Lead Opinion
This appeal presents a question of first impression under Iowa law: whether the parents of a child born with severe disabilities may bring a medical negligence action based on the physicians’ failure to inform them of prenatal test results showing a congenital defect that would have led them to terminate the pregnancy. This is known as a wrongful-birth claim. Other jurisdictions are divided as to the parents’ right to sue, with most states recognizing such claims. We previously held parents have no right to sue for wrongful pregnancy based on a medical mistake that led to the birth of a “normal, healthy child.” Nanke v. Napier,
The parents in this Iowa action allege the prenatal doctors failed to inform them of abnormalities noted during an ultrasound. Their child was born with severe cognitive defects and remains unable to speak or walk at age five. The parents allege they would have chosen to terminate the pregnancy if they had been informed of what the ultrasound allegedly showed. They seek to recover for their ordinary
For the reasons explained below, we join the majority of courts to allow parents to sue for the wrongful birth of a severely disabled child. This theory fits within general tort principles for medical negligence actions. We reverse the district court’s summary judgment and remand the case to allow the parents’ wrongful-birth claims to proceed consistent with this opinion.
I. Background Facts and Proceedings.
The following facts are undisputed or set forth in the light most favorable to the plaintiffs. Pamela Plowman and Jeremy Plowman were married with two children, ages four and three, when Pamela became pregnant with their third child, Z.P., in late 2010. At the time, Pamela was employed at a retirement community working as a cook’s assistant. On January 18, 2011, Pamela began seeing Leah Steffensmeier, a physician specializing in obstetrics and gynecology, for her prenatal care at the Fort Madison Community Hospital (FMCH).
On April 25, approximately twenty-two weeks into her pregnancy, Pamela underwent an ultrasound at FMCH to assess fetal growth. Dr. Pil Kang, a radiologist employed by Davis Radiology, P.C., interpreted the results and prepared a report. Dr. John Paiva, another radiologist at that clinic, reviewed and signed the report. The report found that Z.P. displayed head abnormalities and recommended follow-up. Specifically, the report noted,
1) Suboptimal visualization of the head structure with cavum septum pellucidum not well seen. Recommend follow-up to document normal appearance.
2) Single, live intrauterine pregnancy consistent with 22 weeks 3 days by today’s, scan.
3) Slightly low head circumference to abnormal circumference ratio without definite etiology. Again, consider followup.
The films of the ultrasound showed Dr. Kang took three measurements of the head circumference. Each indicated Z.P.’s head was abnormally small, less than the third-to-sixth percentile for his development. Dr. Kang did not report these findings. Rather, he reported the head/abdominal circumference of Z.P. was “within two standard deviations of normal,” with the head circumference/abdominal circumference ratio being “slightly” below normal. On May 11, Pamela met with Dr. Steffen-smeier, who told her the ultrasound showed “[t]hat everything was fine” with the baby’s development. Pamela was never informed “that the radiologist had found any abnormalities, or that the ultrasound was in any way abnormal.” No further testing was done to follow up on the ultrasound results as recommended in the report.
On August 17, Pamela delivered Z.P., a baby boy. The delivery was uneventful. About two months after birth, Pamela began to have concerns about Z.P.’s development. She noticed he “had bicycle movements, smacking of the tongue. He’d stare off a lot, he’d stiffen up.” At four months after birth, Z.P.’s pediatrician recommended Pamela see a specialist in Iowa
On July 31, 2013, Pamela filed this lawsuit against FMCH, The Women’s Center, Fort Madison Physicians and Surgeons, Davis Radiology, P.C., and doctors Kang, Paiva, and Steffensmeier. She does not claim the defendants caused Z.P.’s disabilities; rather, she alleges the doctors negligently failed to accurately interpret, diagnose, monitor, respond to, and communicate the fetal abnormalities evident in the April 25, 2011 ultrasound. As a result of this negligent care, Pamela gave birth to Z.P., a child with severe brain abnormalities. If she had been informed of the abnormalities prior to birth, she “would have terminated her pregnancy.” The petition sought damages for (1) the cost of past, present, and future extraordinary care required for Z.P. as a result of his disabilities; (2) the cost of ordinary care raising the child; (3) Pamela’s mental anguish; and (4) Pamela’s loss of income. Jeremy filed a separate action, mirroring Pamela’s claims. No claim has been made on behalf of Z.P.; rather, the parents sue for their own individual injuries and costs attributable to Z.P.’s disabilities.
The defendants filed answers denying negligence and asserting the petitions failed to state a claim upon which relief could be granted. The radiologists also alleged plaintiffs could not prove causation because Z.P.’s injuries were caused by a preexisting medical condition. The district court consolidated the actions.
