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Healthcare Law--Medical Negligence: Parents of Severely Disabled Child Finally Allowed to Bring Forth Claims of Wrongful Birth--Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393 (Iowa 2017).

State courts have been divided as to whether a parent has the right to sue for medical negligence under a wrongful birth claim. (1) In this case of first impression, Iowa law had yet to determine whether a parent, whose child was born with severe disabilities due to medical negligence, had the right to sue for wrongful birth. (2) In Plowman v. Fort Madison Community Hospital (3) the Supreme Court of Iowa considered whether or not a physician's medical negligence could allow for parents of the affected child to bring forth a claim of wrongful birth. (4)

Pamela Plowman became pregnant with her third child Z.P. in late 2010. (5) In January 2011, Pamela Plowman began seeing a physician that specialized in obstetrics and gynecology for prenatal care at the Fort Madison Community Hospital ("FMCH"). (6) Approximately twenty-two weeks into her pregnancy, Pamela Plowman underwent an ultrasound at FMCH to assess fetal growth. (7) The films of the ultrasound indicated that Z.P.'s head was "abnormally small, less than the third-to-sixth percentile for his development." (8) About two weeks after the ultrasound, Mrs. Plowman met with Dr. Steffenmeiser, who informed that Z.P.'s development was fine. (9) Mrs. Plowman gave birth to Z.P. approximately three months after meeting with Dr. Steffensmeiser. (10)

Approximately two months after the birth of Z.P., Mrs. Plowman had noticed that Z.P. had "bicycle movements" and "smacking of the tongue." (11) Subsequently, Z.P. was diagnosed with small corpus callosum, cerebral palsy, microcephaly, intellectual disability, cortical visual impairment and a seizure disorder. (12) Doctors were unable to determine the exact cause of Z.P.'s disabilities it is unlikely he will ever be able to walk or speak. (13)

Mrs. Plowman filed suit against FMCH, Dr. Pil Kang, Dr. John Paiva, Davis Radiology, P.C., Dr. Steffensmeier, the Women's Center, and Fort Madison's Physicians and Surgeons (collective the "defendants"), on July 31, 2013. (14) Defendants filed answers denying negligence and asserted that Mr. and Mrs. Plowman failed to state a claim upon which relief could be granted. (15) Mr. And Mrs. Plowman argued in opposition to the motion that Iowa law did not preclude a wrongful-birth claim. (16) The Supreme Court of Iowa reversed the district court's decision for summary judgment and held that a wrongful-birth theory fit within the general tort principles of medical negligence. (17)

In 1973, the Supreme Court upheld a woman's legal right to an abortion which opened the door to the first successful wrongful birth lawsuit a few years later. (18) Courts recognize three different types of claims: (1) wrongful pregnancy; (2) wrongful life; and (3) wrongful birth. (19) Claims for wrongful pregnancy in which a parent of a normal, healthy child tries to recover expenses of rearing that child from a physician who negligently performed an abortion are not recognized under Iowa law. (20) A wrongful life claim is brought by the child suffering from such birth defects. (21) At least twenty-three states recognize a wrongful-birth claim by judicial decision. (22) A claim for wrongful birth is an action brought by parents of a child born with disabilities or birth defects. (23) Given the progression of abortion rights and expansion of prenatal genetic testing, wrongful births have become more easily avoidable. (24)

To determine whether a cause of action for wrongful birth can be brought under Iowa law, the Supreme Court of Iowa uses the three-factor test from Dier v. Peters-. (1) whether the action is consistent with traditional concepts of common law; (2) whether there are prevailing policy reasons against recognizing such a cause of action; and (3) whether Iowa statute speaks to the issue. (25) Some courts have likened wrongful birth cases to traditional actions in medical malpractice because both torts implicate the right of self-determination. (26) The traditional elements of a medical negligence action under common law include: (1) an applicable standard of care; (2) a violation of this standard; and (3) a causal relationship between the violation and the injury sustained. (27) In a wrongful birth action, the severity of the condition is important in determining the scope of the physician's standard in his duty to disclose. (28) Depending on the jurisdiction, a juror may be bound by medical expert testimony regarding the scope of disclosure or the juror may have the power to determine which defects are considered so horrible that a reasonable person might choose to abort on that basis. (29)

