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by Mark A. Abramson and Holly B. Haines
The United States Constitution protects the fundamental rights of citizens to make procreative choices not to conceive or bear children. Consequently, when a child is born as a result of physician negligence that deprives a patient of these fundamental family planning rights, the New Hampshire Supreme Court has held that the patient may recover damages for that medical malpractice. The New Hampshire Supreme Court has allowed recovery of damages for the costs of pregnancy, labor, delivery and post-natal complications from medical malpractice for a wrongful conception, arising from a negligently performed sterilization procedure or negligently filled birth control prescription and resulting in the birth of a healthy child. In a similar vein, the Court has allowed recovery of damages for the extraordinary costs attendant to a child’s disability from medical malpractice for a wrongful birth, arising from negligent prenatal reproductive advice or testing and resulting in the birth of a disabled child.
What our Supreme Court has not yet decided is whether plaintiffs can recover damages for the extraordinary costs attendant to a child’s disability from preconception medical malpractice arising from negligent reproductive advice or testing and resulting in the conception and birth of a disabled child. We submit that they can. In fact, because such a case would encompass both medical malpractice concepts involving wrongful conception and wrongful birth, it would entitle the plaintiffs to recover the damages allowed in both prior cases - the damages attendant to the mother’s pregnancy, birth and post-natal complications and the extraordinary costs attendant to the child’s disability due to the doctor’s violation of the parents’ constitutional right not to procreate.
This is a recognized cause of action for medical malpractice under New Hampshire law and recovery of the extraordinary damages attendant to the child’s disability is a natural extension of the New Hampshire Supreme Court’s holdings in Kingsbury v. Smith and Smith v. Cote. When a doctor’s negligent reproductive advice deprives New Hampshire patients of their constitutionally protected right to make an informed reproductive decision not to procreate, it creates a compensable injury when an unplanned or unwanted disabled child is born and the doctor should be responsible for the extraordinary costs associated with raising a child with such disabilities.
In the Kingsbury and Smith cases, the New Hampshire Supreme Court did not recognize new causes of action for wrongful conception and birth, it merely recognized an extension of traditional medical malpractice and tort law and applied it to their facts, allowing recovery of specified damages. In doing so, the Court stated:
Assuming that every element necessary to support an action for medical malpractice is present, the common law of our State will permit a claim for a wrongful birth. Non-recognition of any cause of action for wrongful conception [or wrongful birth] leaves a void in the area of recovery for medical malpractice and dilutes the standard of professional conduct and expertise in the area of family planning, which has been clothed with constitutional protection.
There are only two distinctions in these cases from traditional medical malpractice cases. The first distinction is that these causes of action are the only ones where the defendant’s medical malpractice results in the creation of a new human life. The second distinction is that these claims do not arise from a traditional physical injury caused by medical malpractice. Rather, these claims arise from the physician’s negligent invasion of the fundamental parental right to make procreative decisions to conceive or give birth to a child. It is the invasion of this protected constitutional right which creates a compensable injury when an unplanned or unwanted child is born. It is then the existence and sanctity of the new human life which creates limits on the recoverable damages, precluding recovery of the ordinary child rearing expenses for a healthy child, but allowing recovery of the extraordinary costs of raising a disabled child who is born as a result of a physician’s medical negligence.
II. The Evolution of the Law of Recovery for Medical Malpractice Resulting in the Birth of a Child
In Kingsbury v. Smith, the New Hampshire Supreme Court had its first opportunity to decide whether New Hampshire would allow recovery for Athe birth of a child which would not have occurred but for the [negligence] of the defendant tortfeasor. In that case, the plaintiff mother underwent a tubal ligation after the birth of her third child to purposely limit the size of her family. The sterilization procedure failed and, eighteen months later, the plaintiff mother gave birth to a fourth child, who was normal, healthy, alive and well.
