Sunday 18th February 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.

Pope Francis says Paul VI will be canonized this year

Vatican City, Feb 17, 2018 / 08:53 am (CNA/EWTN News).- During his annual Lenten meeting with the priests of Rome last week, Pope Francis confirmed that Blessed Pope Paul VI will be made a saint sometime this year. “Paul VI…Continue Reading

Pope reappoints O’Malley to head further work of safeguarding commission

Vatican City, Feb 17, 2018 / 05:10 am (CNA/EWTN News).- On Saturday the Vatican announced that Pope Francis has reconfirmed Cardinal Sean O’Malley of Boston as head of the Pontifical Commission for the Protection of Minors, also reconfirming seven members…Continue Reading

The Latest: Trump to visit Florida after school shooting

WASHINGTON (AP) — The Latest on President Donald Trump’s response to the Florida school shooting (all times local): 11:36 a.m. President Donald Trump says he’ll visit Parkland, Florida, the site of Wednesday’s shooting that killed 17 people. Trump said from…Continue Reading

U.S. bishops: federal budget should not be balanced ‘on backs of the poor’

WASHINGTON, D.C. – In response to the Trump administration’s 2019 federal budget proposal on Monday, the U.S. Catholic bishops are urging for a budget that shows greater concern for “‘the least of these” and warning that the U.S. “must never seek…Continue Reading

Planned Parenthood sticker stirs controversy at Connecticut Catholic high school

A Connecticut high school student may have to decide whether to remove a Planned Parenthood sticker on her laptop or leave her Catholic school after administrators told her to remove it, her parents said. Sophomore Kate Murray’s parents told the Greenwich Time that…Continue Reading

Fr. James Martin: ‘People take the Bible…out of context’ on homosexuality

February 8, 2018 (LifeSiteNews) – The Bible’s condemnation of homosexual acts should be taken in “context” with Biblical times, Jesuit Father James Martin toldGeorgetown University students recently. Martin said as well that Catholics who support gay “marriage” should have no problem…Continue Reading

Mississippi state house votes to ban abortion after 15 weeks

JACKSON, Mississippi, February 2, 2018 (LifeSiteNews) – A bill banning abortion on babies more than 15 weeks old passed the Mississippi state House today 79-31. House Bill 1510 would make Mississippi the state with the most pro-life laws if it…Continue Reading

All But Three Democrats Voted to Allow Unlimited Abortions Up to Birth

Just three Democrats in the U.S. Senate supported a bill on Monday that would prohibit abortions after 20 weeks when unborn babies are capable of feeling pain. The Pain-Capable Unborn Child Protection Act, which has strong public support from Republicans…Continue Reading

Athanasius Schneider invites world’s bishops to sign Profession of Immutable Truths

ROME, January 30, 2018 (LifeSiteNews) – In an exclusive interview two weeks after issuing a profession of immutable truths about sacramental marriage, Bishop Athanasius Schneider is inviting his brother bishops around the world to join in raising a common voice…Continue Reading

Cardinal Eijk Asks Pope to Clarify Questions About “Remarried” Divorcees

As Katholisch.de, the official website of the German bishops, reports today, Cardinal Willem Eijk, the Dutch cardinal and Metropolitan Archbishop of Utrecht, requested that Pope Francis bring light into the confusion concerning the question as to how to deal with…Continue Reading

Where are all the Catholics at the nation’s largest Catholic school

When Selena Miller, a practicing Catholic, applied to DePaul, she had no idea it was a Catholic university. Damita Meneves, another practicing Catholic, said she has met only one other Catholic student in her first year at DePaul. DePaul is…Continue Reading

Cardinal Burke: It is a “source of anguish” to hear suggestions “that I would lead a schism”

His Eminence, Raymond Leo Cardinal Burke, spoke recently with Thinking with the Church, hosted by Chris Altieri, who is also a regular contributor to Catholic World Report. Cardinal Burke responds to questions regarding the interpretation and reception of the post-Synodal Apostolic Exhortation, Amoris…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 . . .

Planned Parenthood Sues President Trump After He Defunded Its Programs Pushing Sex on Kids

There’s nothing, it seems, that the abortion chain Planned Parenthood won’t sue over. On Thursday, affiliates of the abortion chain in seven states sued the Trump administration for cutting funding for their questionable teen pregnancy prevention programs. The Daily Nonpareil reports the lawsuits argue that the Trump administration wrongly cut their funding prematurely and without cause. Nine groups, including Planned Parenthood affiliates in Washington, Iowa, North Carolina, South C

Scholar stumps Cardinal Cupich, asks if Pope’s ‘paradigm shift’ means ‘radical’ doctrinal change

CAMBRIDGE, England, February 15, 2018 (LifeSiteNews) – A respected Catholic historian and philosopher challenged Cardinal Blase Cupich during a lecture last week about Pope’ Francis so-called “revolution of mercy” that has caused what many are defending as a “paradigm shift” in Catholic practice. Professor John Rist, after listening to a February 9 lecture at Cambridge Universityin which Cardinal Cupich praised Pope Francis’ “paradigm shift” in Catholic practice, asked the Cardinal at the end of the lect

Cardinal Schönborn outraged at bishop’s critique of blessings for homosexual unions

VIENNA, Austria, February 14, 2018 (LifeSiteNews) – Austria’s bishops, led by Vienna’s Cardinal Christoph Schönborn, are indignant over a retired bishop’s passionate defense of Catholic teaching in opposing Church “blessings” for homosexual unions. After Bishop Andreas Laun, the retired Auxiliary Bishop of Salzburg, Austria, published Monday his strong rebuke of the German bishops for proposing to bless homosexual couples, there has been an inten

