Iowa Supreme Court recognizes wrongful birth claim

From a 2013 Illinois Bar Journal article on the Illinois Supreme Court allowing emotional distress damages in wrongful birth claims

On June 2, 2017, the Iowa Supreme Court recognized for the first time the claim of “wrongful birth”. The Court also recognized that the state legislature may enact legislation barring such claims. 

From the start of the opinion:

This appeal presents a question of first impression under Iowa law: whether the parents of a child born with severe disabilities may bring a medical negligence action based on the physicians’ failure to inform them of prenatal test results showing a congenital defect that would have led them to terminate the pregnancy. This is known as a wrongful-birth claim.

(emphasis added). The child in this case was his parents’ third child. During a 22-week ultrasound, it was noted that his head circumference was abnormally small, in the 3rd – 6th percentile with recommended follow-up. The treating OB, however, said that the ultrasound showed that “everything was fine.” The child (referred to in the opinion as “Z.P.”) was born and soon thereafter the mother had concerns about his development. She began seeing specialists.

From the opinion describing the child’s condition:

Z.P. suffers from cerebral palsy, microcephaly, intellectual disability, cortical visual impairment, and seizure disorder. 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.

His parents filed a lawsuit against their providers alleging negligent care. They did not allege that the health care providers caused Z.P.’s disability, but that had the doctors properly counseled the parents about the ultrasound results, they would have terminated the pregnancy. They sought a range of damages, including the costs of medical care for Z.P. At the same time, the mother provided a statement noting:

that when he is not sick, he is “really happy” and “a good baby.” Pamela testified she “really enjoy[s] spending time with [Z.P.] and get[s] a lot of happiness from him.”

The trial court granted the doctors’ motion for summary judgment noting that the parents did not allege that the doctors caused the disability and that Iowa had not recognized a claim for wrongful birth. The trial court further stated that whether such a claim should be recognized was better left for the legislature to decide.

The Iowa Supreme Court disagreed.

Instead, the Iowa Supreme Court ruled that wrongful birth fit within traditional principles of American tort law and therefore it should be recognized. It cited two main reasons why most jurisdictions have recognized wrongful birth claims:

Two developments help explain the trend toward judicial acceptance of wrongful birth actions. First, advancements in prenatal care have resulted in an increased ability of health care professionals to predict and detect the presence of fetal defects. This raises the importance of genetic counseling for expecting parents. Indeed, prenatal testing is “extremely prevalent and is widely accepted,” and “will likely become more common in the future.”

Second, Roe v. Wade and its progeny established as a matter of federal constitutional law that a woman has a right to choose whether to terminate her pregnancy free from state interference before the fetus is viable.

* * *

As a result, today it is possible for prospective parents (1) to know, well in advance of birth, of the risk or presence of congenital defects in the fetus they have conceived; and (2) to decide to terminate the pregnancy on the basis of this knowledge.

(emphasis added) (quotations and citations omitted).

The opinion acknowledges the criticism that wrongful birth claims do not traditionally meet the elements of causation.

Typically in a tort case, the negligence of the defendant must be the proximate cause of an injury for which there are recognized damages. The Iowa Supreme Court likened the causation element in a wrongful birth case to being more akin to a failure to diagnose claim, where the failure to diagnose precluded treatment, thereby resulting in worse damages.

The Court uses as an example the failure to diagnose cancer, which then progresses, causing the patient more harm and foreclosing certain treatment options. For wrongful birth, by the Court’s analogy, the child’s disability is the cancer, the worse harm is that the child was born alive, and the foreclosed “treatment” was abortion. The court ruled that he doctor’s failure to diagnose Z.P.’s disabilities and disclose them to his parents caused his parents damage by Z.P. being born with disabilities, which could have been avoided if the parents had been told prenatally because they now say they would have terminated the pregnancy.

The other element critics of wrongful birth claims cite is the element of damages. The Court acknowledges that in a previous case it refused to recognize being born as a compensable injury. However, it likened the claim of injury to that of another claim: lack of informed consent:

The compensable injury in a wrongful-birth claim is the parents’ loss of the opportunity to make an informed decision to terminate the pregnancy. This is analogous to a claim for medical negligence based on lack of informed consent. Both types of claims arise out of the unquestioned principle that absent extenuating circumstances a patient has the right to exercise control over his or her body by making an informed decision. The patient’s right to make an intelligent and informed decision cannot be exercised when information material to that decision is withheld.