Meanwhile, Pamela and Jeremy divorced in September of 2013. Jeremy and Pamela share physical custody of their children, including Z.P. Pamela lives with her new fiancé in Keokuk, Iowa. Pamela quit working so she could attend Z.P.’s medical appointments. Z.P. does not walk or talk and is frequently sick; however, Pamela also noted that when he is not sick, he is “really happy” and “a good baby.” Pamela testified she “really enjoy[s] spending time with [Z.P.] and get[s] a lot of happiness from him.”
On September 11, the defendants filed a motion for summary judgment. The motion stated,
Plaintiffs do not assert that Defendants’ care and treatment caused [Z.P.’s] injuries. Instead, Plaintiffs allege that had “Mrs. Plowman [been] informed of her unborn child’s potential brain abnormality, Mrs. Plowman would have terminated her pregnancy and Plaintiffs injuries would have been avoided.” This is a wrongful birth claim.
Defendants argued that a cause of action for wrongful birth had not been recognized in Iowa; therefore, plaintiffs’ claims should be dismissed. Plaintiffs resisted the motion, arguing Iowa law did not preclude a wrongful-birth claim.
On May 27, 2015, the district court granted the defendants’ motion for summary judgment. The court expressly declined to recognize a new cause of action for wrongful birth, stating a decision to do so was more properly left “to the legislature or the Supreme Court.” Plaintiffs appealed, and we retained the case.
“We review a district court ruling granting a motion for summary judgment for correction of errors at law.” Estate of Gray ex rel Gray v. Baldi,
“The moving party has the burden of showing the nonexistence” of a genuine issue of material fact. Nelson v. Lindaman,
Because resolution of issues of negligence and proximate cause turns on the reasonableness of the acts and conduct of the parties under all the facts and circumstances, actions for malpractice “are ordinarily not susceptible of summary adjudication.”
Campbell v. Delbridge,
III. Analysis.
The threshold question is whether Iowa law allows parents to sue for wrongful birth. Defendants allege that the claim is a new cause of action unsupported by Iowa law. Plaintiffs, on the other hand, allege that this case falls within the traditional elements of medical negligence and note a clear majority of other jurisdictions allow parents to sue under these facts. We conclude that wrongful birth fits within common law tort principles governing medical negligence claims, and no public policy or statute precludes the cause of action.
A. Wrongful-Birth Jurisprudence.
We begin by defining terms. Courts categorize three distinct types of claims. Nanke,
These labels are not instructive. Any “wrongfulness” lies not in the life, the birth, the conception, or the pregnancy, but in the negligence of the physician.
The harm, if any, is not the birth itself but the effect of the defendant’s negligence on the parents’ physical, emotional, and financial well-being resulting from the denial to the parents of their right, as the case may be, to decide whether to bear a child or whether to bear a child with a genetic or other defect.
Viccaro v. Milunsky,
In Nanke, we addressed whether parents could recover for wrongful pregnancy in Iowa after a failed abortion procedure led to the birth of a healthy child.
Our ruling today is limited to the unique facts of this case and the narrow issue presented. We hold only that the parent of a normal, healthy child may not maintain an action to recover the expenses of rearing that child from a physician whose alleged negligence in performing a therapeutic abortion permitted the birth of such child.
Id. at 523 (emphasis added). We now address the separate question of whether parents of a child born with severe disabilities can sue for wrongful birth.
In a wrongful-birth action, parents of a child born with a detectable birth defect allege that they would have avoided conception or terminated the pregnancy but for the physician’s negligent failure to inform them of the likelihood of the birth defect. Keel v. Banach,
A majority of states recognize wrongful-birth claims. At least twenty-three states recognize the claim by judicial decision.
“Two developments help explain the trend toward judicial acceptance of wrongful birth actions.” Smith v. Cote,
Claims & Their Dangerous Effects on Parents, 34 B.C. J.L. & Soc. Just. 365, 370 (2014) (recognizing that the American Congress of Obstetricians and Gynecologists recommends doctors test all pregnant women for genetic abnormalities) [hereinafter Harris].
Second, Roe v. Wade and its progeny established as a matter of federal constitutional law that a woman has a right to choose whether to terminate her pregnancy free from state interference before the fetus is viable.
it is possible for prospective parents (1) to know, well in advance of birth, of the risk or presence of congenital defects in the fetus they have conceived; and (2) to decide to terminate the pregnancy on the basis of this knowledge.
Cote,
B. Wrongful Birth as a Cognizable Claim Under Iowa Law. Against this backdrop, we turn to whether Iowa law allows a cause of action for wrongful birth. In Dier v. Peters, we addressed whether Iowa tort law allows a cause of action for paternity fraud.