In recognizing the cause of action as a medical malpractice claim for wrongful conception, our Supreme Court adopted the definitional distinctions for the three prenatal torts discussed by the Pennsylvania Superior Court in Speck v. Feingold. The Speck Court, however, used the distinct definitions for wrongful conception, wrongful birth and wrongful life only to distinguish when the negligent medical care occurred in that case. This was important for the decision because the Speck case involved medical negligence in all three spheres, which resulted in the birth of a severely disabled child. The Speck Court noted that the terms are often used interchangeably in Aactions brought to recover damages based on negligence of doctors, pharmacists, hospitals and others in the medical profession for wrongfully allowing a particular child or children to be born.
In Speck, the plaintiff father underwent a vasectomy to limit the size of his family and prevent conception of future children because he was a carrier of a crippling and disabling genetic disease. The defendant urologist performed the vasectomy and assured the plaintiff he was sterile. The plaintiff resumed sexual relations with his wife, who became pregnant. Fearing that her child would be born with the same crippling disease her husband and other children carried, the plaintiff wife sought an abortion from the defendant OB/GYN. The abortion failed as well and the defendant OB/GYN failed to recognize that the plaintiff mother was still pregnant, depriving her of the opportunity to seek another termination of the pregnancy. The plaintiff mother gave birth to a severely disabled child, afflicted with her father’s genetic disease.
The plaintiffs brought medical malpractice claims against both defendants, which the Speck Court defined as: (1) wrongful conception for the father’s claim for the negligent sterilization procedure resulting in the pregnancy; (2) wrongful birth for the mother’s claim for the negligent abortion procedure resulting in the birth of the disabled child; and (3) wrongful life for the child=s claim for her injuries for the defendants’ negligent failure to prevent her birth. The Speck Court noted the varied nature of factual wrongs that are often brought under these titles, and adopted them only to analyze the specific facts to determine whether a cause of action existed on behalf of each plaintiff for the negligence alleged. The Speck Court recognized the validity of the father’s wrongful conception claim and the mother=s wrongful birth claim, but declined to recognize the child’s cause of action for wrongful life.
In affirming the decision, the Pennsylvania Supreme Court found that recognition of these medical malpractice claims required only Athe extension of existing principles of tort law to new facts: damages alleged to have resulted from the birth of an unplanned, unwanted, genetically defective child. The Court noted that Arecognition of such causes of action would merely accord injuries received as a result of a negligently performed sterilization or abortion procedure the same legal protections accorded any other negligently performed medical procedure. The Court also recognized the plaintiffs’ constitutionally protected right to engage in sterilization and abortion procedures and found that if the plaintiffs were allowed to seek the procedures but unable to seek a remedy at law for the result of negligent performance of those procedures, the right would be hollow indeed. The Speck Court allowed recovery of the child rearing costs associated with the disabled child if the plaintiffs were successful at trial. Notably, the Pennsylvania Supreme Court made no distinction between the conception and birth claims, terming them the parents’ claims, and allowed full recovery of damages for both of the parents’ claims under existing principles of tort law.
While recognizing the validity of the wrongful birth cause of action in New Hampshire and the reasoning of the Pennsylvania Court, the New Hampshire Supreme Court did not allow full recovery of tort damages for the Kingsbury plaintiffs’ medical malpractice claim. Rather, the Court analyzed the merits of the four divergent views for recoverable damages in these cases from other states, including: (1) non-recovery of any damages; (2) full recovery of all damages including child rearing costs; (3) full recovery of damages with an offset for the benefits of the child; and (4) limited recovery of pregnancy related damages but no damages for raising a healthy child. The Court rejected the first three views of recoverable damages and adopted the limited recovery view of recovery due to the public policies respecting the sanctity of the creation of a new human life. Because the Kingsbury child was born healthy and normal, the Court limited recovery to the hospital and medical expenses of the pregnancy, the costs of sterilization, pain, suffering and lost wages associated with the pregnancy, and the loss of the husband’s consortium.
