The Court of Appeals of the State of Kansas (“Kansas Appellate Court”) held in its opinion filed on June 15, 2018 that “K.S.A. 2013 Supp. 60-1906 is constitutional since a cause of action for wrongful birth was unavailable when our Constitution was adopted and thus does not implicate Sections 5 or 18 of the Kansas Constitution Bill of Rights.”
The Kansas Legislature passed K.S.A. 60-1906 in 2013. K.S.A. 60-1906(a) states: “No civil action may be commenced in any court for a claim of wrongful life or wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor’s birth if the damages sought arise out of a claim that a person’s action or omission contributed to such minor’s mother not obtaining an abortion.”
The Kansas medical malpractice plaintiffs had filed a wrongful birth action against the defendant physician resulting from the birth of their daughter, alleging that the defendant failed to diagnose severe structural abnormalities and defects in the fetus’ brain. In utero, the fetus was subsequently diagnosed with schizencephaly and is severely and permanently neurologically, cognitively, and physically handicapped.
The Kansas medical malpractice plaintiffs alleged that the defendant physician’s failure to diagnose appropriately the structural abnormalities and defects denied them the right to make an informed decision on whether to terminate the pregnancy and, had they been informed of the physical, neurological, and cognitive defects, they would have terminated the pregnancy.
The plaintiffs alleged K.S.A. 2013 Supp. 60-1906 violates Section 5 and Section 18 of the Kansas Bill of Rights by denying them their right to trial by jury and their right to remedy by due course of law. The defendant filed a motion for judgment based on the pleadings, citing K.S.A. 60-1906(a). The trial court granted the motion, stating that the Kansas Supreme Court’s decision in a 1990 case that recognized wrongful birth as a new cause of action in Kansas required proof of two additional elements beyond the elements necessary to prove ordinary negligence. As a result, wrongful birth was a new cause of action that did not exist when the Kansas Constitution was adopted in 1859, and thus K.S.A. 2013 Supp. 60-1906 did not implicate Section 5 or Section 18 of the Bill of Rights.
Kansas Appellate Court Opinion
The Kansas Appellate Court stated that the question is whether Section 5 preserves a right to a jury trial in every tort—since the right to a jury trial generally applied to torts at common law—or whether Section 5 only applies to torts recognized in 1859. If Section 5 of the Bill of Rights applies generally to torts, K.S.A. 2013 Supp. 60-1906 is unconstitutional. If Section 5 only applies to specific causes of action recognized in 1859, K.S.A. 2013 Supp. 60-1906 is not unconstitutional since the Kansas Supreme Court first recognized a cause of action for wrongful birth in 1990.
The Kansas Appellate Court stated that “severe and permanent handicap” is an element of a wrongful birth cause of action, which is not necessary to prove the traditional tort of medical malpractice. The Kansas Appellate Court stated that because the 1990 Kansas Supreme Court case “requires at least one additional element, and has special rules for determining damages and the management of them during the child’s life, it seems clear the Kansas Supreme Court recognized wrongful birth as a new tort, not an extension of an already existing claim for medical malpractice.”
The Kansas Appellate Court further stated: “wrongful birth is based on public policy that did not exist in 1859” and “[t]he Kansas Supreme Court’s adoption of the new tort of wrongful birth was based on public policy [i.e., the fact the mother could have chosen to have an abortion had she not been denied her right to make an informed decision under facts which could and should have been disclosed].”
The Kansas Appellate Court held: “Section 5 only applies to those causes of action recognized in 1859. Section 5 is not implicated in this case, and the Legislature was within its power to enact K.S.A. 2013 Supp. 60-1906 because there was no right available under the common law for a wrongful birth action in 1859.”
Section 18 Of The Kansas Bill Of Rights
Section 18 of the Kansas Bill of Rights states: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
The Kansas Appellate Court held: “Section 18 only applies to causes of action existing at common law when the Kansas Constitution was adopted.”
The Kansas Appellate Court concluded that the plaintiffs “have not met their burden of proof to show the Legislature’s enactment of K.S.A. 2013 Supp. 60-1906 violates Section 5 and Section 18 of the Kansas Constitution Bill of Rights.”
Source Tillman v. Goodpasture, No. 117,439.
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