(quotations and citations omitted). Having found that the tort comports with the traditional elements of common law negligence claims, the court then considered whether there were public policy reasons countering the recognition of wrongful birth claims.

The first policy issue is whether damages for giving birth to a child with disabilities would be offset by what the law recognizes as the “benefits” rule, i.e. that the benefits of raising the child would offset any claim of damages for having given birth to Z.P. On these policy issues, I’ll let the court’s opinion speak for itself:

Pamela testified she “really enjoy[s] spending time with [Z.P.] and get[s] a lot of happiness from him.” But “that pleasure will be derived in spite of, rather than because of, [the child’s] affliction.” Schroeder v. Perkel, 432 A.2d 834, 842 (N.J. 1981). We decline to monetize the joy of raising a severely disabled child to offset the costs of raising him.

The second policy concern raised by the doctors is that wrongful birth claims would stigmatize those with disabilities. Again, I’ll let the words of the Iowa Supreme Court respond to that claim:

Defendants argue the disabled child may later be emotionally traumatized upon learning his or her parents would have chosen to abort. But given Z.P.’s severe cognitive disabilities, there is nothing in the record to indicate he will someday understand his parents sued over their lost opportunity to avoid his birth.

The opinion concludes the policy analysis by instead noting that not allowing a wrongful birth claim would immunize physicians from their negligence and, on a positive note, by allowing wrongful birth claims the threat of a lawsuit “will encourage more accurate prenatal testing.”

The opinion notes there is no Iowa statute that expresses a policy view that would be counter to recognizing wrongful birth claims. The Court does mention: “If the legislature disagrees with our decision, it is free to enact a statute precluding wrongful-birth claims.”

While what damages have been allowed differs amongst the states recognizing wrongful birth claims, because that issue was not argued at the trial court level, the Iowa Supreme Court declined to rule on what damages may be recovered.

There are seven justices on the Iowa Supreme Court. Only one of them, Justice Mansfield, voted against recognizing a wrongful birth claim. From his dissenting opinion:

I respectfully dissent because I cannot agree that we should create a cause of action for “wrongful birth.”

* * *

The common law does not support this cause of action. At common law, parents could not recover for the wrongful birth of a child.

* * *

In general, a medical malpractice claim cannot be pursued in the absence of physical harm.

* * *

My colleagues analogize the wrongful-birth claim to a failure-to-diagnose or a failure-to-provide-informed-consent cause of action. These off-base comparisons do not advance the majority’s analysis. Under a failure-to-diagnose claim, the physician can be sued because his or her negligence has resulted in physical harm, or at least greater physical harm than would otherwise have occurred. See, e.g., Murtha v. Cahalan, 745 N.W.2d 711, 716 (Iowa 2008) (“[T]he ‘injury’ is the development of the problem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.” (emphasis omitted) (quoting DeBoer v. Brown, 673 P.2d 912, 914 (Ariz. 1983) (en banc))). Similarly, the informed-consent theory permits a physician to be sued only when inadequate disclosure of the risks of a “proposed medical procedure” results in “injury.” See Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355, 359–60 (Iowa 1987). Here, again, the alleged breach of duty has not caused physical harm.

Finally, responding to the majority opinion inviting the Iowa legislature to enact legislation if it so chooses, the dissent adds a footnote:

The majority puts the shoe on the other foot, stating, “If the legislature disagrees with our decision, it is free to enact a statute precluding wrongful-birth claims.” This observation is undoubtedly true. In several states, legislatures have enacted statutes to overturn court decisions permitting wrongful-birth claims. However, I would not impose that burden on the Iowa General Assembly. In our system of government, it is the legislature’s job, not ours, generally to take the initiative on matters of public policy.

(citation omitted). Perhaps we will see if the Iowa General Assembly chooses to accept the Court’s invitation and if it will enact legislation, as the overwhelming majority of those that have, that bans wrongful birth claims.