1. Whether a wrongful-birth claim is consistent with traditional concepts of common law. From our vantage point, a wrongful-birth claim “fit[s] comfortably within the traditional boundaries of [negligence] law.” See id. at 7. We join the majority of other jurisdictions in concluding wrongful-birth claims fall within existing medical negligence principles. See, e.g., Lininger ex rel. Lininger v. Eisenbaum,
The ' traditional elements of a medical negligence action are (1) an applicable standard of care, (2) a violation of this standard, and (3) a causal relationship between the violation and injury sustained. Phillips v. Covenant Clinic,
Courts declining to allow wrongful-birth claims have questioned the elements of causation and injury. One judge who dissented from a decision allowing a wrongful-birth claim concluded the physician “cannot be said to have caused” the child’s genetic abnormality:
The disorder is genetic and not the result of any injury negligently inflicted by the doctor. In addition it is incurable and was incurable from the moment of conception. Thus the doctor’s alleged negligent failure to detect it during prenatal examination cannot be considered a cause of the condition by analogy to those cases in which the doctor has failed to make a timely diagnosis....
Becker,
Yet we have previously allowed patients to sue for a physician’s negligent failure to diagnose health problems the physician did not cause. In DeBurkarte v. Louvar, a physician failed to timely diagnose breast cancer.
Causation “take[s] on a markedly more complex character ... in those cases in which alleged negligence combines with a preexisting condition to cause the ultimate harm to the plaintiff.” Mead v. Adrian,
Courts disallowing wrongful-birth claims reject the view “that the existence of a human life can constitute an injury cognizable at law.” Azzolino v. Dingfelder,
[Wjhile both the majority and concurring opinions attempt to frame the relevant issue ... as whether [the child’s] life can constitute a legal injury in the context of a prima facie case for medical malpractice, “we need not find that ‘life, even life with severe defects,’ constitutes a legal injury in order to recognize the ... claim for relief’ because “[t]he resulting injury to the plaintiff parents lies in their being deprived of the opportunity to make an informed decision to terminate the pregnancy[.]” ... [Although one facet of a plaintiffs compensable damages in such cases may consist of extraordinary costs associated with the care and education of a child with birth-defect-related disabilities, those damages are available only because they are the result of a physician’s violation of the patient’s right to make an informed procreative decision[J
Id. at 695 (some alterations in original) (footnote omitted) (first quoting Lininger,
The compensable injury in a wrongful-birth claim is the parents’ loss of the opportunity to make an informed decision to terminate the pregnancy. This is analogous to a claim for medical negligence based on lack of informed consent. Both types of claims arise out of “the unquestioned principle that absent extenuating circumstances a patient has the right to exercise control over his or her body by making an informed decision.” Pauscher v. Iowa Methodist Med. Ctr.,
We are persuaded by the New Jersey Supreme Court’s analysis comparing informed-consent and wrongful-birth actions:
In sum, the informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiffs position would deem material to her decision. What is or is not a medically accepted risk is informed by what the physician knows or ought to know of the patient’s history and condition .... In both causes of action, the plaintiff must prove not only that a reasonably prudent patient in her position, if apprised of all material risks, would have elected a different course of treatment or care.... [T]he test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor’s negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy.
Canesi ex rel. Canesi v. Wilson, 158 N.J. 490,
“[A]n action in tort for a negligently performed or delayed medical diagnostic procedure lies within the common law of negligence.... ” Garrison,
2. Whether there are prevailing policy reasons against recognizing such a cause of action. Defendants contend that recognition of a wrongful-birth action would contravene Iowa public policy. Public policy “is not predicated on this court’s ‘generalized concepts of fairness and justice.’ ” Id. at 12 (quoting Claude v. Guar. Nat’l Ins. Co.,
Rather, “[w]e must look to the Constitution, statutes, and judicial decisions of [this] state, to determine [our] public policy and that which is not prohibited by statute, condemned by judicial decision, nor contrary to the public morals contravenes no principle of public policy.”
Id. (alterations in original) (quoting Claude,
In Nanlce, we confronted whether the parents of a “normal, healthy child” could recover for costs associated with raising the child, after a negligently performed abortion.
The bond of affection between a child and parent, the pride in the. child’s achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child’s life.[w]hen the defendant’s tortious conduct has caused harm to the plaintiff ,.. and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages....
The defendants contend the same reasoning applies here. They argue a contrary holding would stigmatize the disabled community, encourage abortions, increase the cost of prenatal care, and result in fraudulent claims. We are not persuaded those concerns warrant closing the courthouse door to parents harmed by medical negligence.
