'Wrongful Birth' Lawsuits

(Columbus, Ohio) The Ohio Supreme Court is considering Ohio's first 'wrongful birth' cases where mothers seek damages from hospitals and doctors for misreading prenatal tests and not informing them that their fetuses have profound genetic disorders. The mothers claim that they would have terminated their pregnancies if they had known.

Being considered on appeal are the lawsuits of Lois Coleman, whose child was born with a fatal genetic disorder, and Helen Schirmer, who gave birth to a son with severe mental retardation and physical disability. Defendants in the cases include Dr. Vikram Dogra, University Hospitals of Cleveland, Cleveland Women's Health Center, and the Mount Auburn Obstetrics & Gynecologic Associates in Cincinnati.

The Ohio Supremes has previously rejected 'wrongful life' lawsuits filed for damages on behalf of a child due to a doctor's negligence. However, the court has allowed 'wrongful pregnancy' lawsuits for damages from failed sterilization procedures. Although the 'wrongful birth' cases are the first before the Ohio court, precedents have been set by 20 other states which allow similar malpractice actions.

Interestingly and seemingly out of character, two Ohio Justices, Evelyn Lundberg Stratton and Terrence O'Donnell, have expressed reservations "about broadening the scope of medical malpractice claims, suggesting this is a public policy issue more appropriate for the Ohio General Assembly." I don't claim a lot familiarity with the subject, but this is the first time I can recall in recent history that higher court judges have indicated that an issue should be decided by the people's representatives. It seems that courts usually just give orders to legislatures.

Recent news reports from across the nation indicate that a number of state courts have considered the legality of 'wrongful birth' lawsuits. Examples are:

In Idaho, the Supreme Court turned downed a suit claiming that four doctors - Donald Smith, Marc Astin, Monte Crandall and Darren Coleman - failed to properly diagnose birth defects which resulted in a 'wrongful birth.'

In South Carolina, a 'wrongful birth' case alleging that Donald S. Wu, MD, didn't properly perform ultrasound testing is pending in court. A 'wrongful life' lawsuit against Dr. Wu by the same claimant had been previously disallowed.

And, in Massachusetts, in an arguably ludicrous case, a woman, Deborah Gaines, filed suit against an abortion clinic for the 'wrongful birth' of her daughter. While Gaines was at the clinic for an abortion, a gunman went on a rampage, ultimately murdering two people, and Gaines couldn't return for her abortion. Her lawsuit claims inadequate security at the clinic and seeks damages for having and raising a child.

The Ohio Supreme Court is expected to rule on the 'wrongful birth' issue by this fall.