Plowman v. Fort Madison Cmty. Hosp.

• Decision Date: 02 June 2017
• Docket Number: No. 15-0974,15-0974
• Citation: 896 N.W.2d 393
• Parties: Pamela PLOWMAN and Jeremy Plowman, Appellants, v. FORT MADISON COMMUNITY HOSPITAL, Pil Kang, John Paiva, Davis Radiology, P.C., Leah Steffensmeier, the Women's Center, and Fort Madison Physicians and Surgeons, Appellees.
• Court: Iowa Supreme Court

896 N.W.2d 393

Pamela PLOWMAN and Jeremy Plowman, Appellants,
v.
FORT MADISON COMMUNITY HOSPITAL, Pil Kang, John Paiva, Davis Radiology, P.C., Leah Steffensmeier, the Women's Center, and Fort Madison Physicians and Surgeons, Appellees.

No. 15-0974

Supreme Court of Iowa.

Filed June 2, 2017

Wayne M. Willoughby of Gershon, Willoughby, Getz & Smith, LLC, Baltimore, Maryland, Darwin Bünger of Crowley, Bünger & Prill, Burlington, for appellants.

Nancy J. Penner and Jennifer E. Rinden of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees Fort Madison Community Hospital, Leah Steffensmeier, The Women's Center, and Fort Madison Physicians and Surgeons.

Christine L. Conover and Carrie L. Thompson of Simmons, Perrine, Moyer, Bergman, PLC, Cedar Rapids, for appellees Pil Kang, John Paiva, and Davis Radiology, P.C.

WATERMAN, Justice.

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 , 346 N.W.2d 520, 523 (Iowa 1984).

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

896 N.W.2d 396

and extraordinary costs of raising the child and for their loss of income and emotional distress. The district court granted the medical defendants' motion for summary judgment on the grounds that Iowa has not recognized "wrongful birth" as a cause of action.

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).¹

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 follow-up.

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. Steffensmeier, 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

896 N.W.2d 397

City, Iowa, for Z.P.'s care. Pamela began taking Z.P. to Iowa City for testing and treatment. Z.P. was diagnosed with small corpus callosum, which plaintiffs contend relates to the head circumference as shown in the ultrasound. Z.P. suffers from cerebral palsy, microcephaly, intellectual disability, cortical visual impairment, and seizure disorder. He requires frequent visits to numerous doctors in Iowa City and Keokuk. Physical therapists come to his home one to two times weekly. He is on daily medication for seizures and reflux. Doctors have been unable to determine the exact cause of Z.P.'s disabilities. It is unlikely Z.P. will ever walk or speak.

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 Plaintiff's 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.

896 N.W.2d 398

II. Standard of Review.

"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 , 880 N.W.2d 451, 455 (Iowa 2016) (quoting Rathje v. Mercy Hosp. , 745 N.W.2d 443, 447 (Iowa 2008) ). "Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Barker v. Capotosto , 875 N.W.2d 157, 161 (Iowa 2016) (quoting Amish Connection, Inc. v. State Farm Fire & Cas. Co. , ...