Friday 22nd June 2018

Home » Featured Today » Currently Reading:

Iowa High Court Recognizes “Wrongful Birth” Claims

June 15, 2017 Featured Today No Comments

By DEACON MIKE MANNO

In a 6-1 ruling early in June, the Iowa Supreme Court recognized wrongful birth as a cause of action in the state.
The case involved a married couple, Pamela and Jeremy Plowman, who had two children ages four and three when Pamela became pregnant with her third child, identified by the court as “Z.P.” At approximately 22 weeks into her pregnancy, Pamela had an ultrasound to assess fetal growth. A report from the ultrasound found that Z.P. displayed head abnormalities and recommended a follow-up.
For some reason the physicians involved did not relay the severity of the report to the Plowmans, only saying that the head measurements were slightly below normal. According to the court, “Pamela was never informed ‘that the radiologist had found any abnormalities, or that the ultrasound was in any way abnormal’.”
After Z.P.’s birth Pamela noticed some concerning characteristics and at four months she took the baby to a recommended specialist in Iowa City for testing and treatment. The result of the testing indicated that the baby was suffering from, among other things, cerebral palsy, intellectual disability, cortical visual impairment, and seizure disorder.
Again, according to the court, “He requires frequent visits to numerous doctors in Iowa City and Keokuk. Physical therapists come to his home one to two times weekly. He is on daily medication for seizures and reflux. Doctors have been unable to determine the exact cause of Z.P.’s disabilities. It is unlikely Z.P. will ever walk or speak.”
The Plowmans filed suit against the medical providers alleging that they failed to accurately interpret, diagnose, and report to her the fetal abnormalities that were evident in the ultrasound. Had they been so informed they would have terminated the pregnancy, they claim. Therefore, since they were not so informed, Pamela gave birth to a disabled child and the pre-birth medical team should be required to pay damages for, among other things, the extraordinary care required for raising Z.P.
The defendants, the hospital, radiologist, and physicians answered the suit and ultimately moved for a dismissal. The trial court dismissed the case because the action was for “wrongful birth” — a cause of action that had not been recognized in Iowa. The decision to allow an action for wrongful birth rested with the Supreme Court and the Iowa legislature, ruled the trial court.
The Plowmans then filed an appeal with the Iowa Supreme Court, which responded to the trial court’s dismissal by saying:
“The threshold question is whether Iowa law allows parents to sue for wrongful birth. Defendants allege that the claim is a new cause of action unsupported by Iowa law. Plaintiffs, on the other hand, allege that this case falls within the traditional elements of medical negligence and note a clear majority of other jurisdictions allow parents to sue under these facts. We conclude that wrongful birth fits within common law tort principles governing medical negligence claims, and no public policy or statute precludes the cause of action.”
In its opinion, authored by Justice Thomas Waterman, the court noted that while 23 states have recognized the wrongful birth claim, several others have rejected the view “that the existence of human life can constitute an injury cognizable at law.”
In North Carolina, for example, the State Supreme Court in Azzolino v. Dingfelder rejected the claim of wrongful birth, saying, “The jurisdictions which have reached the merits of claims for wrongful birth currently appear to be almost unanimous in their recognition of them when but for the defendants’ negligence, the parents would have terminated the defective fetus by abortion. . . . Although we do not lightly adopt a view contrary to such a strong trend among other jurisdictions, we nevertheless hold that claims for relief for wrongful birth of defective children shall not be recognized in this jurisdiction absent a clear mandate by the legislature.”
The Kentucky Supreme Court reasoned in Grubbs v. Barbourville: “Although under traditional tort law defendants are liable for all the reasonably foreseeable results of their negligence, successful plaintiffs in wrongful birth actions have received various types of damages ranging from the expenses resulting from the impairment but not the normal costs of raising the child, to the entire cost of raising the child with no reduction for the cost of raising a healthy child, to only the parents’ own suffering and mental anguish resulting from the child’s birth but not the expense of raising the child.