The few jurisdictions that have rejected a wrongful birth cause of actions have done so on policy grounds. (30) As parental genetic testing becomes the norm in most jurisdictions, it is expected that a broader recognition of wrongful birth and wrongful life actions be upheld to conform to society's changing conceptions of fairness, compensation and justice. (31) Other states recognize wrongful birth actions while rejecting those of wrongful life based on the view that there are very real differences between the two causes of action and distinct moral interests to be protected. (32) The right to opt for child-birth is among one of the most cherished and personal decisions parents have to make, however that does not mean "the [s]tate is prohibited from taking steps to ensure that decision is thoughtful and informed." (33)

In Plowman v. Fort Madison Cmty. Hosp., the Iowa Supreme Court reversed the district court's summary judgment for the defendants and remanded the case to allow for a cause of action of wrongful birth claims. (34) The "defendants argued that the cause of action for wrongful-birth had not been recognized in Iowa ... [and] therefore plaintiffs claim should be dismissed." (35) The court noted that actions for malpractice are not ordinarily susceptible of summary judgment. (36) They relied upon two developments to help explain the trend toward judicial acceptance of wrongful birth actions: advancements in prenatal care and Roe v. Wade (37) These advancements have made it possible for parents: (1) to know, well in advance, of the risk or presence of congenital defects in the fetus that is conceived; and (2) to decide to terminate the pregnancy on the basis of this knowledge. (38) Applying the recent methods of medical advancements, the court then examined whether Iowa law allowed a cause of action for wrongful birth claims using the Dier three-factor test. (39)

The Supreme Court of Iowa held that the plaintiffs met all of the Dier factors, noting that the wrongful birth claim fit within the traditional boundaries of negligence. (40) The Plowman court relied upon the doctrine of informed consent to determine when the claim for wrongful birth is consistent with traditional common law principles of medical negligence. (41) The court determined that there were no prevailing policy reasons against recognizing such a cause of action despite the defendant's contention that a wrongful-birth action would contravene Iowa public policy. (42) The policy implication of an opposite ruling, declining to recognize a claim for wrongful birth, would immunize those in the medical field from the liability of their performance in the area of medical malpractice, and more specifically, prenatal care and genetic testing therefore public policy favors allowing such actions. (43) The defendant's argued that Iowa law precluded the plaintiffs from bringing a wrongful-birth claim because Iowa Code [section]613.15A and Iowa Rule of Civil Procedure 1.206 limited the parents' ability to recover medical expenses for a child's injuries which were wrongfully or negligently caused. (44) The Supreme Court of Iowa rejected this argument and held the Iowa legislature had, by statute, expressed policy preference for medical informed-consent procedures in Iowa Code [section][section]146A.1,147.137. (45)

The Supreme Court of Iowa correctly reversed the allowance of summary judgement for the defendants in the district court. (46) The Court acknowledged that physicians who perform prenatal care and testing have an obligation to adhere to reasonable standards of professional performance. (47) The court adopted the Dier three factor test to decide whether wrongful birth claims fit within traditional elements of common law negligence. (48) The Court reasoned that as a patient of the defendants, the plaintiff is entitled to an applicable standard of care while receiving medical treatments. (49) In order to establish a deviation from the standard of care, the Plowman's needed to prove a competent physician would have observed the abnormalities from the ultrasound and subsequent procedures and would have reported these abnormalities to the family. (50) The causal relationship between the violation and injury sustained here is that had the Plowmans been informed of the abnormalities and impairments without delay, they would have terminated the pregnancy. (51) The court acknowledged that although the defendants did not cause the abnormalities, the injury is the deprived opportunity to make an informed decision to terminate the pregnancy. (52) Although previous medical negligence actions sought recovery for disabling injuries that were inflicted by the doctors, the Iowa Courts have also allowed patients to sue for physician's negligent failure to diagnose health problems the physician did not cause similar to the Plowman's filing suit. (53)

Courts disallowing wrongful-birth claims reject the view that existence of human life can constitute a cognizable injury. (54) By comparison, however, under the wrongful-birth theory, the injury is not the resulting life, but rather the negligence of the doctor resulting in the deprivation of information crucial to a parents' choice to terminate a pregnancy. (55) The court properly acknowledged that a wrongful birth claim is analogous to a claim for medical negligence. (56) Refusing to acknowledge a wrongful birth claim under the principles of medical negligence would complicate medical malpractice jurisprudence by allowing this type of negligence to be immune from legal action. (57)

