Just when you thought the world was bad enough, along comes Ohio's Most Selfish couple!GONGWER OHIOREPORT
Information Pertinent to Legislative and State Department Activities Since 1906
REPORT NO. 72, VOLUME 74-- WEDNESDAY, APRIL 13 2005
SUPREME COURT ASKED TO RECOGNIZE MALPRACTICE CLAIM FOR 'WRONGFUL BIRTH' IN CASE OF DOCTORS WHOSE TESTS FAILED TO DISCOVER FETAL DISORDER
Parents of a child born with severe physical and mental disabilities asked the Ohio Supreme Court on Wednesday to let them proceed with a "wrongful birth" malpractice suit against the doctors and hospital whose tests failed to discover the disorder.
Helen and Richard Schirmer had told doctors they intended to terminate the pregnancy if results of the special genetic testing were positive for the condition in the fetus. Specialists at the Children's Hospital Medical Center in Cincinnati who performed the test and interpreted the results told the couple the fetus exhibited an inactive form of the disorder.
Based upon that information, the Schirmers went forward with the pregnancy. Their son Matthew was born in September 1997 with multiple, severe physical and mental impairments as a result of the active genetic defect that the tests had not disclosed. The child is unable to speak, crawl, stand, feed or bathe himself.
The Schirmers filed a "wrongful birth" suit, a type of claim offered on behalf of a child's parents. They alleged that if the health care professionals upon whom they relied had performed competently, the child would not have been born. Thus, they would not have incurred the economic costs and personal trauma they will continue to experience in providing lifetime care.
A Hamilton County Common Pleas judge ruled state law did permit the couple to seek damages, but only for costs of obstetric care and delivery. The court said no economic or non-economic damages could be recovered in a wrongful birth action. The 1st Ohio District Court of Appeals said the couple could seek damages to cover their economic costs in providing care, but not for pain and suffering.
"I think the issues we have today...boil down to this: will Ohio allow wrongful birth cases, and if so, what remedy will our state allow the parents?" Mark Smith, representing the Schirmers, told justices in oral arguments.
Mr. Smith acknowledged the court has already "soundly rejected" claims seeking damages in "wrongful life" suits filed on behalf of a child born with birth defects. The court also has limited recovery in "wrongful pregnancy" arising from faulty sterilization procedures. He drew a distinction between those types of suits and "wrongful birth" claims.
Justice Terrence O'Donnell: "Well, if this is a question of public policy, why shouldn't' the Legislature engage?"
Mr. Smith: "I believe, your honor, you could ask that question both ways."
Justice O'Donnell: "Well, I want to ask it this way."
Mr. Smith: "If the Legislature wants to speak to these cases it certainly had an ample opportunity to do so."
Justice O'Donnell: "You feel that we are a public policy creating body?"
Mr. Smith: "I think in all fairness (the court) in many, many decisions has spoken to public policy both in finding for plaintiffs and in finding for defendants. Certainly public policy is something that the court factors in and yes, at times, it does decide it."
Mr. Smith contended the Schirmers should be allowed to recover not only economic damages for the care of their son, but non-economic damages as well. He said juries decide such issues daily, and the case should be permitted to proceed to trial.
Mr. Smith: "This claim by the parents for non economic damages, I find not too dissimilar from a loss of consortium claim."
Justice Pfeifer: "You argue this is not revolutionary, it simply fits into the tort law like a lot of other things do. Science has put us here. A generation or two ago we wouldn't be dealing with these questions because there wouldn't have been the ability to know ahead of time."
Mr. Smith: "And a generation or two ago the child would not have survived. It's the same science that creates both." He asked the court to evaluate whether parents who face "a crushing economic and emotional burden" should be fairly compensated.
Attorneys for the hospital and other defendants argue that the Supreme Court has never authorized extending the liability of a physician or hospital to cover parental costs of caring for a child with birth defects when they were not caused by any act or omission of the defendant.
They said the only outcome proximately caused by the faulty genetic test was the birth rather than the abortion of the child, not the onset of his congenital disabilities.
"Our argument is relatively direct and to the point. This is the first time that the wrongful birth issue has been before this court. We believe that wrongful birth should be rejected," Frank Woodside, representing defendants, told the court.
Chief Justice Thomas Moyer sought to view the matter aside from the public policy debate.
Chief Justice: "They requested or ordered the defendants to perform certain tests that would enable them to make a decision. Wouldn't you agree there was a breach of that duty here? Just applying normal tort, let's take all the other sociological and emotional issues out of it. Just applying tort law principles, wasn't there a breach of a duty here?"
Mr. Woodside: "I do agree...that we have to look at the four elements of negligence. You have to have a duty, a breach, proximate cause and damages. As we're here on an issue of law, we would agree that there was a duty and as pled there would be a breach. The question then would become if there is such a breach, what damages are recoverable in this particular state?"
Justices also heard oral arguments Wednesday in a related case dealing with the "wrongful life" theory. A Cuyahoga County woman asked the court to let her pursue a malpractice claim against University Hospitals of Cleveland for allegedly negligent pre-natal testing. She said the tests failed to discover her unborn child had a profound and fatal genetic defect. The infant died 12 days after birth.
The trial court granted the defendants summary judgment dismissal of all claims against them. Although the 8th Ohio District Court of Appeals upheld the trial judge's denial of the "wrongful life" claim, it sent the case back to common pleas court to consider legal arguments on a "wrongful birth" claim.
