In its decision filed on December 30, 2015, the Court of Appeals of the State of Oregon (“Appellate Court”) reversed the trial court’s dismissing the wrongful birth claim of the parents of a boy born with muscular dystrophy, holding that the trial court erred in dismissing the parents’ negligence claim on the grounds that (1) the parents failed to allege a physician-patient relationship between defendants and themselves; (2) they failed to sufficiently allege that defendants caused their injury; and (3) the allegations to support their claims for noneconomic damages were legally insufficient.
The parents had filed an Oregon medical malpractice wrongful birth lawsuit against their pediatrician and a medical center’s staff, alleging that they were medically negligent by failing to timely diagnose their older son’s muscular dystrophy before the parents decided to conceive a second child (the plaintiffs’ older child was diagnosed with Duchenne muscular dystrophy at age 7, whereas most children suffering from muscular dystrophy are diagnosed between the ages of 3 and 5).
Muscular dystrophy, a neuromuscular disease characterized by weakened muscles, loss of ability to walk, paralysis, and premature death, most often affects boys and the parents who have a child with muscular dystrophy have a 50% chance of having future sons with the serious malady. The parents claimed in their Oregon medical malpractice wrongful birth lawsuit that had their older son been properly and timely diagnosed, they would not have conceived their second child, who also suffers from muscular dystrophy.
The Defendants’ Lack Of Physician-Patient Relationship Argument
The defendants argued that they could not be held responsible for the wrongful birth of the plaintiffs’ younger child because that child had never been their patient (only the older child had been the defendants’ patient), and therefore there was no physician-patient relationship upon which they could be held responsible. The trial court agreed and dismissed the plaintiffs’ wrongful birth lawsuit.
The Appellate Court stated that whether a physician-patient relationship is required turns on whether nonpatients who allege that they were foreseeably harmed as a result of a physician’s breach of a standard of care are categorically foreclosed from asserting a negligence claim against the physician. The Appellate Court cited a prior case in which it held that the absence of a physician-patient relationship did not preclude nonpatients from recovering in negligence against the physician: professionals are not entitled to the benefit of an across-the-board ‘no duty’ rule merely because they are not in privity with those whom their negligent conduct affects.
The Defendants’ Other Arguments
The Appellate Court also addressed the two other reasons that the trial court had articulated for dismissing the plaintiffs’ negligence claims: that the plaintiffs had failed to allege that the defendants caused their injury, and that no physical impact or duty to the plaintiffs to avoid emotional harm had been alleged to support the plaintiffs’ request for emotional distress damages.
The Appellate Court concluded that the plaintiffs had sufficiently alleged that the defendants’ conduct was the cause of their harm: the plaintiffs alleged that but for the defendants’ failure to diagnose their older child’s muscular dystrophy and inform them of his condition and their reproductive risks, they would not have produced another child suffering from muscular dystrophy. The Appellate Court stated that those allegations directly link the defendants’ conduct—that is, their failure to diagnose the older child’s muscular dystrophy and inform the plaintiffs of his condition and its implications for them—with the injury that the plaintiffs suffered—that is, the infringement of their interest in making informed reproductive choices and avoiding conceiving or bearing their younger child: nothing more is necessary to sufficiently allege causation.
The Appellate Court noted that Oregon case law has consistently rejected claims for emotional distress damages caused by a defendant’s negligence in the absence of any physical injury (i.e., the physical impact rule). However, there are limited exceptions to the physical impact rule: a plaintiff may recover for purely psychic injury where the defendant’s conduct infringed on some legally protected interest apart from causing the claimed distress (‘legally protected interest’ refers to an independent basis of liability separate from the general duty to avoid foreseeable risk of harm).
The Appellate Court held that it had to decide whether (1) the plaintiffs have adequately pleaded the infringement of a distinct “legally protected interest” and (2) if they have, whether that interest is of sufficient importance as a matter of public policy to merit protection from emotional impact.
The Appellate Court held that the interest in making informed reproductive decisions is a “legally protected interest” under the limited circumstances alleged in this case—viz., circumstances in which a medical provider, under the operative standard of care, is obligated to inform the biological parents that their child (i.e., the provider’s patient) suffers from a genetic condition and to advise them as to the reproductive consequences of such a diagnosis. The Appellate Court stated that there can be little doubt that informing parents of their child’s genetic condition so that they can make informed reproductive decisions is an obligation imposed to avoid the severe emotional distress that is the direct consequence of its infringement. The Appellate Court concluded that the plaintiffs have alleged the invasion of a legally protected interest that is “‘of sufficient importance as a matter of public policy to merit protections from emotional impact.’”
The Appellate Court held that the plaintiffs’ allegations pertaining to noneconomic damages were legally sufficient and, as a result, their negligence claim did not reduce to one involving purely economic loss. For those reasons, the Appellate Court held that the trial court erred in dismissing the plaintiffs’ negligence claim on the ground that their allegations pertaining to noneconomic damages were legally insufficient.
However, with regard to the plaintiffs’ younger child’s claim, the Appellate Court held that a trier of fact would be required to compare the value of nonexistence—the state that the younger child would have been in but for the defendants’ alleged negligence—and the value of his life with muscular dystrophy, which, as a matter of law, that comparison is impossible to make.
Source Tomlinson v. Metropolitan Pediatrics, LLC.
If your baby was born with certain genetic diseases or genetic disorders that may have been discovered if appropriate genetic testing was timely done during your pregnancy, or otherwise prevented if timely and appropriate medical care had been provided, you may have the basis for a medical malpractice wrongful birth claim. Obtaining the prompt advice from a local medical malpractice attorney may help you decide if you can proceed with a medical malpractice case.
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