In its opinion dated February 8, 2018, the Supreme Court of the State of Oregon (“Oregon Supreme Court”) recognized wrongful birth claims but rejected wrongful life claims in Oregon, thereby affirming the lower appellate court’s decision.
In the case the Oregon Supreme Court was deciding, the plaintiffs, who are the parents of two children, alleged that the defendant medical providers, who had provided medical services to their older son, failed to timely diagnose the older son’s (“M”) genetic disorder, Duchenne’s muscular dystrophy (“DMD”), and failed to inform them of that disorder. The parents further alleged that had the defendant medical providers timely diagnosed the older son’s DMD, they would not have later conceived another son (“T”) suffering from DMD. They alleged on their own behalf and on behalf of their younger son that the defendants’ medical negligence caused them to suffer economic and noneconomic damages.
The Parents’ Claim
The Oregon Supreme Court stated that the parents’ claim is that the defendants negligently failed to diagnose M’s genetic disorder in a timely manner and to communicate that diagnosis to the parents, and that defendants’ negligence caused the parents to conceive and bear T and suffer the economic and emotional burdens associated with T’s genetic disability.
The Oregon Supreme Court stated that, contrary to the defendants’ argument, the lack of a direct physician-patient relationship does not defeat the parents’ claim: a direct physician-patient relationship can be one ground for creating affirmative protections of a plaintiff’s economic and emotional interests under negligence law, however, it does not necessarily follow that a direct physician-patient relationship is the only such ground available to the parents.
The Oregon Supreme Court stated that in appropriate circumstances it has been willing to recognize that, in carrying out a professional obligation to a client, the professional may be required to protect the interests of a third party as well. In such circumstances, the professional’s relationship with a client not only gives rise to an obligation to protect the interests of the client, but it also can give rise to an obligation to protect the interests of a third party. The facts of particular cases will determine what interests and what third parties receive such protection. The Oregon Supreme Court continued: “we can discern no reason to categorically exclude physicians from potential claims of third-party professional negligence that are available against other professionals.”
In the case it was deciding, the parents alleged that the defendants undertook to diagnose M’s symptoms that, according to the parents, presented the potential of a genetic disorder. As M’s legal guardians, the parents alleged that they expected to receive information from the defendants about M’s diagnosis. And as M’s biological parents, the parents alleged that M’s diagnosis potentially implicated their own genetic risks. Further, the parents alleged that they relied on defendants to exercise their professional skill and ability to diagnose M’s symptoms and would not have conceived and born T if they had known of M’s genetic disorder, a condition that they allege a physician of reasonable skill and ability would have diagnosed soon enough to avoid T’s conception and birth.
The Oregon Supreme Court concluded that those factual allegations are sufficient, if proved, to establish that, in addition to their obligation to protect M’s interests, the defendants had a limited obligation to protect the parents’ interests as well. The defendants’ undertaking to provide medical care to M subjected them to a standard of care requiring the exercise of reasonable professional skill and care. Under the facts alleged, that standard required the defendants to reasonably perform specific tasks: diagnose M’s genetic disorder and communicate that diagnosis to the parents. The parents’ relationship with the defendants arose within the context of the defendants’ undertaking and the parents’ status as M’s biological parents and primary caregivers.
The Oregon Supreme Court held: “under the facts alleged in this case, such a relationship gives rise to legal protection. By failing to reasonably diagnose M’s genetic disorder and communicate that diagnosis to the parents, defendants failed to reasonably protect M’s interests in receiving medical care and failed to reasonably protect the parents’ separate interests in avoiding the reproductive risks associated with their own genetic composition … The parents have alleged facts that, if proved, would be sufficient to establish that defendants and the parents had a mutual expectation that defendants would provide the parents with information that implicated the parents’ right and ability to make informed reproductive choices, that meeting that expectation would not impose an undue burden on defendants beyond the obligation that they already owed to their patient, M, and that protecting the parents’ interest would not be detrimental to the interests of M … In addition, we conclude that the facts that the parents have alleged adequately describe conduct by defendants that fell below the standard of care required to protect the parents’ interest.”
The Oregon Supreme Court further held that the parents could recover noneconomic damages for their emotional distress they have and will incur as a result of T’s genetic condition through the remainder of his minority: “we agree with the majority of courts that have addressed the issue and conclude that the parents should be allowed to seek such damages in this case.” (The plaintiffs only sought such damages through T’s minority.)
T’s claim is based on the factual premise that, if the defendants had not acted negligently, then T would not have been born. The vast majority of courts that have considered the question have refused to recognize such claims (most courts that have refused to recognize such claims have done so after confronting the imponderability of comparing life to nonexistence).
The Oregon Supreme Court stated that the alternatives for T were that he would be conceived and born with DMD or that he would not be conceived and born at all. The Oregon Supreme Court held: “Without a principled way to determine the relative values of life and nonexistence under the circumstances alleged in this case, we cannot conclude that T had a legally protected interest in remaining in a state of nonexistence.”
A dissenting opinion stated: “I cannot identify a legal basis for denying T, the child with the disabling condition that is the gravamen of his parents’ claim, the right to seek the same recovery that is permitted to his parents.”
Source Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or 431 (2018)
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