“There has also been no consensus as to whether the damages should be reduced or offset by any emotional or other benefit to the parents through the child’s life, or whether there is a duty on the parents to mitigate damages by placing the child for adoption. The divergence of views on damages reveals the flaws in the conclusion that a life may be considered a legally cognizable injury.
“If we held otherwise, there would be questions regarding which incurable birth defects, left negligently undiagnosed from prenatal diagnostic procedures, should warrant recovery.
“ When will parents be allowed to decide that their child is so ‘defective’ that given a chance they would have aborted it while still a fetus and, as a result, then be allowed to hold their physician civilly liable?”
The Michigan Court of Appeals in Taylor v. Kurapati held that the use of the benefits rule in determining offset of damages in wrongful birth cases could slide quickly into applied eugenics.
But the Iowa court clarified its position: “[U]nder the wrongful birth theory, the relevant injury is not the resulting life, but the negligent deprivation of information important to the parents’ choice whether to terminate a pregnancy.” In other words, had the medical providers interpreted the ultrasound correctly and passed that information along to the Plowmans they could have chosen to abort the child and, by doing so, they would have mitigated their damages.
The failure to abort, however, would not lend itself to a cause of action since the medical personnel involved did nothing to harm the baby, as would have been the case, for example, when a physician botches the delivery causing injury to the child. In fact, in 1984 the Iowa Supreme Court held that parents could not sue for wrongful birth after a failed abortion.
“The compensable injury in a wrongful birth claim is the parents’ loss of opportunity to make an informed decision to terminate the pregnancy,” the court wrote, adding that declining to recognize the cause of action for wrongful birth would immunize the medical field from liability for their performance in the area of prenatal care and genetic counseling.
Of course, the court noted, if it wished the legislature could overrule its decision by enacting a statute to prohibit wrongful birth claims as 12 other states have done.
The dissenting justice, Edward Mansfield, cited three reasons for not joining the rest of the court: the ruling was not supported by common law precedents; the claim is contrary to Iowa statutory law; and it is contrary to public policy. “This is not a straight-and-simple case of medical malpractice, as the majority suggests. In general, a medical malpractice claim cannot be pursued in the absence of physical harm….Plaintiffs do not contend that the defendants’ actions caused physical harm to Z — but rather that Z’s birth as a severely disabled child has caused them emotional harm. “
He also argued, after a discussion of Iowa statutory law and court rules dating back to 1860, that “the statute limits recovery to circumstances when there is an ‘injury to’ or the ‘death of’ a minor child. No part of [the rule] authorizes recovery for a child’s birth.”
He suggested that the court’s decision would open the possibility of other types of claims such as a mother suing a father for failure to disclose he carried a genetic disorder, or a couple suing an outside sperm donor.
“Or suppose a physician recommends a potentially life-saving course of treatment for a seriously ill octogenarian whose adult children hold medical power of attorney. The children agree to the course of treatment, which prolongs the octogenarian’s life but doesn’t alleviate his misery. Instead, it drains the remaining assets of his estate. The majority opinion opens up the possibility that the children could sue for ‘wrongful prolonging of life’.”
Stranger things, of course, have happened in our courts.
One little side note on the case. The court noted that Mrs. Plowman’s option for an abortion was only for a legal abortion. Under a recently enacted law, abortions are prohibited in Iowa after twenty weeks gestation unless there is a medical emergency. Mrs. Plowman’s initial ultrasound was done at 22 weeks. The new legislation, however, is not retroactive but that might not prevent defense counsel from arguing the point when the case returns to the trial level.