First, we distinguish the policy concerns expressed in Nanke. In a wrongful-birth claim, the injury is not the resulting life of a healthy child as in Nanke, but rather is the parent’s deprivation of information material to making an informed decision whether to terminate a pregnancy of a child likely to be born with severe disabilities. Our informed-consent caselaw rests on the patient’s right to exercise control in making personal medical decisions. See Pauscher,
The legislature also has made a policy choice to help ensure a woman makes an informed decision whether to terminate or continue her pregnancy. Iowa Code section 146A.1(2) states that as a prerequisite to an abortion, a woman must be “provided information regarding the options relative to a pregnancy, including continuing the pregnancy to term and retaining parental rights following the child’s birth, continuing the pregnancy to term and placing the child up for adoption, and terminating the pregnancy." (Emphasis added.);
Nanke relied in part on an offset rule.
the extraordinary financial burden the [Plaintiffs] claim to have suffered, and will continue to suffer, is sufficiently unrelated to the pleasure they will derive from raising [the disabled child] as to preclude operation of the benefit rule, at least to the extent that it would require some offset against those particular damages.
we would have no problem assessing damages. More importantly we would not even consider the theory that the joy of parenthood should offset the damages. Would anyone in their right mind suggest that where a healthy fetus is injured during delivery the joy of parenthood should offset the damages? There is no more joy in an abnormal fetus come to full term than a normal fetus permanently injured at delivery. Both are heartbreaking conditions that demand far more psychological and financial resources than those blessed with normal children.can imagine.
Atlanta Obstetrics & Gynecology Grp. v. Abelson,
Defendants argue that allowing wrongful-birth claims will stigmatize the disabled
Defendants also contend that allowing a right to sue for wrongful birth will increase the cost of prenatal care by encouraging physicians to practice “defensive medicine” and that increased disclosure of risks will lead to more abortions. We disagree that these concerns justify closing the courthouse door.
A physician need not, indeed should not, advise a patient on whether to abort a child. A physician’s responsibility is simply to exercise due care to provide the information necessary for the patient to make an informed decision. If physicians do this, they need not fear a lawsuit if parents bear a child of one sex rather than the other, or even a child with congenital defects. The physician will not be liable for the patient’s informed decision on the abortion question. To deny ,.. any remedy for a physician’s negligently withholding information or negligently providing misinformation so immunizes the physician as to encourage the physician himself, in effect, to make the abortion decision.
Azzolino,
Finally, defendants argue that recognition of wrongful-birth claims will lead to fraudulent claims. The Missouri Supreme Court declined to allow lawsuits for wrong
We must consider “the public policy implications of an opposite ruling.” Dier,
3. Whether Iowa statutes speak to the issue. Turning to the last Dier factor, defendants argue Iowa should not recognize a wrongful-birth claim because Iowa Code section 613.15A and Iowa Rule of Civil Procedure 1.206 limit parents’ ability to recover medical expenses for a child’s injuries. Iowa Code section 613.15A provides,
A parent or the parents of a child may recover for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child and may recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.
Iowa Rule of Civil Procedure 1.206 states, “A parent or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.”
Both Iowa Code section 613.15A and rule 1.206 by their plain language apply to parents seeking to recover expenses resulting from the “injury ... of a minor child.” (Emphasis added.) To pursue
Here, as the defendants note, “there is no allegation that Defendants negligently caused [Z.P.’s] injuries.” There is no injury to the child; rather, the injury is to the parents—specifically their right to make an informed choice whether to continue or end a pregnancy. Rule 1.206 and section 613.15A do not govern a wrongful-birth claim. We conclude the Iowa legislature has not statutorily barred wrongful-birth claims.
The Iowa legislature, however, has by statute expressed its policy preference for medical informed-consent procedures and accurately informing a woman regarding her options for continuing or terminating a pregnancy. See Iowa Code § 146A.1; id. § 147.137. Allowing a cause of action here furthers this legislative purpose without contravening section 613.15A or rule 1.206. Thus, we conclude that an action for wrongful-birth is cognizable under Iowa law.
The parents must prove the defendant’s negligence deprived them of the opportunity to lawfully terminate the pregnancy in Iowa. See id. § 707.7 (generally prohibiting abortions after the second trimester of the pregnancy with exceptions to preserve life or health of the mother);
The right to sue for wrongful birth belongs to parents who were denied the opportunity to make an informed choice whether to lawfully terminate a pregnancy in Iowa. It is not this court’s role to second-guess that intensely personal and difficult decision. Parents of children with disabilities may find their lives enriched by the challenges and joys they confront daily. But under our tort law, financial compensation should be paid by the negligent physician if liability is proven.
