Ohio Permits Wrongful Birth Action - Sort Of
The Ohio Supreme Court has allowed recovery of costs of pregnancy and birth-related expenses of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease. Although the decision is nominally for the plaintiff, the right given in a hollow one because, all things considered, the birth-related expenses will be relatively small and the more significant expenses - the extra costs of raising a disabled child - cannot be recovered.
The case is what is known as a "wrongful birth" case; i.e. one in which "the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease.”
However, Court denied the claims of the parents for other economic losses and for emotional damages claimed by the parents because of having to raise an impaired child, saying that they were not a proximate cause of the defendant's negligence. More specifically, "consequential noneconomic damages require a valuation of being versus nonbeing. A judge or jury would be asked to weigh the emotional and physical tolls resulting from raising and supporting a disabled child versus not having a child at all. No such damages are recoverable."
The Court made it clear that it was not passing judgment on abortion. It said: "It is important to note that the issue of whether abortion should be considered a proper course of treatment during prenatal care is not before this court. 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 the parents’ ability to decide whether to continue the pregnancy may be actionable."
The case is Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc.; read it here.