Tillman v. Goodpasture

• Decision Date: 30 April 2021
• Docket Number: No. 117,439,117,439
• Citation: 485 P.3d 656
• Parties: Alysia R. TILLMAN and Storm Fleetwood, Appellants, v. Katherine A. GOODPASTURE, D.O., Appellee. Office of Attorney General Derek Schmidt, Intervenor.
• Court: Kansas Supreme Court

485 P.3d 656

Alysia R. TILLMAN and Storm Fleetwood, Appellants,

v.Katherine A. GOODPASTURE, D.O., Appellee.

Office of Attorney General Derek Schmidt, Intervenor.

No. 117,439

Supreme Court of Kansas.

Opinion filed April 30, 2021

Lynn R. Johnson, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, argued the cause, and David R. Morantz, Ashley E. Billam, and Paige L. McCreary, of the same firm, and Stanley R. Ausemus, of Stanley R. Ausemus, Chartered, of Emporia, were with him on the briefs for appellants.

Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, argued the cause, and Dustin J. Denning, of the same firm, was with him on the briefs for appellee.

Brant M. Laue, deputy solicitor general, argued the cause, and Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, Toby Crouse, solicitor general, Jeffrey A. Chanay, chief deputy attorney general, and Derek Schmidt, attorney general, were with him on the briefs for intervenor.

The opinion of the court was delivered by Biles, J.:

This case considers the constitutional validity of a statute abolishing a medical malpractice claim commonly known as a "wrongful birth" action. See K.S.A. 2020 Supp. 60-1906(a) (abolishing the claim), (d)(2) (defining the claim). The plaintiff parents allege their prenatal doctor negligently failed to inform them about serious fetal abnormalities observable from an ultrasound that would have led them to terminate the pregnancy had they known. They sued to recover the costs of care after their child was born with severe, permanent disabilities. A district court dismissed their lawsuit based on the statute, and a Court of Appeals panel affirmed. See Tillman v. Goodpasture , 56 Kan. App. 2d 65, 424 P.3d 540 (2018). We granted review at the parents' request. They argue K.S.A. 2020 Supp. 60-1906(a) violates two constitutional protections—the right to trial by jury guaranteed by section 5 of the Kansas Constitution Bill of Rights, and the right to a remedy guaranteed by section 18 of the Kansas Constitution Bill of Rights. We affirm.

Thirty years ago, this court joined most of the other state courts that had considered the issue by confirming this cause of action was viable in Kansas. See Arche v. United States , 247 Kan. 276, 798 P.2d 477 (1990). Twenty-three years later, the Legislature enacted K.S.A. 2013 Supp. 60-1906, so the question now is whether a state law can abolish wrongful birth causes of action after our court acknowledged them. See L. 2013, ch. 48, § 1. We hold the statute is constitutional. Our resolution stems from a central conclusion that the Arche court recognized the wrongful birth tort as a new cause of action. As a result, section 5's jury trial right and section 18's right to a remedy—both of which extend under our caselaw only to common-law causes existing at the time these constitutional protections were adopted—do not shield the parents' claim from this legislative action.

FACTUAL AND PROCEDURAL BACKGROUND

Katherine A. Goodpasture, D.O., provided obstetrical prenatal medical care to Alysia R. Tillman beginning in November 2013. After an ultrasound in January 2014, Goodpasture reported a female fetus with normal anatomy. The petition alleges the ultrasound actually reflected severe structural deformities and brain defects. Goodpasture denies this.

About 16 weeks later, Tillman had another ultrasound. This time, Goodpasture reported an "irregularly shaped fluid-filled space in the brain" and noted "[u]ncertain diagnosis."

An MRI the next day revealed schizencephaly

, a developmental birth defect affecting the brain's cerebral hemisphere. A baby girl was born a few days later with severe and permanent neurological, cognitive, and physical impairments. Her condition is not medically correctable and will require a lifetime of medical treatment, attendant care, therapy, and other special needs.

The baby's parents, Tillman and Storm Fleetwood, sued Goodpasture, alleging the doctor breached the applicable duty of care by failing to detect the fetal abnormalities from the January 2014 ultrasound. They claim Tillman would have terminated her pregnancy had Goodpasture accurately reported the ultrasound results, and that the doctor's negligence deprived Tillman of her right to make an informed decision about her options.

