Does Oregon Law Recognize Claims for Wrongful Birth or Wrongful Life?

For most families, news of pregnancy, followed by the birth of a child, are both causes for celebration. But pregnancy, birth, and childhood don’t always have a storybook ending. Sometimes a child is born with a horrible disease or birth defect. Sometimes pregnancy and the birthing process cause great harm to the mother. Some of these results are an unpredictable and unfortunate part of life. But in some cases, the outcome was predictable, and might have been prevented, had the decision maker been properly provided with all the relevant facts. In such cases, what kinds of claims does Oregon recognize?

Oregon Supreme Court Tackles “Wrongful Birth” and “Wrongful Life” Claims.

In Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or. 431, 412 P.3d 133 (2018), the Oregon Supreme Court addressed the concept of “wrongful birth” and “wrongful life.” In that case, Kerry and Scott Tomlinson (“the Parents”) had two children, both boys. The older child was born in 2003. In 2004, when the child started exhibiting abnormal development, the Parents took him to Dr. Wagner, Metropolitan Pediatrics, LLC, and Legacy Emanuel Hospital & Health Center (collectively referred to as “the Defendants”) for health care. Finally, in October 2010, the Defendants diagnosed the child to have Duchenne’s muscular dystrophy (DMD), a horrible disease with debilitating consequences. In 2008, before the Parents knew that the older child had DMD, they had their second son. Unfortunately, the younger son also suffered from DMD.

The Parents and the younger son filed suit against the Defendants. They claimed that the Defendants failed to properly diagnose DMD in the older son and failed to communicate to the Parents the risk of having another child. DMD is a genetic disease, and according to the Parents’ allegations, the fact that their older son had DMD meant that there would be a 50 percent likelihood that any additional sons would also have DMD. The Parents further alleged that they would not have had another child had they been timely and properly informed that the older child had DMD. However, the trial court dismissed all the claims. The case was appealed and eventually reached the Oregon Supreme Court.

Wrongful Birth Claim of the Parents

With regard to the Parents, the trial judge’s ruling relied upon the fact that they had not been patients of the Defendants. Therefore, the judge reasoned that the Defendants did not have a physician-patient relationship with the Parents and therefore did not owe them a duty of care. The Oregon Supreme Court disagreed and held that under the circumstances presented in the case, a duty could be found to exist to the third-party parents. The Supreme Court essentially held that parents can reasonably expect a physician treating their child to warn them of dangers they face that are related to their child’s condition. Therefore, the Parents could pursue their claim.

Wrongful Life Claim of the Youngest Son

Claims that rest upon the factual premise that negligence caused a child to be born are called “wrongful life” actions. With regard to the younger child, the trial judge held that Oregon law does not recognize a claim by a child “that he or she never should have been born.” The Oregon Supreme Court agreed with the trial court on this ruling. In explaining its decision, the Court noted that 27 states around the country have refused to recognize wrongful life claims. The Oregon Supreme Court agreed with this majority position. One factor that weighed heavily on the Court is the impossibility of calculating damages. One would be required to compare the value of the child’s actual life to the value of nonexistence. The Court felt that such a task could not be completed in a principled way.

Call with Questions

In essence, the wrongful birth claim examined by the Court is another form of medical malpractice. While we acknowledge the difficulty of some of these issues, we appreciate that our courts strive to hold wrongdoers accountable for their actions. If you or a loved one has suffered from the wrongdoing of another, please call us with your questions. We are pleased to help.

 


Call us at 1.877.928.9147 For A Free Consultation!

Awards & Recognitions

The American Association for Justice award logo Oregon Trial Lawyers Association Membership Badge Nelson MacNeil Rayfield Trial Attorneys PC BBB Business Review
AV Preeminent Award for Ethical Standards and Legal Ability. The highest peer rating standard. Super Lawyers Award Logo

We are proud sponsors of:

NMR sponsored Boys and Girls Club of Albany, The YMCA, Mothers Against Drunk Driving, and more.