Personal Injury Law

Wrongful Birth or Life or Pregnancy or Conception, Is there a difference?

By Steve Lombardi

Sterilization techniques improperly performed can lead to an unplanned pregnancy with costs the family is incapable of managing. Is there a negligence claim against the physician who performed the procedure? When the baby is born healthy or normal the claim is one for wrongful pregnancy or wrongful conception and there is no claim in the majority of states.

I've been asked about pursuing a medical malpractice claim against a doctor who failed to properly perform a sterilization procedure for the patient who later became pregnant. The client wants to know, do I have a claim for wrongful life? Some would frame it wrongful pregnancy or wrongful conception or wrongful birth. The law does make a distinction when it involves these difficult matters. The words used become the argument. When the baby is born healthy or normal the claim is one for wrongful pregnancy or wrongful conception and there is no claim in the majority of states.

Iowa follows the majority of states that have held,

We adopt the majority approach and thus conclude that the costs of rearing a normal, healthy child cannot be recovered as damages to the parent or parents. Nanke v. Napier, 346 N.W.2d 520, 522(Iowa 1984)

There are three distinct fact patterns the Iowa court discusses but has never ruled upon. I do believe there is a fact pattern the Courts may recognize as a viable malpractice claim; when the mother's health is compromised or she dies during delivery the Courts may be willing to extend the reach of the law for medical malpractice. Doing so would of course put the doctor on notice this mother better get the best care possible during the prenatal and pregnancy periods.

Recent decisions have adopted an approach that recognizes three distinct claims:

(1) "wrongful pregnancy" or "wrongful conception" as an action brought by the parents of a healthy, but unplanned, child against a physician who negligently performed a sterilization or abortion;

(2) "wrongful birth" as a claim brought by parents of a child born with birth defects; and

(3) "wrongful life" as a claim brought by the child suffering from such birth defects.

HOLDING: Our ruling today is limited to the unique facts of this case and the narrow issue presented. We hold only that the parent of a normal, healthy child may not maintain an action to recover the expenses of rearing that child from a physician whose alleged negligence in performing a therapeutic abortion permitted the birth of such child.

Nanke v. Napier, 346 N.W.2d 520, 523(Iowa 1984)

DISCUSSION: Plaintiff alleged in her petition that defendant, a physician, had negligently performed for compensation a therapeutic abortion which proximately resulted in the "wrongful birth" of a normal, healthy child on January 12, 1981. In counts I and II of her petition, plaintiff sought recovery for elements of damages such as pain and suffering, medical expenses, lost wages and emotional distress resulting from the unsuccessful abortion. Count III of the petition sought recovery for the expenses of rearing the child through the child's eighteenth birthday.

Actions arising from birth of children. The term "wrongful birth" has been applied by other courts to claims arising out of a diverse array of factual situations. In an attempt to inject a proper understanding of the many variations of "wrongful birth" claims, courts and commentators have utilized new terms to place these subtle factual variations in focus.

Recent decisions have adopted an approach that recognizes three distinct claims: (1) "wrongful pregnancy" or "wrongful conception" as an action brought by the parents of a healthy, but unplanned, child against a physician who negligently performed a sterilization or abortion; (2) "wrongful birth" as a claim brought by parents of a child born with birth defects; and (3) "wrongful life" as a claim brought by the child suffering from such birth defects. Phillips v. United States, 508 F.Supp. 544, 545 n. 1 (D.S.C.1981); University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 581, 667 P.2d 1294, 1296 n. 1 (1983); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 465, 656 P.2d 483, 487 (1983).

Under the above definitions, the factual situation involved in this case would more accurately be depicted as a claim for "wrongful pregnancy." We will regard plaintiff's petition in that context.

Complete Bar to Recovery of Child Rearing Costs. A third approach, adopted by the majority of jurisdictions, completely bars recovery of child rearing costs. McNeal v. United States, 689 F.2d 1200 (4th Cir.1982) (interpreting Virginia law); White v. United States, 510 F.Supp. 146 (D.Kan.1981) (interpreting Georgia law); Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Fassoulas v. Ramey, ---So.2d ---- (Fla.1984); Public Health Trust v. Brown, 388 So.2d 1084 (Fla.App.1980); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983) (reversing 99 Ill.App.3d 271, 54 Ill.Dec. 751, 425 N.E.2d 968 (1981)), cert. denied, --- U.S. ----, 104 S.Ct. 149, 78 L.Ed.2d 139 (1984); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Maggard v. McKelvey, 627 S.W.2d 44 (Ky.App.1981); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); P. v. Portadin, 179 N.J.Super. 465, 432 A.2d 556 (1981); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300 (1980); Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506 (1979); Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982). Cf. Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983) (damages restricted to expenses in excess of the cost of the birth and rearing of a healthy child). See generally Handling Pregnancy and Birth Cases, pp. 156-74 (W. Winborne ed. 1983) (overview of claims for child rearing costs).

We adopt the majority approach and thus conclude that the costs of rearing a normal, healthy child cannot be recovered as damages to the parent or parents.

Nanke v. Napier, 346 N.W.2d 520, 522(Iowa 1984)

RATIONALE: See Fassoulas v. Ramey, --- So.2d at ----; Terrell v. Garcia, 496 S.W.2d at 128. "That a child can be considered an injury offends fundamental values attached to human life.... Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization." Cockrum v. Baumgartner, 95 Ill.2d at 198, 69 Ill.Dec. at 172, 447 N.E.2d at 388-89. "The bond of affection between child and parent, the pride in a child's achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child's life." Beardsley v. Wierdsma, 650 P.2d at 293.

Nanke v. Napier, 346 N.W.2d 520, 523(Iowa 1984)

Full post as published by Des Moines Personal Injury Lawyer on April 01, 2008 (boomark / email).