The Kingsbury Court, for policy reasons, refused to place a value on the creation of a human life or the costs for raising a normal, healthy child. In doing so, however, the Court implicitly acknowledged that the child rearing costs of an unplanned and unwanted child are damages which would be recoverable under a traditional medical malpractice case not involving the birth of a healthy child. The Kingsbury Court made clear that its holding was limited to cases involving the birth of a normal healthy child. The Court clearly stated that: Other and differing circumstances, including but not limited to the birth of an abnormal or injured child, might lead us to a different conclusion.
Smith v. Cote was the next opportunity for the New Hampshire Supreme Court to address a prenatal medical malpractice action resulting in the birth of a child, and allowed the Court to expound on its reasoning from the Kingsbury case. In Smith, the plaintiff mother was exposed to rubella during pregnancy, thereby also exposing the fetus of her unborn child to the virus. The defendants, OB/GYN specialists, failed to test the mother for rubella exposure in a timely manner and failed to inform her of the potential for birth defects in her child from the exposure, thereby preventing her from making an informed decision about giving birth to a disabled child. The child was born profoundly disabled by congenital rubella syndrome.
The plaintiff mother brought suit to recover the extraordinary medical and educational costs she would incur raising her profoundly disabled child. Her claim was characterized as one for Awrongful birth. The plaintiff child brought suit for her own damages and for her impaired life due to her mother’s diminished capacity to care for her and nurture her due to her problems. The child’s claim was characterized as one for wrongful life. The Court recognized the constitutionally protected right of mothers to decide whether or not to bear a child and, given that constitutionally protected right of choice, the only issue for the Court to decide was whether the New Hampshire common law allowed development of a duty to exercise care in providing information that bears on that choice. The Court held that it does.
The Court based its decision, in part, on advances in science and medical testing, which allow women to make more informed choices through reproductive counseling; and, in part, on the constitutional protections afforded to a woman’s reproductive choices since the decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Court observed that:
[P]hysicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice, or whose actions could reasonably be said to give rise to such a duty to provide such testing or advice, have an obligation to adhere to reasonable standards of professional performance.
The Court opined that if the plaintiff could prove the standard of care for medical practice in the OB/GYN specialty required the defendants to test for and diagnose the rubella infection and inform the plaintiff of the potential effects of the infection on her unborn child and they failed to do so, then she would prove the first two elements of a medical malpractice case. The Court found that the third element, causation, required only proof that Abut for@ the defendants= negligent failure to inform, the plaintiff would have made a different procreative choice, in that case by getting an abortion. The Court rejected the defendants’ argument that the causation test was too hypothetical and remote to prove causation and ruled that the subjective standard for causation was present in every informed consent case.
Perhaps most importantly, the Smith Court found that by bearing a disabled child after being deprived of the right to make an informed procreative decision, the plaintiff suffered an injury. The Smith Court found that its holding in that case and its holding in Kingsbury both recognized that Aparents may be injured by the imposition on them of extraordinary liabilities following the birth of a child . . . parents may have constitutionally cognizable reasons for avoiding the emotional and pecuniary burdens that may attend the birth of a child suffering from birth defects. Scientific advances in prenatal health care provide the basis upon which parents can make the informed decisions that Roe [and Griswold] protect. We see no reason to hold that as a matter of law those who act negligently in providing such care cannot cause harm, and hence are immune from suit. Such a holding would leave a void in the area of recovery for medical malpractice and dilute the standard of professional conduct in a growing and increasingly important field. In so stating, the Court implicitly extended its reasoning to Kingsbury v. Smith and recognized that in a wrongful conception case resulting in the birth of a disabled child, a plaintiff may be entitled to recover damages for extraordinary losses.
The Court observed that the wrongful birth cause of action is unique because the injury involved is not physical, but rather it is based on the negligent invasion of the parental right to decide whether to avoid the birth of a child with congenital defects.