Share Button

2017 The Wanderer Printing Co.

Vikings host ‘LGBTQ summit’ to promote ‘inclusion’ in sports

EAGAN, Minnesota, June 21, 2018 (LifeSiteNews) – The Minnesota Vikings are hosting a conference and fundraiser today for “LGBTQ inclusion in sports,” the first of its kind in the National Football League (NFL). The event will include speeches, interviews, and…Continue Reading

Catholic bishops are quick to attack Trump but slow to advise their voters

(RNS) — President Trump had no sooner returned home from his historic photo op with Korean dictator Kim Jong Un in Singapore when he faced condemnation from a host of religious leaders, from Southern Baptists to African Methodists to Catholics,…Continue Reading

Bishop: Deny Communion to Border Agents. It’s a ‘Life Issue.’

Is enforcing U.S. immigration law a moral evil that demands excommunication? Or would a new proposal politicize the Eucharist, strengthen organized crime, and hurt even more migrant children? Roman Catholics must face these questions after Bishop Edward Weisburger of Tucson suggested “canonical…Continue Reading

Argentina steps closer to legalising abortion

Catholic Argentina’s lower house has backed a bill legalising abortion in the first 14 weeks of pregnancy. After a divisive debate lasting more than 22 hours, 129 members of the Chamber of Deputies voted in favour and 125 against while…Continue Reading

Pope Francis rejects German proposal for inter-communion

Vatican City, Jun 4, 2018 / 06:37 am (CNA/EWTN News).- One month after Vatican and German delegates met in Rome to discuss a proposal put forward by German bishops to allow Protestant spouses in inter-denominational marriages to receive the Eucharist…Continue Reading

St. Paul archdiocese settlement is largest-ever in Catholic bankruptcy case

ST. PAUL, Minn. (AP) — The Archdiocese of St. Paul and Minneapolis has agreed to a $210 million settlement with 450 victims of clergy sexual abuse as part of its plan for bankruptcy reorganization, making it the second-largest U.S. payout…Continue Reading

Church’s teaching on male-only priesthood is ‘infallible’: Vatican doctrine chief

ROME, May 29, 2018 (LifeSiteNews) — The head of the Vatican office overseeing Church doctrine has insisted that the Church’s teaching on the male-only priesthood is “infallible,” and has offered a veiled rebuke of a prominent Cardinal who recently claimed the…Continue Reading

The revolt against Humanae Vitae continues to haunt us today

ROME, May 25, 2018 (LifeSiteNews) — As in 2017, 2018 is also a year that is rich with important and significant anniversaries which we need to remember, because the roots of the present are found in the past. The best known…Continue Reading

Cardinal: Communion cannot be shared with non-Catholics like beer or cake

BUCKFASTLEIGH, England, May 25, 2018 (LifeSiteNews) — Protestants who want to receive Holy Communion should become Catholics, Cardinal Francis Arinze said this week, and added that “it is rather serious” to presume marriage can be dissolved for the purpose of…Continue Reading

Speaker Ryan Proposes a Return to Catholic Social Doctrine at Prayer Breakfast

Washington, D.C. – House Speaker Paul Ryan (R-WI) spoke at the National Catholic Prayer Breakfast Thursday about how he believed the answer to many of the political problems society faces today, including “moral relativism” and “tribalism,” can be found in Catholic…Continue Reading

Judge rules ‘transgender’ high-schooler should have been allowed opposite-sex bathroom

NEWPORT NEWS, Virginia, May 24, 2018 (LifeSiteNews) – A judge has ruled that a Virginia high school should have allowed a gender-confused former student to use the restrooms designated for the opposite sex. Gavin Grimm is a female Gloucester High School…Continue Reading

One of the most ‘liberal abortion regimes’ if vote passes

Ireland will have one of the most liberal abortion regimes in Europe if Friday’s referendum is passed, the No campaign warned during its final press conference on Wednesday. With the broadcasting ban set to come into force on the eve of the…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.