The Clarity of Cardinal Cupich

Cardinal Blase Cupich of Chicago is all for clarity. It has been a consistent theme, as when in September of 2017 he issued a decree banning guns in all parishes, schools and other facilities across the archdiocese “so there would be absolute clarity on our position.” His official statement put “clarity” in italics. When he was bishop of Rapid City, he called for “civility and clarity” in discussing legislation that would limit abortion, but he…Continue Reading

Catholics warn of church schism if Vatican makes a deal with China

BEIJING — A group of influential Catholics published an open letter Monday express their shock and disappointment at report that the Vatican could soon reach a deal with the Chinese government, warning that it could create a schism in the church in China. The Holy See has been in negotiations for several years with the Chinese Communist Party and is now belie

Advertisement(2)

President Trump Bans U.S. Aid for International Abortions

WASHINGTON, D.C. — Within a week of taking office on January 23, 2017, President Trump reinstated and expanded the Mexico City Policy, now called the Protecting Life in Global Health Assistance, which bans U.S. funding for abortions overseas. The expanded policy prohibits $9 billion in U.S. taxpayer money from funding foreign organizations that perform or…Continue Reading

Approval Of Miracle Opens Door To Paul VI’s Canonization

By HANNAH BROCKHAUS VATICAN CITY (CNA/EWTN News) — The Congregation for the Causes of Saints has approved the second miracle needed for the canonization of Blessed Pope Paul VI, allowing his canonization to take place, possibly later this year. According to Vatican Insider, the Congregation for the Causes of Saints approved the miracle by a…Continue Reading

Neither Left Nor Right, But Catholic… A Catholic Reaction To Trump And The Media

By STEPHEN M. KRASON (Editor’s Note: Stephen M. Krason’s Neither Left nor Right, but Catholic column appears monthly [sometimes bimonthly] in Crisis. He is professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also cofounder and president of…Continue Reading

Priest Says… Excommunicate 14 Catholic Senators Who Voted Against Late-Term Abortion Ban

By LISA BOURNE (Editor’s Note: LifeSiteNews ran this story on February 5.) + + + A Catholic priest is calling on bishops to excommunicate the 14 Catholic-identifying U.S. senators who voted two weeks ago against banning late-term abortions. He is also calling on priests to deny the Catholic pro-abortion senators Holy Communion. “Today is the…Continue Reading

Limbo And Eastern Orthodoxy

By JAMES LIKOUDIS The centuries-old theological debate concerning the existence of Limbo for unbaptized babies (the limbo puerorum as a state of natural happiness) led to the 2007 publication of the document The Hope of Salvation for Infants Who Die Without Being Baptized by the International Theological Commission (ITC). The commission concluded there are “serious…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

The Effects Of The Sacrament Of Matrimony

By DON FIER For a variety of reasons (a defect of consent, a diriment impediment, or a defect of the required form), many supposed modern-day marriages entered into by Catholic persons are invalid from their origin in the eyes of God and the Church. However, as we saw last week, depending on the circumstances, the Church has procedures by which…Continue Reading

Catholic Replies

Q. Concerning what our Blessed Mother said in Fatima about the rosary, I am confused as to whether or not she meant us to meditate on the mysteries while we are praying the Hail Marys or whether she meant us to meditate on the mysteries right before we say the Hail Marys. The consensus seems to be that we are…Continue Reading

Abraham Had To Be Tested

By FR. ROBERT ALTIER Second Sunday Of Lent Readings: Gen. 22:1-2, 9a, 10-13, 15-18 Romans 8:31b-34 Mark 9:2-10 In the first reading today we hear about Abraham’s nearly incomprehensible act of faith and love for God shown in his willingness to sacrifice his own son. We have to be careful not to read this in a vacuum. This test, which…Continue Reading

Questioning Humanae Vitae?… The Vatican Has Already Had Its Say

By ANDREA GAGLIARDUCCI (Wanderer Editor’s Note: Catholic News Agency on February 3 published a commentary concerning a 1989 Vatican response to dissent against Humanae Vitae. Below is an excerpted version of that commentary. Following that, we reprint the full text of the 1989 Vatican response, which, as the CNA commentary explains, is now available on the Vatican’s website. Please also…Continue Reading

A Leaven In The World… Bishops Promote Sin “In Some Cases”

By FR. KEVIN M. CUSICK A joke sometimes recounted among clergy goes along these lines: Someone greets a wise old priest by asking, “What’s new?”, and he responds, sagely, “Christ is risen!” The humor here is less about what’s new than about the fact that everything, other than the only true revolution of Christ’s Incarnation and triumph over death, is…Continue Reading

Catholic Heroes… St. Margaret Of Cortona

By CAROLE BRESLIN Great sinners make great saints. It takes a strong-willed child to become a saint. These are statements which would easily fit saints such as Mary Magdalene and St. Augustine. In the thirteenth century, a young lady free in spirit and strong in will led such a life that she was essentially driven from her home village, but…Continue Reading

Catholic Heroes… Blessed Joseph Allamano

By CAROLE BRESLIN In the lives of the saints one thing is very common: They have such a strong desire to do God’s will that nothing will hinder their work. Many saints, despite illness, weak health, or many other obstacles achieved their goals. Frequently the amount of work accomplished by such individuals seems humanly impossible — and, of course, it…Continue Reading