Is this big? Time will tell. Either way, the Iowa Supreme Court ruled in a surprisingly progressive way, joining the majority of states (including Illinois – over 30 years ago) in recognizing a cause of action for wrongful birth. The case (Plowman v. Fort Madison Community Hospital, et al, is linked here).
The gist of the cause of action is this: if a physician knew or should have known that a child was likely to have a birth defect, but failed to inform the parents, and the parents would have terminated the pregnancy, the parents can sue for the expenses/etc of raising a severely disabled child.
As the court repeatedly asserts, the injury/harm is not the child, the injury/harm is the loss of the opportunity to make an informed decision whether or not to terminate a pregnancy.
Obviously this brings up some hot button issues. This blog is not the place to discuss those right now.
Oddly enough, Iowa does not allow a lawsuit for the wrongful birth of a “normal, healthy” baby. In other words, if your vasectomy is done poorly, too bad.
The case leaves some issues hanging, which will have to be ironed out by other courts in the future. For example:
- How disabled does the child have to be? The holding seems to be limited to a “severely disabled child”. What does that mean? As the dissent mentions, where is that line?
- What are the damages? Obviously the cost of raising a severely disabled child can be enormous. These damages appear to be allowable. As opposed to some courts, the Iowa Supreme Court refused to “monetize the joy of raising a severely disabled child to offset the costs of raising him.” In other words, the damages will not be reduced just because a parent loves his/her child and enjoys having him/her. This makes perfect sense – despite the burdens such a situation places on parents, all parents I’ve ever known who have children with severe disabilities love and enjoy them immeasurably. Will damages for emotional distress be included? Will medical expenses continue throughout the child’s life expectancy?
It will be interesting to see how this all plays out. Given the current makeup of the Iowa legislature, I wouldn’t be surprised to see this overruled by statute in the next session.
(Howard Zimmerle is a personal injury and medical malpractice attorney in the Quad Cities. He can be reached at 309-794-1660 or at hzimmerle [at] qclawyers.com)