  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
 
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
 
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

Interview With Cardinal Burke . . . Discriminating Mercy: Defending Christ And His Church With True Love

Cburke3

  By DON FIER (Editor’s Note: His Eminence Raymond Leo Cardinal Burke, Patron of the Sovereign Military Order of Malta and Founder of the Shrine of Our Lady of Guadalupe in La Crosse, Wis., graciously took time out of his busy schedule to grant The Wanderer a wide-ranging interview during a recent visit to the Shrine. Included among the topics…Continue Reading

Developing Lives Of Peace After The Heart Of Mary

By RAYMOND LEO CARDINAL BURKE (Editor’s Note: His Eminence Raymond Leo Cardinal Burke delivered the address below at the 32nd Annual Church Teaches Forum, “The Message of Fatima: Peace for the World,” Galt House, Louisville, Ky., July 22, 2017. The address is reprinted here with the kind permission of Cardinal Burke. All rights reserved. This is part one of the…Continue Reading

Catechism

Today . . .

Cardinal Burke responds to Francis: We hand-delivered dubia letter to Pope’s residence

ROME, June 21, 2018 (LifeSiteNews) – Speaking with Reuters in an interview which appeared yesterday, Pope Francis criticized Cardinal Raymond Burke and three other cardinals who joined him in begging the Pope for clarification on key issues of faith. The cardinals used the long-standing ecclesial practice of issuing dubia, or questions to the Pope. There were five such questions altogether. But, according to Reuters the Pope said that “he had heard about the cardinals’ letter criticizing him…Continue Reading

GOOD NEWS . . .Fr. Phillips Exonerated

We have confirmation that after several weeks the Congregation of the Resurrection has indeed concluded its hearings and investigation of the accusations directed against Father Phillips. An independent Review Board of three public-spirited leaders from the Chicago area, who are not members of St. John Cantius Church, was constituted. Thereafter, the Review Board interviewed the detractors and several witnesses, persons who personally know the accusers, and other individuals who

Cardinal Brandmüller Questions Francis’ Claim Not to Have Received the Dubia Before Publication

Today, on 20 June, Reuters published a new interview with Pope Francis. Although the interview is making headlines because of the Pope’s criticism of President Donald Trump’s immigration policy, it also contains another controversial assertion: the pope surprisingly now claims that he only heard about the Dubia (concerning his document Amoris Laetitia) “from the newspapers” — a claim that Dubia cardinal Walter Brandmüller has now questioned in comments to OnePeterFive. From the text of the interview: The pope also commented on internal criticism of his…Continue Reading

US Cardinal removed after ‘credible’ allegation he abused a minor

NEW YORK, June 20, 2018 (LifeSiteNews) – A high-profile liberal U.S. cardinal has been removed from public ministry for credible and substantiated allegations of abuse of a minor. Cardinal Theodore McCarrick, a former priest of the Archdiocese of New York and cardinal emeritus of Washington D.C., “is no longer to exercise publicly his priestly ministry,” says a news release from New York Cardinal Timothy Dolan. “The review board found the allegations credible and substantiated,” Dolan’s statement said. “The Vatican…Continue Reading

Trump Admin Withdraws U.S. From UN Human Rights Council That Pushed Global Right to Abortion

The Trump Administration announced today that the United States is withdrawing from the UN Human Rights Council. That’s good news for pro-life advocates as the so-called human rights organization pushed for a global right to kill unborn children in abortions. According to news reports: The Trump administration withdrew the U.S. from the United Nations Human Rights Council, with U.N. Ambassador Nikki Haley calling the 47-member council “a protector of human rights abusers, an

Advertisement(2)

But What Happened To The News Coverage? . . . Pope Says Homosexual Couples Are Not A Family

By BILL DONOHUE (Editor’s Note: Catholic League President Bill Donohue on June 18 commented on remarks by Pope Francis that have been censored by the media.) + + + Pope Francis says gay couples cannot be considered a family. The media know he said this but, with few exceptions, they refused to run this story.…Continue Reading

Holy Bashfulness Vs. Shame By ALICE von HILDEBRAND

My dear young friend, Years ago, Cardinal O’Boyle was discussing some sexual matters with a group of men; all of a sudden the cardinal noticed that a young girl had joined the group, and interrupting his talk, he said to her: “Please excuse me.” But he was immediately rudely rebuked by one of the men…Continue Reading