When parents are denied the opportunity to make this decision, important personal interests may be impaired, including an interest in avoiding the special expenses necessitated by the condition of a child born with defects, an interest in preventing the sorrow and anguish that may befall the parents of such a child, and an interest in preserving personal autonomy, which may include the making of informed reproductive choices.
The Court stated that under the traditional rule of compensatory damages in tort cases, the plaintiff would receive all of the costs of raising her child, both ordinary and extraordinary child rearing expenses. The Court recognized, however, that under the traditional rule of compensatory damages a plaintiff would be required to mitigate her damages, which would require adoption in a wrongful birth case (or abortion in a wrongful conception case). Given its Aprofound respect for the sanctity of the family, the Court would not impose this rule and found that recovery of the extraordinary costs of raising a disabled child was the appropriate measure of recovery. Because the birth was planned, the Court did not allow recovery of pregnancy related expenses, analogizing its rule of recovery to that of expectancy costs in contract law, observing that once a birth is planned for and expected, certain ordinary costs of pregnancy and child rearing are expected as well. It is the extraordinary costs associated with the child=s disability that are not expected, which is why those costs are recoverable. The Court found that this rule ensured that the parents of a disabled child would be able to recover the costs associated with the disability, but also establish a necessary and clearly defined boundary of liability for defendants. The Court ruled that these extraordinary costs may be recovered both before and after the child’s majority. Finally, the Court ruled that the parents may recover for extraordinary maternal care required as a result of a child’s disability.
The Smith Court also declined to recognize an action for wrongful life on behalf of the child. The Court’s reasoning for doing so was very similar to the reason it declined to allow recovery for normal child rearing costs for a healthy child once it was born in Kingsbury - - because the State cannot place a value on someone’s life or decide whether a life is or is not worth living. This would violate the public policy upon which Kingsbury was founded, Afavoring the preciousness and sanctity of human life. The right to life [once created], and the principle that all are equal under the law, are basic to our Constitutional order. Simply put, the judiciary ... has no business declaring that among the living there are people who should not have been born.
Under the holdings in Kingsbury and Smith, the bottom line for recoverable damages in New Hampshire when medical malpractice results in the conception and birth of a child is as follows. Under each of these cases, no damages are recoverable for the costs of raising a healthy, normal child, whether or not it is planned or expected because the Court will not place a value on an existing life once it is created. This is why New Hampshire does not recognize a cause of action for wrongful life. Under Kingsbury, a plaintiff who is negligently deprived of her constitutionally protected choice not to conceive a child is entitled to recover the expenses stemming from the unplanned pregnancy, from conception through birth, assuming the child is born healthy. Under Kingsbury and Smith, a plaintiff who is negligently deprived of her constitutional right not to conceive or bear a child who then gives birth to a disabled child is also entitled to recover the extraordinary costs associated with the child=s disability, including those incurred after the age of majority. This is because parents are responsible for the medical expenses of their children.
III. The Case
We recently had a medical malpractice case arising from a defendant doctor’s negligent misdiagnosis of menopause based on one lab test result and the defendant’s negligent reproductive advice that contraception was no longer required based on that test result, which resulted in the conception and birth of a severely disabled child. The mother, who was 43, had been using oral contraceptives prescribed by her primary care provider for more than fifteen years and needed a refill of her birth control prescription. Because she had recently missed her period, she sought the advice of an OB/GYN regarding her menstrual cycle and to refill her contraceptive prescription. After performing tests and a physical exam, the defendant OB/GYN negligently interpreted a lab test result, negligently told the mother she was in menopause at the age of 43, and negligently advised the mother there was no need to use contraception any longer because she was in full blown menopause. Relying on the defendants’ negligent medical advice, the mother did not use contraception, engaged in sexual relations with her husband and became pregnant with her son who was born severely disabled by autism. We filed suit for the plaintiff parents to recover the extraordinary expenses they would incur for the remainder of their lives to care for their autistic son who required 24/7, 1:1 care and daily therapy just to survive.
