While medical malpractice claims have a variety of different causes, some occur more often than others. Among those are claims related to childbirth, including wrongful pregnancy and wrongful birth – these are typically referred to as prenatal torts.
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Let’s start by looking at the earliest case from the Ohio Supreme Court authorizing such actions, and then we’ll turn to a summary of current law and how it fits into Ohio medical malpractice law generally.
The Origins of Prenatal Tort Law in Ohio
In September 1971, Veda Bowman gave birth to her fourth child. Her doctors advised her that any future pregnancies would be hazardous. So, she and her husband agreed that she should undergo a sterilization procedure called tubal ligation. The surgery was performed shortly after she gave birth.
Yet, mere months after the operation, Mrs. Bowman became pregnant again. In mid-1972, she gave birth to premature twins, one of whom suffered from various physical and mental impairments. In response, she and her husband sued the doctor who performed her surgery in what has come to be known as a wrongful pregnancy lawsuit. They won, but the doctor challenged her victory all the way to the Ohio Supreme Court.
The Bowmans’ case was the first in a line of cases developing Ohio’s law regarding prenatal torts. Never before had the Ohio Supreme Court said that a person could sue after a failed sterilization procedure. In fact, in the early 20th century, courts in other states had rejected such claims on the grounds that the birth of a child is not a legal injury.
Today, ever since the Bowmans’ success, the law on prenatal torts has become much better developed, a topic to which we now turn.
Prenatal Torts: Wrongful Pregnancy, Wrongful Birth, and Wrongful Life
The Ohio Supreme Court, following the lead of other courts around the country, divides prenatal torts into three categories: claims for wrongful pregnancy, wrongful birth, and wrongful life. In a 1989 case, the Ohio Supreme Court summarized those three categories as follows:
- Wrongful pregnancy: “[A] suit filed by a parent for proximate damages arising from the birth of a child subsequent to a doctor’s failure to properly perform a sterilization procedure.”
- Wrongful birth: “[A] cause of action whereby parents, on their own behalf, seek to recover damages for the birth of an impaired child when the impairment was caused by the defendant’s failure to diagnose or discover a genetic defect . . . in time for the parent to obtain a eugenic abortion or to prevent pregnancy altogether.”
- Wrongful life: An action “brought by a child, on his own behalf, claiming damages due to the negligent failure of physicians to sterilize his parents.” This is the child’s counterpart to a wrongful pregnancy claim, except that the child is claiming that his or her very existence is a legal injury.
Ohio law permits claims that come within the first two categories, but not the third, which is why we’ve been ignoring it so far. As the Ohio Supreme Court has explained, recognizing wrongful life claims would require courts “to adjudicate that it would have been better [for the child] had she not been born,” which is a “moral, philosophical, and religious” determination, rather than a judicial one.
But whatever label is attached to such actions, the Ohio Supreme Court has made clear that wrongful pregnancy and wrongful birth claims are really just particular types of medical malpractice claims.
Medical Malpractice and Damages
As a quick refresher, medical malpractice occurs when a medical professional fails to meet the standard of care that the law requires of him or her, and that failure causes an injury to a patient.
Both wrongful pregnancy and wrongful birth claims follow that definition. In them, the plaintiff alleges that the doctor failed to meet the applicable standard of care (by, e.g., botching a sterilization operation or failing to diagnose a genetic abnormality), and that failure caused an injury to the plaintiff (e.g., the mother’s pain and suffering during the pregnancy and birth).
Because prenatal tort lawsuits are really medical malpractice lawsuits, and because they are brought by the parents, not the child, they are subject to the ordinary rules that apply to medical malpractice lawsuits, including the statute of limitations.
But there are some unique features to wrongful pregnancy and wrongful birth claims, particularly regarding what damages are available. In fact, even though the Ohio Supreme Court decided the Bowmans’ claim in 1976, it still took until 2006 for the Court to answer some of the most basic questions about damages in prenatal tort cases.
Specifically, some plaintiffs have tried to hold the defendant doctors liable for the costs of raising the child involved in a prenatal tort case. The Ohio Supreme Court has made clear that such damages are not available because the extent of any such damages would be too speculative. Instead, the parents can only recover for the damages from the pregnancy itself, which include such things as:
- Medical expenses;
- Loss of consortium during the pregnancy and birth;
- Emotional distress;
- The mother’s lost wages during a reasonable length of time; and
- The mother’s pain and suffering during the pregnancy and birth.
Recovering After a Wrongful Pregnancy or Birth
Because wrongful pregnancy and wrongful birth are types of medical malpractice claims, successfully pursuing them requires working with a knowledgeable Ohio medical malpractice attorney. Such claims are almost always complex, involve litigating against an experienced and well-funded insurance company, and require the presentation of expert testimony.
If you or a loved one has been injured by medical malpractice, including a wrongful pregnancy or wrongful birth, contact the lawyers of Dyer, Garofalo, Mann & Schultz today for a free case review.