Schirmer v. Mt. Auburn Obstetrics

• Decision Date: 03 March 2006
• Docket Number: No. 2004-0296.,2004-0296.
• Citation: 2006 Ohio 942,844 N.E.2d 1160,108 Ohio St.3d 494
• Parties: SCHIRMER et al., Appellants and Cross-Appellees, v. MT. AUBURN OBSTETRICS & GYNECOLOGIC ASSOCIATES, INC. et al., Appellees and Cross-Appellants.
• Court: Ohio Supreme Court

Page 1160

844 N.E.2d 1160

108 Ohio St.3d 494

2006-Ohio-942

SCHIRMER et al., Appellants and Cross-Appellees, v. MT. AUBURN OBSTETRICS & GYNECOLOGIC ASSOCIATES, INC. et al., Appellees and Cross-Appellants.

No. 2004-0296.

Supreme Court of Ohio.

Submitted April 13, 2005.

Decided March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Mark B. Smith Co., L.P.A., and Mark B. Smith, Cincinnati; and Sandra L. Steele, for appellants and cross-appellees.

Adkinson & Assoc., L.L.C., and Patrick K. Adkinson; Arnold, Todaro & Welch and Karen L. Clouse, for appellees and cross-appellants Kevin Fitzgerald, M.D. and Mt. Auburn Obstetrics & Gynecologic Associates, Inc.

Dinsmore & Shohl, L.L.P., Frank C. Woodside III, Jeffrey R. Schaefer, and Robert A. Carpenter, Cincinnati, for appellees and cross-appellants Children's Hospital Medical Center and Martha Walker, M.S.

Rendigs, Fry, Keily & Dennis, Paul W. McCartney, Cincinnati, and Megan K. Roach, for appellee and cross-appellant Howard Saal, M.D.

Davis & Young, Jan L. Roller, and Richard M. Garner, West Cleveland, urging reversal for amicus curiae, University Hospitals of Cleveland.

O'CONNOR, J.

{¶ 1} We are asked to consider whether the parents of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease may bring suit for the costs of having to raise and care for an impaired child. We hold that such a suit may be brought under traditional medical-malpractice principles and that the costs recoverable are those arising from the pregnancy and birth of the child. No consequential economic or consequential noneconomic damages may be recovered for the care and rearing of the child.

I. Facts and Procedural History

{¶ 2} Plaintiffs-appellants and cross-appellees, Helen and Richard Schirmer, initiated this action by filing a complaint asserting medical negligence and lack of informed consent against various defendants, including appellees and cross-appellants, Mt. Auburn Obstetrics & Gynecologic Associates, Inc., Kevin R. Fitzgerald, M.D., Children's Hospital Medical Center, Martha Walker, M.S., and Howard M. Saal, M.D. The Schirmers alleged that defendants did not adhere to the required standards of care in monitoring Mrs. Schirmer's pregnancy prior to the 1997 birth of their son, Matthew. The Schirmers also claimed failure to warn and failure to obtain the Schirmers' informed consent for treatment methods and modalities.

{¶ 3} The pertinent facts are as follows.¹ Before conceiving Matthew, Mrs Schirmer had several obstetrical problems that caused the Schirmers to seek genetic testing and counseling. The testing revealed that Mrs. Schirmer has a chromosomal condition, referred to as a balanced translocation of chromosomes 11 and 22, which puts her at risk for bearing children with serious birth defects.

{¶ 4} After conceiving Matthew, Mrs. Schirmer underwent a chorionic villus sampling ("CVS") test. The testing indicated that the fetus was probably a female with the same chromosomal condition as Mrs. Schirmer and would therefore develop normally. Mrs. Schirmer also underwent several ultrasound tests to rule out abnormalities of the fetus. It was reported to the Schirmers that the studies showed that the fetus was developing normally.

{¶ 5} On September 9, 1997, Mrs. Schirmer gave birth to Matthew. Subsequent genetic testing of Matthew revealed that he had inherited a structurally abnormal extra chromosome known as Trisomy 22. The condition caused Matthew to have severe and permanent disabilities.

{¶ 6} The Schirmers alleged that because the genetic makeup of the fetus appeared to match that of Mrs. Schirmer, a possibility existed that the CVS had erroneously sampled maternal rather than fetal tissue. They argue that the defendants negligently performed and interpreted the diagnostic tests and that they were negligent in their failure to recommend further tests that would have revealed Matthew's genetic abnormality. They claim that had they received such information, they would have opted to terminate the pregnancy.