Goodpasture moved for judgment on the pleadings, arguing the damages claim for future care made this a "wrongful birth" lawsuit barred by K.S.A. 2020 Supp. 60-1906(a), which declares,

"No civil action may be commenced in any court for a claim of ... wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion."

The parents countered by attacking the statute's validity, arguing it violated their rights to a jury trial and to a legal remedy under sections 5 and 18 of the Kansas Constitution Bill of Rights.

The attorney general intervened after receiving notice of the constitutional attack against the statute. See K.S.A. 75-764(a), (e) (allowing attorney general to intervene when statute's constitutionality is challenged), K.S.A. 2020 Supp. 60-224(b)(2)(C) (court must permit attorney general's intervention under K.S.A. 75-764 ). He argued the statute did not violate sections 5 or 18.

The district court granted judgment to Goodpasture based on the statute, which it determined was constitutional. The court held sections 5 and 18 protect only those civil actions existing at common law before the Kansas Constitution's adoption in 1859, and that wrongful birth claims were not recognized in Kansas until the Arche decision in 1990. It reasoned this cause of action was not "simply another form of negligence" because it requires proof of more elements to be actionable and limits recoverable damages from those that are typically available to successful tort plaintiffs. The court explained that "[a]lthough the tort of wrongful birth shares some characteristics with the tort of negligence, the proof required for and the policy behind wrongful birth are something wholly new and separate from simple negligence."

The parents appealed, and a Court of Appeals panel affirmed the district court. Tillman , 56 Kan. App. 2d at 66, 424 P.3d 540. The parents petitioned for review, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

STANDARD OF REVIEW

These constitutional issues arise from the district court's decision to grant Goodpasture judgment on the pleadings. Our standard of review when this happens is a familiar one.

" ‘A motion for judgment on the pleadings under 60-212(c), filed by a defendant, is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves and the basic question to be determined is whether, upon the admitted facts, the plaintiffs have stated a cause of action. The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. The motion operates as an admission by movant of all fact allegations in the opposing party's pleadings.’ "An appellate court's review of whether the district court properly granted a motion for judgment on the pleadings is unlimited. [Citations omitted.]" Mashaney v. Bd. of Indigents' Def. Servs. , 302 Kan. 625, 638-39, 355 P.3d 667 (2015).

Whether K.S.A. 2020 Supp. 60-1906(a) is invalid under either sections 5 or 18 of the Kansas Constitution Bill of Rights is an issue of law subject to unlimited appellate review. Miller v. Johnson , 295 Kan. 636, 646-47, 289 P.3d 1098 (2012), abrogated in part on other grounds by Hilburn v. Enerpipe Ltd. , 309 Kan. 1127, 442 P.3d 509 (2019).

ANALYSIS

The outcome for both constitutional questions is driven by whether this so-called "wrongful birth" action should be considered a new cause of action as of 1990 when the Arche court confirmed its existence. We examine that first.

In wrongful birth actions, parents of a child born with a detectable birth defect

allege they would have terminated the pregnancy but for the physician's negligent failure to inform them of the likelihood of that defect. The parents' injury results from their loss of the opportunity to make an informed decision about whether to proceed with the pregnancy. Plowman v. Fort Madison Community Hospital , 896 N.W.2d 393, 399 (Iowa 2017). As one court observed, any "wrongfulness" lies not in the birth, but in the physician's negligence. Viccaro v. Milunsky , 406 Mass. 777, 779 n.3, 551 N.E.2d 8 (1990).

The wrongful birth cause of action was presented to this court in 1990 as a matter of first impression. Arche , 247 Kan. 276, 798 P.2d 477. That case answered two certified questions from the United States District Court for the District of Kansas: (1) "Does Kansas law recognize a cause of action for the wrongful birth of a permanently handicapped child?" and (2) "If Kansas does recognize such a cause of action, what is the extent of damages which may be recovered upon proper proof?" 247 Kan. at 276, 798 P.2d 477.

In agreeing the cause of action could proceed based on then-existing Kansas law, and assuming the facts alleged were true at that early stage in the proceedings, the Arche court explained,

"A plaintiff must prove three elements to prevail in a medical malpractice action in this state: ‘(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by

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