By Michael A. Thompson, J.D., LL.M. candidate
On August 21, 2003 the Supreme Court of Kentucky rejected an attempt by the parents of two physically impaired children to assert medical malpractice claims against the physician providers whose misdiagnosis of incurable birth defects negligently deprived them of the medical information necessary to make an informed decision regarding continuation of their respective pregnancies. In arriving at this conclusion, the Kentucky high court made clear its refusal “to equate the loss of an abortion opportunity resulting in a genetically or congenitally impaired human life, even severely impaired, with a cognizable legal injury.” See Grubbs v. Barbourville Health Center, P.S.C., 2003 Ky. LEXIS 178 (Ky. August 21, 2003).
CARLEI NACOLE GRUBBS
On April 19, 1996, Kimberly Grubbs presented to the Barbourville Family Health Center for a routine prenatal ultrasound to be performed by her physician Dr. B. R. Jung. Dr. Jung reviewed the test results and informed Mrs. Grubbs and her husband that the pregnancy was progressing normally. See id. at 4. Two months later, a second ultrasound was performed by Dr. Jung and signs first indicated the fetus might have birth defects. See id. On June 2, 1996, Mrs. Grubbs was referred to the University of Kentucky Medical Center to undergo more extensive testing the results of which confirmed that her fetus had spina bifida and hydrocephalus. See id. A month later, Carlei Nacole Grubbs was born with the diagnosed birth defects and today suffers paralysis from the waist down, has poor vision and misshapen kidneys. See id. at 4-5.
NATHAN ROBERT BOGAN
In December of 1992, Gretchen Bogan underwent a pre-natal screening ultrasound that according to Dr. Harry E. Altman was administered in order “to confirm dates and rule out obvious anomalies.” See id. at 7. Dr. Altman’s interpretation of the ultrasound revealed no present abnormalities and Ms. Bogan was assured her pregnancy was advancing naturally. See id. On March 31, 1993, Nathan Robert Bogan was delivered several weeks prematurely by caesarean section, a procedure that was necessary because a cyst had enlarged the child’s head to a point that normal delivery was not possible. See id. Shortly after his birth it was discovered that the cyst occupied most of the child’s cranium, that he had no eyes or brain and that he was able to survive only because he had an underdeveloped brain stem which supported minimal autonomic functioning. See id. Today Nathan Bogan is ten years old yet he cannot speak or control his bodily functions and his condition requires that he be strapped into a wheel chair to sit upright. See id.
Both the Grubbs and Bogan families maintain the defects afflicting their children were visible on the early ultrasound films and complain that the providers’ failures to correctly interpret these prenatal tests precluded their ability to make an informed decision concerning whether to carry their children to term. See id. at 6-7. Both families contend that had they been informed of the birth defects at the time the initial ultrasounds were performed each would have sought to terminate their pregnancy by abortion while doing so was still a legally and medically available option. See id. at 15.
The families sued their respective physicians on behalf of themselves, and their children, for malpractice, wrongful birth and wrongful life. See id. at 6-7. The trial courts dismissed both child’s wrongful life claims and the Bogans’ claim for wrongful birth on summary judgment, but the Grubbs’ trial court, following what it perceived to be the majority rule, allowed the family to proceed with their wrongful birth cause of action pending proof of the usual elements of medical negligence. See id. The Kentucky Court of Appeals consolidated these cases for review and after examining the families’ allegations under traditional tort principles held that parents who allege a physician is negligent by depriving them of information necessary to make informed decisions about whether to continue a pregnancy have a viable cause of action for medical negligence. See id. at 8-10.
SUPREME COURT MAJORITY OPINION
Kentucky Supreme Court Chief Justice Joseph E. Lambert, writing for a five justice majority, agreed with the appellate court that conventional principles of medical negligence (duty, breach and consequent injury) would ultimately determine whether Plaintiffs could sustain a cause of action for wrongful birth, but differed in opinion as to whether the parents of Carlei Grubbs and Nathan Bogan could ultimately prove each of the required elements under Kentucky law. See id. at 11-13.