{¶ 7} In their complaint, the Schirmers asserted three claims for damages: (1) damages relating to Mrs. Schirmer's pregnancy and delivery of Matthew (i.e., obstetric costs and pain and suffering of pregnancy and delivery), (2) costs associated with raising and supporting a disabled child (i.e., consequential economic damages), and (3) emotional and physical injuries to the Schirmers resulting from the added burdens of raising and supporting a disabled child (i.e., consequential noneconomic damages).

{¶ 8} After months of proceedings before the trial court, the court journalized an agreed entry in which it recorded various stipulations by the parties and entered judgment. The Schirmers dismissed their claim for damages relating to the pregnancy and pain and suffering of delivery of Matthew. The court then granted defendants' motions to dismiss the remaining counts of the Schirmers' complaint for failure to state a cognizable claim. Defendants argued that Ohio does not allow recovery for consequential economic and consequential noneconomic damages in a wrongful-birth action. The trial court agreed, finding, "Ohio law allows only the recovery of damages relating to the pregnancy and pain and suffering of delivery in wrongful birth actions," thereby adopting the "limited damages" rule, explained below. Because the Schirmers had dismissed their claim for such damages, the remainder of their complaint was dismissed for lack of legally recoverable damages.

{¶ 9} The Schirmers appealed. The appellate court affirmed in part and reversed in part, holding that "because of the close causal nexus alleged between the medical negligence and the genetic harm to the Schirmers' child, and because of the absence of the need to calculate the value of nonbeing in determining the amount of damages, the allegations in the Schirmers' complaint state a valid medical claim. The measure of their damages is limited to those consequential, economic damages of raising their disabled child over and above the ordinary child-rearing expenses." 155 Ohio App.3d 640, 2003-Ohio-7150, 802 N.E.2d 723, ¶ 1. But the court held that the Schirmers could not recover noneconomic damages, finding that such damages require a court to weigh the value of being and nonbeing, which is impermissible. Id. at ¶ 36.

{¶ 10} This cause is now before this court upon the acceptance of the Schirmers' discretionary appeal and the defendants' cross-appeal. Combined, the direct appeal and cross-appeal contest the existence of a "wrongful birth" tort in Ohio and the damages available under such a tort.

II. The Prenatal Torts

{¶ 11} We have examined the so-called prenatal torts, or birth-based medical-malpractice actions, on several occasions. There are three typical categories of these actions: wrongful pregnancy, wrongful birth, and wrongful life. "In a wrongful pregnancy action, one or both parents of a child born following a negligently performed sterilization procedure bring suit for the costs of having an unplanned child. * * * Most United States jurisdictions recognize this cause of action. * * * In a wrongful birth action, the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease." (Emphasis sic.) Simmerer v. Dabbas (2000), 89 Ohio St.3d 586, 587, 733 N.E.2d 1169. Until today, the legitimacy of this second cause of action had not been addressed by this court. "Finally, in a wrongful life action, an unhealthy child born following either a negligently performed sterilization of one of his or her parents or negligent genetic counseling or testing argues that he or she has been damaged by being born at all. This court has rejected this cause of action, as have most other jurisdictions." (Footnotes omitted and emphasis sic.) Id.

{¶ 12} The Schirmers assert that their claim is one for wrongful birth, but the defendants argue that the claim is actually nothing more than a derivative of a claim for wrongful life. Defendants quote a Missouri case in which the court held that no cause of action for either wrongful life or wrongful birth could be maintained. Wilson v. Kuenzi (Mo.1988), 751 S.W.2d 741. The case involved both a wrongful-life suit brought by a child afflicted with Down syndrome and a wrongful-birth suit brought by the child's parents. The court, quoting a separate opinion in a case from the Court of Appeals of New York, held that a wrongful birth claim could not be maintained in Missouri because (1) causation for wrongful birth is even more remote than for wrongful life because the parents are seeking to recover for an injury they have suffered as a result of the alleged injury to the child and (2) "[a] parent's right to recover expenses occasioned by an injury to the child `"is based upon and arises out of the negligence which causes the injury to the child." The injury to the child results in a twofold action, one for the father and one for the child.' [Becker v. Schwartz (1978), 46 N.Y.2d 401, 420, 413 N.Y.S.2d 895, 386 N.E.2d 807 (Wachtler, J., dissenting in part), quoting Psota v. Long Island RR. Co. (1927), 246 N.Y. 388, 396, 159 N.E. 180.] Thus the parents' suit for the pecuniary losses is derivative; it cannot stand alone." Wilson, 751 S.W.2d at 745. Therefore, "[i]f the child cannot establish a good cause of action to recovery [sic] for its injury, the parents' suit for collateral losses, flowing from the injury to the child, must also fail." Id. We are not persuaded by this reasoning.

{¶ 13} The causation issue in this case can be examined in terms of the pregnancy rather than the life of the child, as will be discussed in greater detail...