C. The Father’s Wrongful-Birth Claim. Jeremy, as the father of a profoundly disabled child, may be obligated to pay for his share of the child’s care for the rest of his life. See Iowa Code § 252A.3(3) (outlining dependent support obligations). Defendants nevertheless contend that Jeremy cannot bring a claim for wrongful birth because he had no physician-patient relationship with them. Pamela testified Jeremy may have attended “some” prenatal appointments with her, but the record does not disclose whether Jeremy attended her obstetrical ultrasound or to what extent Jeremy relied on what Pamela was told by the defendants. Jeremy does not claim that he personally had a physician-patient relationship with any defendant.
Courts are divided as to whether physicians providing prenatal care owe a duty that extends to the father. Most courts specifically addressing the question have allowed the father’s wrongful-birth claim to proceed. See Khadim v. Lab. Corp. of Am.,
Although we have never addressed whether a physician providing prenatal care to the expectant mother owes a duty to the child’s father, we have addressed the duty of physicians to third parties in other contexts. “It is hornbook law that in any tort case the threshold question is whether the defendant owed a legal duty to the plaintiff.” J.A.H.,
In Leonard, a state mental hospital discharged a patient, Henry Parrish, to outpatient care after treating him for bipolar disorder.
Similarly, in Schmidt v. Mahoney, we held a physician owed no duty to a motorist injured by his patient.
Leonard and Schmidt are distinguishable. Jeremy is not suing as a member of the general public, but rather, as the patient’s husband at the time of the prenatal care and birth and as the father of their child. This ameliorates the concern for open-ended liability. See Hood,
In J.A.H., we addressed a physician’s duty to a son for negligent treatment of his mother by her therapist.
Those public policy concerns are not present in a wrongful-birth action. We do not see that the mother’s prenatal care would be compromised, or patient confidentiality threatened, if physicians could
We find particularly compelling the father’s joint legal obligation to support a disabled child. The physician-patient relationship is with the mother, not the father, but doctors providing prenatal care can easily foresee harm to both parents who must raise a profoundly disabled child. Indeed, physicians who negligently injure a baby during delivery are already liable in tort to both parents. See Asher,
Fathers also have a voice in reproductive decisions, although the ultimate decision to terminate a pregnancy belongs to the mother. Planned Parenthood of Se. Pa. v. Casey,
For these reasons, we hold that a father-husband such as Jeremy may bring a wrongful-birth claim under Iowa law, notwithstanding his lack of a physician-patient relationship with the defendants.
D. Recoverable Damages in This Wrongful-Birth Action to Be Determined on Remand. The Plowmans seek damages for (1) their cost of ordinary care raising the child; (2) their cost of extraordinary care required for Z.P.’s life as a result of his disabilities; (3) their own pain, suffering, and mental anguish; and (4) their loss of income. They are not claiming any damages for loss of their child’s consortium or services or for Pamela’s labor and delivery of Z.P.
Because the district court granted defendants’ motion for summary judgment on liability, it did not decide which damage claims can be submitted to the jury. A supreme court is “a court of review, not of first view.” Cutter v. Wilkinson,
IV. Disposition.
We reverse the district court’s summary judgment and remand the case for further proceedings consistent with this opinion.
DISTRICT COURT SUMMARY JUDGMENT REVERSED AND CASE REMANDED.
Notes
. Dr. Steffensmeier worked at Fort Madison Physicians and Surgeons and The Women's Center-, located within FMCH,
. See, e.g., Keel,
. Me. Rev. Stat. Ann. tit. 24, § 2931 (West, Westlaw current through ch. 1 of the 2017 Reg. Sess.),
. See, e.g., Atlanta Obstetrics & Gynecology Grp. v. Abelson,
. See Ariz, Rev. Stat. Ann. § 12-719 (Westlaw current through 2016 legislation); Idaho Code Ann. § 5-334 (West, Westlaw current through ch. 37 of 2017 1st Reg. Sess.); Kan. Stat. Ann. § 60-1906 (West, Westlaw current through laws enacted as of Jan. 18, 2017); Mich. Comp. Laws Ann. § 600.2971 (West, Westlaw current through No. 563 of 2016 Reg. Sess.); Minn, Stat. Ann. § 145.424 (West, Westlaw current through ch. 5 2017 Reg. Sess.); Mo. Ann. Stat. § 188.130 (West, Westlaw current through 2016 Reg. Sess.); Mont. Code Ann. § 27-1-747 (West, Westlaw current through Feb. 20, 2017); Ohio Rev. Code Ann. § 2305.116 (West, Westlaw through 2016 Reg. Sess.); Okla. Stat. Ann. tit. 63, § 1-741.12 (West, Westlaw current through 2016 2d Sess.); 42 Pa. Stat. & Cons. Stat. Ann. § 8305 (West, Westlaw current through 2016 Reg. Sess.); S.D. Codified Laws § 21-55-2 (Westlaw current through Feb. 23, 2017); Utah Code Ann. § 78B-3-109 (West, Westlaw current through 2016 4th Special Sess.).