On The Role Of Beauty In The Spiritual Life

By JAMES MONTI In recent years, thanks largely to Pope Emeritus Benedict XVI, the role of beauty in the sacred liturgy — and the appalling chasm created by its absence — has been a topic of frequent discussion among those concerned with a restoration of the sacred in divine worship — the beauty of the…Continue Reading

Civil Court… Rules Fulton Sheen’s Remains Can Go To Peoria

NEW YORK (CNA/EWTN News) — The Superior Court of New York ruled June 8 in favor of Joan Sheen Cunningham, who had petitioned to move the body of her uncle, Venerable Fulton Sheen, to the Cathedral of St. Mary in Peoria. The body of the late archbishop is currently in St. Patrick’s Cathedral in New…Continue Reading

Lindsey Graham’s Unjustifiable Call for War

By TERENCE P. JEFFREY (Editor’s Note: Terence P. Jeffrey is the editor in chief of CNSnews.com. Creators Syndicate distributed this column.) + + + Question: Has North Korea reinvaded South Korea since it signed an armistice 65 years ago suspending the Korean War? Answer: No. Question: Why? Answer: It has been deterred. Question: Would it…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

Catholic Replies

Q. Following up on a recent question about a divorced and remarried non-Catholic adult who converts to the Catholic Church, you said that the conversion would not change the status of the person, that he would still be married to his previous spouse and could not marry again without a decree of nullity or the death of the first spouse.…Continue Reading

None Dare Call It Treason

By DEACON JAMES TONER (Editor’s Note: Deacon James H. Toner, Ph.D., is Professor Emeritus of Leadership and Ethics at the U.S. Air War College, and author of Morals Under the Gun and other books. He has also taught at Notre Dame, Norwich, Auburn, the U.S. Air Force Academy, and Holy Apostles College & Seminary. He serves in the Diocese of…Continue Reading

The Glorious St. John The Baptist

By FR. ROBERT ALTIER Solemnity Of The Nativity Of St. John The Baptist (YR B) Readings Isaiah 49:1-6 Acts 13:22-26 Luke 1:57-66, 80 Today we celebrate the birth of a man who is important to us in a variety of ways. St. John the Baptist is, according to our Lord’s own words, the greatest man born of woman. For this…Continue Reading

A Leaven In The World… Will Marriages Outside A Church Keep Couples In The Church?

By FR. KEVIN M. CUSICK The Church makes exceptions to its own rules; this is well known. There are God’s rules, such as the Commandments, exceptions to which cannot be granted by man. And then there are the regulations promulgated by the Church, using the authority given her by the Lord, in order to better facilitate the pastoral work of…Continue Reading

The Sacraments Instituted By Christ . . . Understanding Confession More Deeply

By RAYMOND DE SOUZA, KM Part 33 When Jesus gave the apostles the power to bind and unbind things here on Earth (Matt. 18:18), He gave them authority over His flock. Hence, from the very first century, Popes and bishops passed laws to be observed by the people. Consequently, considering the seriousness of sin, and the risk many take for…Continue Reading

Catholic Heroes… St. Joseph Cafasso

By CAROLE BRESLIN Truman Capote wrote: “Love is a chain of love as nature is a chain of life.” More important, grace is a chain of grace with one grace leading to another. And holiness a chain of holiness as God pours His love through one person to another, as the Blessed Virgin Mary, the Mediatrix of all graces, pours…Continue Reading

Catholic Heroes… St. Joseph The Hymnographer

By CAROLE BRESLIN In the late sixth and early seventh century, the glories of Gregorian chant began to develop in Rome. Then, in the thirteenth century, St. Thomas Aquinas wrote beautiful hymns to celebrate Corpus Christi and to honor the Real Presence. In the Eastern Church, around Constantinople, they also sang hymns, but it was not until the late ninth…Continue Reading