The Ohio Supreme Court, more conservative than it used to be, really must have struggled over its March 3 decision sharply limiting damages that parents can recover for bad prenatal genetic test advice.
For one thing, the case was pending for nearly a year before it was released. For another, it reads like a U.S. Supreme Court decision, in that there are five separate opinions from a seven-justice court.
This case, Schirmer v. Mt. Auburn Obstetrics and Gynecologic Associates Inc. , is from Hamilton County. I did some consulting work on the case on behalf of the plaintiffs.
The case involves what are called prenatal torts. To try and understand this fractured decision, we must look at the prenatal tort cases in context.
In 1989 Ruth Johnson went to University Hospitals of Cleveland for a tubal ligation. She did not want to have any more children. The procedure wasn't performed properly, and Johnson became pregnant.
She gave birth to a normal, healthy baby girl. The first question to consider here is whether anything has happened for which the law provides a remedy.
Tort law, the field I teach, deals with such questions. To recover, a tort victim must prove someone breached a duty owed to her and caused an injury.
In Johnson's case, the Ohio Supreme Court decided this was a tort and gave it a name: "wrongful pregnancy." The court then defined wrongful pregnancy as a claim brought by a parent for damages arising from the birth of a child subsequent to a doctor's failure to perform a sterilization procedure properly.
But was Ruth Johnson injured? She tried to recover all the expenses of raising the child — the economic cost resulting from an unwanted pregnancy — but the court wouldn't allow this, holding as a matter of Ohio public policy that the birth of a normal, healthy child can never be seen as an injury to a parent.
The court adopted the "limited damages" rule, allowing parents in wrongful pregnancy cases to recover pregnancy-related expenses only — no child-rearing costs and no emotional distress over having that extra child.
In 2000 another wrongful pregnancy case came before the high court, again after a failed sterilization procedure. But this time the child was born with a congenital heart defect and died at 15 months. The court stuck to its "limited damages" rule, refusing to award extra money for the emotional anguish and extra expenses involved with an unhealthy baby. After all, the court said, the doctor who mis-perfomed the sterilization didn't cause the congenital heart defect.
On the same day in 2000 the court tackled a claim brought on behalf of an acutely disabled child whose parents had sought genetic testing but who alleged doctors failed to inform them of very problematic test results. This was not the parents' claim, but the child's. She sought money damages for her anticipated inability to support herself when she was an adult.
As soon as the court gave this tort a name — "wrongful life" — the case was over. Chief Justice Thomas Moyer put it this way: "In short, we are asked to hold that such a child may recover damages for the 'injury' of having been born. ... The law does not sanction an award of damages based on the relative merits of being versus nonbeing."
Justice Paul Pfeifer took issue with this labeling, noting neither the parents nor the child were claiming life was wrongful but were seeking the very real economic and emotional damages commensurate with the injuries in the case.
This brings us back to Schirmer. Mrs. Schirmer had learned from testing after previous unsuccessful pregnancies that she carried a genetic condition that caused her no harm but which could cause severe birth defects in a child. When she became pregnant, she sought genetic testing. She claimed she was told she was having a healthy baby girl, when in fact she gave birth to a severely compromised baby boy with the exact condition for which she had sought testing.
She and her husband sought damages for the extra costs of raising a disabled child and for their emotional distress.
In the past, this tort has been called "wrongful birth." While acknowledging some value in this shorthand description for a tort resulting from negligent genetic counseling or failure to diagnose a fetal defect, four justices shied away from that name, choosing to view the case as a traditional medical malpractice case. From there, things fell apart.
Justice Maureen O'Connor wrote the lead opinion. She took the position that, because the doctors didn't cause the genetic problem and couldn't have prevented it with any kind of treatment, the only "damage" to Mrs. Schirmer was the lost opportunity to decide whether to terminate the pregnancy. Thus her recovery should be limited to pregnancy-related expenses, the same kinds of damages as were allowed in the wrongful pregnancy cases.
Moyer recognized that the Schirmers had more than limited damages but would limit the damages in the same way on public policy grounds.
"We will not hold that a genetically unhealthy child is inherently less valuable than a healthy child and thereby force courts to decide which children qualify as unhealthy and what costs qualify as extraordinary," he wrote.
So Moyer signed on to the limited damages rule.
Pfeifer, joined by Justice Alice Robie Resnick, rejected the limited damages rule. They would allow all extraordinary child-rearing expenses and damages for emotional distress, because what happened to the Schirmer's baby was the exact genetic problem they had sought testing to avoid.
Justices Terence O'Donnell and Judith Lanzinger each dissented. Each joined the other's dissent, and Justice Evelyn Stratton joined both. O'Donnell took the position that there should be no such judge-made tort as "wrongful birth" because life in any form is never an injury. Lanzinger believes this case is not a traditional medical malpractice case but an "unwarranted judicial creation."
So, what majority of justices agree on any one principle? Four justices agree that this is a medical malpractice case in which the parent's injury is the lost opportunity to terminate the pregnancy. So four say this is a recognized tort. But of those four, two would allow only limited damages while two would allow extraordinary child-rearing expenses and mental distress.
Five justices agree that there should be no recovery for extraordinary child-rearing expenses or for emotional distress. But of those five, three say the tort shouldn't exist and would thus allow no damages.
You do the math. What is the majority position?
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.