.See Blake v. Cruz,
. Section 146A.1(1) also states that a woman must be given the opportunity to view an ultrasound of the fetus “as part of the standard of care." The Iowa legislature recently revised Iowa Code section 146A.1 to provide that "[a] physician performing an abortion shall obtain written certification from the pregnant woman of all of the following at least seventy-two hours prior to performing an abortion:” an ultrasound viewing, description of the unborn child, hearing the heartbeat of the unborn child, and relevant information regarding pregnancy, adoption, and termination. S.F. 471, 87th G.A., 1st Sess. § 1 (Iowa 2017).
. We find no such provision in the Restatement (Third) of Torts: Liability for Physical & Emotional Harm (Am. Law Inst. 2010 & 2012).
. Other courts have reached the same conclusion that the concerns raised in Nanke do not preclude recovery for extraordinary costs of raising a disabled child. See Strasser, 4 Geo. J. Gender & L. at 832 (collecting cases declining to award damages for raising a healthy child, but allowing wrongful-birth claims for extraordinary costs). For example, the Haymon court disallowed an action for wrongful pregnancy but allowed an action for wrongful birth.
. The legislature has enacted certain statutory immunities for physicians that further other public policy goals, such as encouraging the reporting and investigation of child abuse complaints. See, e.g., Nelson,
. Section 707.7 provides in relevant part,
1. Any person who intentionally terminates a human pregnancy, with the knowledge and voluntary consent of the pregnant person, after the end of the second trimester of the pregnancy where death of the fetus results commits feticide. Feticide is a class "C” felony.
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4. This section shall not apply to the termination of a human pregnancy performed by a physician licensed in this state to practice medicine or surgery or osteopathic medicine or surgery when in the best clinical judgment of the physician the termination is performed to preserve the life or health of the pregnant person or of the fetus and every reasonable medical effort not inconsistent with preserving the life of the pregnant person is made to preserve the life of a viable fetus.
Iowa Code § 707.7(1), (4).
. The Iowa legislature recently enacted chapter 146B, which prohibits abortions after twenty weeks of fetal gestation other than cases of medical emergency. S.F. 471, 87th G.A., 1st Sess. § 3 (Iowa 2017) (to be codified at Iowa Code § 146B.2(2)(a)). Nevertheless, the legislature clarified that the Act "shall not be interpreted to ... prohibit abortion prior to an unborn child reaching a postfertilization age of twenty weeks.” Id. § 5. The legislation also allows a woman to maintain an action for actual damages against a physician who performs an abortion in violation of this chapter. Id. § 4 (to be codified at Iowa Code § 146B.3). The legislation was not made ret
. See, e.g., Lininger,
. The Iowa legislature has also allowed a father of a fetus upon whom a partial-birth abortion is performed to sue the physician. See Iowa Code § 707.8A(4)(a),
Concurrence Opinion
(concurring specially).
I concur in the opinion of the court. The claim described in the case fits within the existing framework of a medical malpractice tort, and the alleged wrongful conduct gives rise to damages. However, the damages recoverable under the tort must not hinge on the distinction between a child perceived as “normal” and a child perceived as “disabled.” Such a distinction can be illusory and only risks unwarranted stereotypes and undeserved assumptions based on bias. See Anne Bloom, The Radiating Effects of Torts, 62 DePaul L. Rev. 229, 242 (2013); Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 144 (2005). Such a distinction must be discontinued.
In Nanke v. Napier, we held a parent could not recover damages for a negligently performed abortion that resulted in the birth of a “normal, healthy child” because the benefits of parenthood exceeded the financial burdens associated with parenthood.
Society would be better served if we proceed forward with this tort by abandoning the inclination to distinguish people as either normal or disabled. See Richard K. Scotch, Models of Disability and the Americans with Disabilities Act, 21 Berkeley J. Emp. & Lab. L. 213, 214-15 (2000). Instead, damages under the tort should be recoverable when the extra financial burden of raising the child would be substantial enough to support a decision to terminate a pregnancy under prevailing community and medical standards. This standard does not impinge on the individual constitutional right to an abortion; it only permits damages associated with the decision when the extra expenses of parenthood would reasonably support the termination of a pregnancy. In this way, the reasonableness of the decision to terminate pregnancy will not hinge on identifying the child as disabled, but on the extra expenses associated with parenting the child. Those expenses describe the essence of the damages. Our law should in every instance
Dissenting Opinion
(dissenting).
I respectfully dissent because I cannot agree that we should create a cause of action for “wrongful birth.”