When their disabled child was born in February 2009, the parents had been married for 19 years, had already raised three children, were in the prime of their lives and were preparing to be done with child rearing. They had been exercising their fundamental right not to procreate through using contraception for more than fifteen years. The parents were a college educated, hard working, dual income couple, who had dedicated their lives to raising and providing for their three kids. The defendant’s negligence forced them to refocus their lives on raising an infant with special needs, on only one income, while paying college tuitions for three adult children. The child has autism and global developmental delays. He has extraordinary special needs and a normal life expectancy that will far exceed the lives of his parents. The child will require 1:1 care for the rest of his life; and, if his parents are unable to provide that for him, someone must do so.
The defendant tried to avoid paying for the extraordinary expenses she forced on the plaintiffs by classifying their claim as one for wrongful conception and not wrongful birth, arguing the plaintiffs were limited to recovering only the costs of the pregnancy, labor, delivery and post-natal surgical procedures.
This case was neither a true wrongful conception case, nor a true wrongful birth case, based on the distinct definitions laid out in Speck v. Feingold and adopted by our Supreme Court. It was, however, an extension of both definitions.
The distinct definitions for wrongful conception and wrongful birth have caused great confusion across courts who have adopted them. Both definitions are based on the same premise and have the same bottom line - a child was born as a result of the defendant=s negligent medical care or advice. The only meaningful distinction between them is the time when the negligent medical care or advice occurs - before or after conception. The wrongfulness of the defendants= conduct is not in the conception, the birth, or the life of the child, but is in the invasion of the constitutional right of parents to make their own reproductive and family planning choices. Despite this, since our Supreme Court has adopted those definitional distinctions, our case held many similarities to each cause of action and could be decided by a harmonization of the policies and principles laid out in the Kingsbury and Smith cases.
Like a wrongful conception case, the negligent medical care and reproductive advice in our case occurred prior to the child’s conception, and it occurred when the defendant expressly knew that the plaintiffs did not want to conceive a child and that the plaintiffs had been exercising their constitutional right not to do so for more than fifteen years. Unlike the reported definition of a wrongful conception case, however, this case did not involve a wrongful sterilization procedure or a negligently filled contraception prescription. In fact, the case was far more akin to a wrongful birth case as defined by our Supreme Court because it involved the defendant’s negligent interpretation of test results and negligent provision of reproductive advice based on those results, which resulted in the birth of an unplanned and profoundly disabled child.
This case was most closely akin to those wrongful birth cases involving negligent preconception genetic testing and counseling, where the results of the testing and negligent advice inform the plaintiffs’ decision whether to use contraception or procreate and usually result in the birth of a profoundly disabled child. In the preconception genetic counseling cases, as here, the medical malpractice claim is based on the violation of the parents’ right not to procreate based on negligent preconception testing and reproductive advice. It is not the deprivation of the right to terminate an already conceived and wanted pregnancy seen in traditional wrongful birth cases. The critical difference between this case and most wrongful birth cases was that in most wrongful birth cases at least the plaintiffs want to procreate and give birth to a healthy child. In this case, the parents did not want to give birth to any more children whether healthy or disabled, because they had three healthy children who were almost grown. They had purposefully given up their right to procreate.
These preconception genetic testing cases accord with the New Hampshire Supreme Court=s reasoning that physicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice . . . have an obligation to adhere to reasonable standards of professional performance. By negligently misinterpreting the test results, negligently providing the plaintiffs with advice not to use contraception, and failing to inform the plaintiffs of their potential for continued fertility, the defendant deprived the parents of their right to make an informed procreative decision, which resulted in the disabled child’s birth. Had the defendant appropriately informed the mother that despite any test results it takes at least twelve months without menses to make a menopause diagnosis and she should use contraception or abstain from sexual relations until that formal diagnosis is made, she would have done so and the child would not have been born. The parents relied on the defendant’s negligent reproductive advice to their detriment and, we argued, the defendant’s should pay for the extraordinary harms they have caused.
