregnancy.
"It's abysmal record keeping. It's a system failure, no one is keeping track of the information they're supposed to keep track of," said E. Casey Magan, one of Evans' lawyers.
Magan added that emotional distress will last beyond the potential death of the child.
"So this is the day to day…the day a day of unending suffering, bittersweet, awfulness of knowing what's going to come," said Magan.
The defense lawyers responded by arguing Evans failed to read a Cystic fibrosis pamphlet given to her before the birth. They also said Evans opted not to go through genetic counseling, which might have warned Evans of any risks in having a child.
They also said Evans' nurse should not be blamed for any miscommunication.
"We've heard all about patient confusion, not one complaint was brought before you that any patient in the history of Peggy's career has ever claimed I was confused (or that) I was confused at my pre-natal visit," said John Scully, the attorney for the nurse.
Evans' attorney calls her one of the most courageous people she has ever met, and that this loss did not come without some victory.
"We're terribly disappointed, but Kerrie Evans feels like she's already won by virtue of the health care providers having made changes to their checklists," said Magan.
A teenager with Cystic fibrosis was in the courtroom, hoping to show that having the disease has not stopped him.
"Just because you have CF, it doesn't mean it holds you back. I'm a fifteen-year-old who hunts, who skis and who is active. I don't let CF hold me back. There were doctors in the trial that said you can do anything you want, (that) CF can't hold you back and that's absolutely true," said Carsten Manring.
Evans' lawsuit initially sought $14.5 million in damages. But during closing statements Thursday, Evans' attorneys asked for just under $2.4 million. Evans has the right to appeal the decision made by the jury, but her attorneys are waiting for her to decide.
This case gave NBC Montana an opportunity to learn more about wrongful birth cases. Since the mid-70s, more than 20 states have recognized wrongful birth actions that let parents collect some or all of their child's expenses if they prove negligence.
NBC Montana found multi-million dollar verdicts for parents in Florida, Oregon and Washington state, where $50 million was awarded to a Seattle area couple in 2013. Their son was born with a chromosomal defect. The parents sued a medical center for not telling the lab where to look for a genetic defect.
Last year, a total of 13 states banned wrongful birth lawsuits.
NBC Montana asked five and six o'clock viewers if they think Montana should follow suit. The results were that 68 percent of those voting said "yes," while 32 percent said "no."