Nothing compels us to establish a wrongful-birth cause of action. As plaintiffs’ very able counsel conceded at oral argument, Roe v. Wade,
In my view, the court’s decision is incorrect for three reasons. First, this cause of action did not exist at common law and is contrary to traditional common law concepts. Second, Iowa statutes, specifically Iowa Rule of Civil Procedure 1.206, foreclose this cause of action. Third, there are good public policy reasons not to recognize the claim. See Dier v. Peters,
I. Common Law Precedents Do Not Support This Claim.
The common law does not support this cause of action. At common law, parents could not recover for the wrongful birth of a child. See Etkind v. Suarez,
Furthermore, even if we were not constrained by Iowa statutes and could tinker with the common law in this area, there are good reasons not to do so. This is not a straight-and-simple case of medical malpractice, as the majority suggests. In general, a medical malpractice claim cannot be pursued in the absence of physical harm. See Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 6, at 67 (Am. Law Inst. 2010) (“An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability....”).
Plaintiffs do not contend that the defendants’ actions caused physical harm to Z— but rather that Z’s birth as a severely disabled child has caused them economic and emotional harm. In the plaintiffs’ words,
A baby such as Z.P. is not the injury. The injury is that the parents were denied the right to make a deeply personal but informed decision whether to give birth to a potentially severely brain damaged child and willingly incur the foreseeable economic and emotional costs associated with caring for such a child.
I do not minimize the financial and personal burdens on the Plowmans of raising a severely disabled child. But this is not a typical medical malpractice claim.
It is true we have allowed medical malpractice claims to be pursued in the absence of physical injury when a breach of duty will “inevitably” result in mental anguish, pain and suffering. See Oswald v. LeGrand,
My colleagues analogize the wrongful-birth claim to a failure-to-diagnose or a failure-to-provide-informed-consent cause of action. These off-base comparisons do not advance the majority’s analysis. Under a failure-to-diagnose claim, the physician can be sued because his or her negligence has resulted in physical harm, or at least greater physical harm than would otherwise have occurred. See, e.g,, Murtha v. Cahalan,
II. This Claim Is Contrary to an Iowa Statute.
Furthermore, existing, longstanding Iowa legislation weighs against the creation of the wrongful-birth cause of action
and, in my view, forecloses it. In 1860, our legislature enacted what is now Iowa Rule of Civil Procedure 1.206. See Iowa Code § 2792 (1860); see also id. § 4187 (repealing in whole the 1851 Code of Civil Practice). The 1860 law provided,
A father, or in case of his death or imprisonment or desertion of his family, the mother, may prosecute as plaintiff an action for the expenses and actual loss of service resulting from injury or death of a minor child.
Iowa Code § 2792.
Other than amendments eliminating the preference for the father, this statute has remained basically unchanged for over 150 years.
In Dunn v. Rose Way, Inc., we held that a father could recover under this statute for the death of a viable unborn child.
Thus, to date, we have respected the boundaries of rule 1.206. Under this statute, parents cannot sue for emotional distress because the statute is limited to recovery of expenses and loss of services. Likewise, until the law was changed, parents could not sue for the injury or death of an adult child under rule 1.206 because it only referehced minor children.
Rule 1.206 thus controls a parent’s right to recover for tortious conduct affecting a minor child. See Wardlow,
The court says that rule 1.206 does not “speak to” the wrongful-birth cause of action because such a claim does not involve injury to the minor child. However, by the same logic, we could just as well have said that rule 1.206 does not “speak to” claims relating to adult children or claims for emotional distress damages. We didn’t. Under the interpretive canon expressio unius est exelusio alterius, the legislature’s decision to include recovery for “injury to” or “death of’ a minor child also means-it did not intend to include recovery for the birth of a child. See Homan v. Branstad, 887 N.W.2d 153, 166 (Iowa 2016) (“It is an established rule of statutory construction that ‘legislative intent is expressed by omission as well as by inclusion, and the express mention of one thing implies the exclusion of others not so mentioned.’” (quoting Marcus v. Young,
III. Public Policy Considerations Should Also Defeat This Claim.
Finally, there are valid public policy reasons not to recognize this claim. It goes without saying that a main source of public
Bowing to this approach in part, the court cites recent informed-consent laws relating to abortion as reflective of legislative policy. However, the last time the Iowa legislature was actually free to set policy in this area predated Roe v. Wade. At that time the legislature made performing an abortion illegal, except to save the life of the mother. See Iowa Code § 701.1 (1973).