The New Hampshire Supreme Court recognizes that parents such as the plaintiffs Amay be injured by the imposition on them of extraordinary liabilities following the birth of a child@ and that parents may have constitutionally cognizable reasons for avoiding the emotional and pecuniary burdens that may attend the birth of a child. The Court is bound by the law that protects a woman’s right to make procreative choices, whether regarding contraception, sterilization or abortion. The injury in this case, as in Smith, was the invasion of the parents’ right not to bear a child. When parents are denied the opportunity to make this decision, important personal interests may be impaired, including an interest in avoiding the special expenses necessitated by the condition of a child born with defects, an interest in preventing the sorrow and anguish that may befall the parents of such a child, and an interest in preserving personal autonomy, which may include the making of informed reproductive choices. Because the injury sustained by the parents is identical to that sustained by the Smiths, we argued they were entitled to recover all of the extraordinary costs they have incurred and will incur as a result of their child’s disability. They are also entitled to all of the costs relating to their unplanned pregnancy as allowed in Kingsbury.
By arguing that the plaintiffs’ claim was limited to wrongful conception and the defendant was liable only for the costs of the plaintiffs’ pregnancy related costs, the defendant tried to avoid paying for the catastrophic harms she imposed on the plaintiffs. The defendant’s argument basically asked the Court to say that doctors can never be liable for extraordinary damages incurred after the birth of a child when their negligence occurs before conception of the child. To entertain the defendant’s argument and limit the recovery of extraordinary costs to wrongful birth cases, the Court would have to immunize OB/GYNs for their negligent interpretation of gynecologic test results and negligent provision of reproductive advice before a pregnancy exists. This is the precise dilution of the standard of care in professional practice in obstetrics and gynecology that the Smith and Kingsbury Courts sought to avoid.
Indeed, in our case, the mother would have been better off if she never went to a specialist in obstetrics and gynecology to determine the cause of her amenorrhea and refill her birth control prescription. If she had not gone to the defendants’ practice, she would not have been diagnosed as being in menopause and she would have abstained from sex until her primary care provider refilled her birth control prescription. In fact, her outcome would have been the same if she had sought no medical care at all and thrown caution to the wind, having unprotected sexual relations with her husband. The mother in our case did not do this though. She went to a specialist specifically seeking reproductive advice about her menstrual cycle and her need for contraception. That specialist must be held to the standards of professional practice in obstetrics and gynecology for diagnosing menopause and for making contraceptive recommendations to patients. When a specialist is negligent in doing so and prevents a patient like this mother from making an informed reproductive decision to stop using contraception, that specialist must be held liable for the consequences of his or her actions, including the costs of an unwanted pregnancy and the extraordinary costs attendant to the birth of an unplanned and disabled child.
This case resolved for a confidential amount at mediation while a summary judgment motion on this issue was pending in the Superior Court.
Under the holdings in Kingsbury and Smith, plaintiffs who are deprived of their constitutional rights not to conceive or bear a child due to preconception medical malpractice are entitled to the expenses stemming from the unplanned pregnancy, from conception through birth, as well as all of the extraordinary costs associated with the child=s disability after his birth. The injury in these cases is not the life or the disability of the child. The injury in these cases is the violation of the parents’ constitutional right to make family planning decisions. The recoverable damages from the injury are then the extraordinary costs of the pregnancy, if unplanned, and the extraordinary costs of the child’s medical and educational needs and support if the child is born with a disability. Because the New Hampshire Supreme Court will never say that a human life has no value, if a child is born healthy, whether or not as a result of medical negligence, there is no recovery available for the life that was created. If a life is begun, however, and a child is born catastrophically impaired, there is recovery allowable for all of the extraordinary costs associated with the impairment.