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.
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