Also relevant from a public policy perspective are the consequences of a particular ruling. See, e.g., Mulhern v. Catholic Health Initiatives,
The court’s decision also opens up the possibility for other claims. Can a mother sue a father for not telling her that he carried a genetic disorder, on the theory that she would otherwise have had an abortion? Can a father sue a mother for not telling him she carried a genetic disorder, on the theory that he would not have had unprotected sex? Can a couple that relies on an outside sperm donor sue the source of that donation in tort?
Or suppose a physician recommends a potentially life-saving course of treatment for a seriously ill octogenarian whose adult children hold medical power of attorney. The children agree to the course of treatment, which prolongs the octogenarian’s life but doesn’t alleviate his misery. Instead, it drains the remaining assets of his
Another unanswered question is how one will select a jury in a wrongful-birth case. Many Iowans have deep-seated moral and religious objections to abortion, even if the unborn child has a severe disability. This raises the specter of a highly intrusive and uncomfortable voir dire, leading to the exclusion of a large swath of our population from the jury panel. See Thornhill v. Midwest Physician Ctr. of Orland Park,
The best argument the court has for its ruling is that it provides greater motivation for physicians to provide more accurate diagnoses of conditions in unborn children. I agree that courts should take incentives into account in deciding cases, particularly under the common law. I also agree that traditional tort law works well and does a good job of internalizing the costs of negligent conduct. Yet I question whether the majority’s incentive is needed or beneficial here. In a typical medical malpractice case, the causation inquiry is a scientific one: Did the physician’s negligence cause the injury? Here, though, the causation inquiry is a human one: If the risks of a disability had been accurately disclosed, would the woman have terminated her pregnancy? Given the type of causation inquiry the factfinder must resolve, there is a possibility of overdeter-renee. Although this matter is not part of the present appeal, it is a subject of disagreement among the parties, with the defendants pointing out that the plaintiff declined her physician’s offer of amniocentesis during a subsequent pregnancy.
I would have no problem with a potential breach of contract claim against a physician who contractually assumes a duty to provide a competent diagnosis of an unborn child’s condition. Parties are today free by private arrangement to allocate this responsibility. This could also avoid any question as to what course of action would have been taken and eliminate the possible overdeterrence problem I have mentioned in the preceding paragraph.
As the Kentucky Supreme Court noted when it rejected the wrongful-birth cause of action,
The Bogans believe that patients should have a breach of contract action against the physicians who offered and charged for diagnostic prenatal testing, yet who allegedly did not perform those services correctly. Despite our holding denying the tort claim as a matter of law, a physician who contracts and charges for a service, such as a prenatal ultrasound and consequent opinion as to the results of the ultrasound, is liable for any breach of contract in this regard.
Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C.,
For all these reasons, I would affirm the grant of summary judgment and let the general assembly decide whether to authorize this cause of action.
. In 1973, the legislature eliminated the paternal preference. See 1973 Iowa Acts ch. 316, at 660. Current Iowa Rule of Civil Procedure 1.206 provides, "A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.”
. In 2007, the legislature enacted a new statute, which provided,
A parent or the parents of a child may recover for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child and may recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.
2007 Iowa, Acts ch. 132, §: 1 (codified at Iowa Code § 613.' 15A (2011)).
. The legislature first criminalized the performance of any abortion in 1859. See 1859 Iowa Acts ch. 58, § 1 (codified at Iowa Code § 4221 (1860)). Aside from renumbering and minor changes, the statute remained unchanged until it was substantially amended in 1977 following Roe v. Wade. See 1976 Iowa Acts ch. 1245, ch. 4, § 526 (repealing Iowa Code § 701.1 (1977)); id. ch. 1245, ch. 1, § 707 (enacting Iowa Code § 707.7 (1979)).
. Section 146A.1 is entitled "Prerequisites for an abortion,” and at the time of the alleged malpractice read as follows;
Except in the case of a medical emergency, as defined in section 135L.1, for any woman, the physician shall certify both of the following before performing an abortion:
1. That the woman has been given the opportunity to view an ultrasound image of the fetus as part of the standard of care.
2. That the woman has been provided information regarding the options relative to a pregnancy, including continuing the pregnancy to term and retaining parental rights following the child's birth, continuing the pregnancy to term and placing the child for adoption, and terminating the pregnancy.
Iowa Code § 146A.1. In the 2017 session, the legislature added more prerequisites for an abortion, including a seventy-two hour waiting period. See S.F. 471, 87th G.A., 1st Sess. § 1 (Iowa 2017) (to be codified at Iowa Code § 146 A. 1(1)).
, The majority puts the shoe on the other foot, stating, "If the legislature disagrees with our decision, it is free to enact a statute precluding wrongful-birth claims.” This observation is undoubtedly true. In several states, legislatures have enacted statutes to overturn court decisions permitting wrongful-birth claims. See, e.g., Blake v. Cruz,