In examining the instant cases, the majority had little problem concluding
that Dr. Jung and Dr. Altman: (1) had a duty to fully disclose to Plaintiffs
all pertinent medical findings upon examination; and (2) that negligent
misdiagnosis or withholding of medical information affecting the decision
to continue the pregnancy would represent a breach of this duty.
See id. at 14-15. However, the majority stated that even assuming
arguendo that Plaintiffs could supply the proof satisfying these elements,
their claims for wrongful birth would nonetheless fail due to the Court’s
unwillingness “to equate the loss of an abortion opportunity resulting
in a genetically or congenitally impaired human life, even severely impaired,
with a cognizable legal injury.” See id. at 11-25.
Aware of the existing uncertainty and lack of uniformity among jurisdictions that have previously considered whether to acknowledge wrongful birth claims, the majority accepted the rationale proffered by the Supreme Courts of North Carolina in Azzolino v. Dingfelder, 337 S.E.2d 528 (N.C. 1985) and Georgia in Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d 557 (Ga. 1990). Both of these courts maintain that any “traditional” negligence analysis of wrongful birth claims cannot proceed beyond the examination of duty and breach because doing so would eventually lead to the “untraditional” conclusion “that the existence of a human life can constitute an injury cognizable at law.” See id. at 16-23.
Moreover, the majority decision accepted fully the logic underlying the dissent in Becker v. Schwartz, 38 N.E.2d 807 (N.Y. 1978) wherein Judge Wachtler of the Court of Appeals of New York argued that holding physicians liable for damages associated with incurable genetic disorders the physician did not cause would require courts to draw arbitrary and artificial boundaries the existence of which would distort fundamental legal principles. See id. at 20.
In a distinctly more policy based concurrence, Justice Donald C. Wintersheimer refused to rely solely on the majority’s legalistic injury analysis and stated bluntly that “a claim for wrongful life is contrary to the intrinsic value and sanctity of human life” and maintained that recognition of this cause of action would “place the courts in the position of affirming that death, or nonexistence, is preferable to life.” See id. at 26 (concurring opinion). Arguing the mere discussion of claims for wrongful birth engender thoughts of the eugenics movement of the early 1900’s and even the horrors of Adolph Hitler’s Nazi Regime, Justice Wintersheimer offered as support for his stance the view expressed in Taylor v. Kurapati, 600 N.W.2d 670 (Mich. Ct. App. 1999) which suggests that “if one accepts the premise that the birth of one ‘defective’ child should have been prevented, then it is a short step to accepting the premise that the births of classes of ‘defective’ children should similarly have been prevented, not just for the benefit of the parents but also for the benefit of society as a whole through the protection of the public welfare.” See id. at 30-31.
Justice James Keller’s dissent takes umbrage with the majority and concurring opinion’s legal injury analysis arguing each step outside the proper province of the judiciary and are merely pretext for the justices inappropriate volunteering of their personal opinions regarding the morality of the choices the Grubbs and Bogan families would have made had they been fully informed of their children’s defects. See id. at 48 (dissenting opinion). Citing language from Greco v. United States, 893 P.2d 345 (Nev. 1995), Justice Keller reminds the majority that “regardless of one’s personal beliefs concerning the propriety or morality of eugenic abortion procedures, under Roe [v. Wade, 410 U.S. 959 (1973)], prospective parents may have constitutionally cognizable reasons for avoiding the emotional and pecuniary burdens that attend the birth of a child suffering from birth defects and those who do not wish to undertake the many burdens associated with the birth and continued care of such a child have the legal right…to terminate their pregnancies.” See id. (parenthesis added).
The Supreme Court of Kentucky’s recent refusal to recognize wrongful birth and wrongful life causes of action places it in direct opposition with the Texas Supreme Court case of Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) and is sure to take its rightful place in the ever continuing debate over the rights of individuals to terminate unwanted pregnancies and the rights of the unborn. Given the current conservative makeup of both the legislature and the Texas high court, it would not come as a surprise to this author if this shift in political ideology eventually results in legislation overruling Jacobs or a change in legal precedent rendering the same conclusion.