Ohio Supreme Court limits what parents can win in wrongful birth cases

Justices in the court's dissenting opinion argue that the state is charting its own course by limiting damages in cases against physicians.

By Amy Lynn Sorrel — Posted April 10, 2006

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The Ohio Supreme Court granted protection to physicians in the state's first legal test of wrongful birth cases. These are lawsuits in which parents of a child with disabilities argue that they were wrongfully deprived of the right to terminate the pregnancy after a doctor or hospital failed to detect and inform them of genetic defects.

The 4-3 decision allows parents to sue doctors for negligent medical advice or genetic testing that resulted in the birth of a child with disabilities. But they can't recover the costs of raising a child they claim they would have aborted. Physicians would be responsible only for the costs of the pregnancy and the birth, the court ruled.

The split decision underscores the divergence in opinion over whether wrongful birth cases should be allowed. It comes as legislative efforts are proceeding in Ohio that would make it the seventh state to prohibit the lawsuits altogether, says the Ohio State Medical Assn.

Doctors say the Supreme Court ruling is consistent with liability standards in medical liability cases, but plaintiff attorneys disagree and argue that the ruling virtually nullifies such claims. "The net effect of the ruling is to give legal immunity to doctors and hospitals for their own negligence," said attorney Mark Smith, who represented the couple in the case.

He said the ruling means that parents and lawyers have no justifiable means for bringing a lawsuit, because litigation costs would far outweigh any potential award. "The courts are well aware of that," he said.

OSMA General Counsel Almeta Cooper said she does not interpret the decision "as giving physicians immunity, because they are still expected to follow accepted standards of care" and give appropriate medical information to patients to make the best decision.

Parents sue

Richard and Helen Schirmer sued Mt. Auburn Obstetrics & Gynecologic Associates and Children's Hospital Medical Center in Cincinnati after their son, Matthew, was born with a genetic disorder.

According to court records, Helen Schirmer discovered that she had a chromosomal condition that could cause severe birth defects, such as mental retardation. Because she was told there was a 1 in 3 chance of passing it on to her fetus, she and her husband sought genetic counseling to give them the option of aborting the fetus if it carried the defect. Doctors told the couple the fetus was developing normally, court records stated.

The Schirmers accused the physicians of improper testing and depriving them of their right to make an informed decision to terminate the pregnancy. They asked for damages for the emotional and physical costs of raising a child with disabilities.

The Schirmers were testing new waters with their wrongful birth claim by challenging case law that allowed parents to recover damages only for the pregnancy in a wrongful pregnancy claim. "Until today, the legitimacy of [a wrongful birth action] had not been addressed by this court," the majority opinion stated. In its ruling, the court also said it "rejected" "wrongful life" claims, in which the child with disabilities brings a lawsuit for being born.

The Supreme Court decision overturned an appellate court ruling that the high court said "ignored the underlying but critical fact that [Helen] Schirmer claims that she would have terminated this pregnancy had she known the condition was present," Justice Maureen O'Connor wrote in the majority opinion.

"We cannot simply skirt that claim and award damages based on a calculation of life versus impaired life, because unimpaired life was never a possibility in this situation," the opinion said.

The court further determined that there is no connection between a physician's negligence and "direct responsibility for the condition." Instead, the court likened the case to a medical malpractice claim and said the couple was entitled only to damages for the pregnancy, "rather than the life of the child."

Although the abortion issue loomed, the court stated, "Regardless of the multitude of moral, religious policy and legal arguments inherent in the abortion debate, the holding today merely recognizes that medical negligence during prenatal care that impacts parents' ability to decide whether to continue the pregnancy may be actionable."

Three justices dissent

In the dissenting opinion, justices questioned the court's logic in granting parents a limited right to sue without providing a way to recover any meaningful damages.

"Patients must be equipped to defend themselves against the hubris of medicine," Justice Paul Pfeifer wrote. "Should prenatal counseling be the only area where doctors are free from liability for negligence?"

Drawing attention to the public policy debate over the issue, Pfeifer also noted, "Ohio has staked out a unique position in regard to damages in this type of case" by limiting them to costs associated with the pregnancy.

Most courts have allowed parents to recover the costs associated with raising a disabled child in wrongful birth cases, Pfeifer stated, citing as examples Alabama, Delaware, Illinois, Kansas, Massachusetts, Maine, New Hampshire, New Jersey, New York, Washington and the District of Columbia.

A more reasonable public policy argument would be to prohibit the recovery of the costs of raising a normal child, according to Gerald Leeseberg, a legislative committee member of the Ohio Academy of Trial Lawyers.

"But we're not talking about a normal child. That's a conundrum the court did not want to address, " he said.

At press time, Ohio Gov. Bob Taft was expected to sign a bill prohibiting both wrongful birth and wrongful life claims, said Taft's spokesman Mark Rickel. The House and Senate passed the legislation in March.

Six other states have laws prohibiting both wrongful birth and wrongful life lawsuits: Idaho, Minnesota, Missouri, Pennsylvania, South Dakota and Utah.

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Case at a glance

Schirmer et al. v. Mt. Auburn Obstetrics & Gynecologic Associates Inc. et al.

Venue: Ohio Supreme Court
At issue: Whether parents can sue physicians under a wrongful birth claim when negligent medical advice or genetic testing resulted in the birth of a child with disabilities. The court said parents can recover damages related to the pregnancy and birth but not the costs of raising a child.
Potential impact: Doctors say the decision is consistent with the standard of care in traditional medical liability cases and holds them liable for their limited responsibility in such cases. Trial lawyers say the ruling does not protect patients from physician negligence.

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