The notion that allowing wrongful birth claims would stigmatize the disabled community, encourage abortions, increase costs of prenatal care, and result in fraudulent claims was not enough to warrant denying a cause of action for wrongful birth claims. (58) If anything, the legislature through enacting a statute has made a policy choice to ensure a woman makes an informed decision whether to terminate or continue a pregnancy (59) Iowa Code section 613.15A and Iowa Rule of Civil Procedure 1.206 appear to limit the parents' ability to recover medical expenses for injuries as they require the parent to establish the injury was wrongfully or negligently caused. (60) However, the policy preference for medical informed consent procedures and allowing a cause of action for wrongful birth claims would further the legislative purpose without contravening section 613.15A or rule 1.206. (61)

The inaction of a medical professional's care over a patient should be held to the same standard as a medical professional who commits a tort through action. (62) By allowing wrongful birth claims, the Iowa Supreme Court is now holding medical professionals liable for their failure to act and inform a patient of genetic defects that would have played a major role in determining whether to continue or terminate a pregnancy. (63) If a parent's right to make an informed decision is taken away, that parent should be able to recover for extraordinary expenses that are incurred due to that right being taken away. (64) Raising a child is undoubtedly expensive but a parent is aware of this when they choose to have children. (65) "However, the costs of raising a disabled child incur astronomical expenses that many families cannot afford, which forces them to make a difficult decision to terminate a pregnancy knowing they will not be able to give their child a proper life suited to the child's needs. (66)

If this decision is taken away due to the negligence of a medical professional, the parents are entitled to collect for expenses incurred. (67) The Supreme Court of Iowa determined that a suit for wrongful birth is cognizable under Iowa law as it fits within the common law principles of medical negligence, is favored by public policy, and is not precluded by Iowa statute. (68)

Kaitlyn M. Bastarache, J.D. Candidate, Suffolk University Law School, 2018; Stonehill College, 2016. Ms. Bastarache may be contacted at kbastarache@su.suffolk.edu.

(1) See Lininger v. Eisenbaum, 764 P.2d 1202, 1206 (Colo. 1988) (en banc) (reasoning parents had redressable injury for physician's negligence). "Although courts and commentators often speak of wrongful life and wrongful birth as torts in themselves, it is more accurate to view these terms as describing the result of a physician's negligence." Id. at 1205; see also Keel v. Banach, 624 So.2d 1022, 1029 (Ala. 1993) (holding parents may maintain a wrongful birth claim for their "genetically or congenitally defective child"); Siemieniec v. Lutheran Gen. Hosp, 512 N.E.2d 691, 706 (111. 1987) (same); Smith v. Cote, 513 A.2d 341, 348 (N.H. 1986) (holding New Hampshire recognizes cause of action for wrongful birth of child with congenital defects); Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 493-94 (Wash. 1983) (en banc) (holding parents may bring a wrongful birth claim for their "children suffering congenital defects"). In contrast, other states have held that there is no cause of action for a wrongful birth claim or have lessened the scope of the claim. See Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d. 557, 563 (Ga. 1990) (holding Georgia has no wrongful birth claim); Grubbs v. Barbourville Family Health Ctr, P.S.C, 120 S.W.3d. 682, 689 (Ky. 2003) ("[W]e are unwilling to equate the loss of an abortion opportunity resulting in a genetically or congenitally impaired human life ... with a cognizable legal injury."); Taylor v. Kurapati, 600 N.W.2d. 670, 691 (Mich. Ct. App. 1999) (abolishing wrongful birth claims unless they involve intentional or grossly negligent acts or omissions); Azzolino v. Dingfelder, 337 S.E.2d 528, 532 (N.C. 1985) (holding that life, "even life with severe defects, [does not] amount to a legal injury"); Willis v. Wu, 607 S.E.2d. 63, 71 (S.C. 2004) (same).

(2) See Nanke v. Napier, 346 N.W.2d 520, 523 (Iowa 1984) (holding parents could not recover for wrongful pregnancy). Nanke reasoned that parents do not have the right to sue for wrongful pregnancy based on a medical mistake that led to a "normal healthy child." Id.

(3) 896 N.W.2d 395 (Iowa 2017).

(4) See id. at 396. More specifically, the Supreme Court considered whether a physician's failure to inform parents of prenatal test results showing a congenital defect for their child that would have led them to terminate the pregnancy constituted a valid claim for wrongful birth. Id. The court reversed the district court's summary judgment in favor of the defendants and allowed the parents to sue for the wrongful birth of their severely disabled child. Id. The court reasoned that the theory for wrongful birth fit within the general tort principles for medical negligence actions. Id.

(5) See id. Pamela Plowman and Jeremy Plowman were married with two children, ages four and three before the birth of Z.P. Plowman, 896 N.W.2d at 396.

(6) See id, at 397.

(7) See id. The ultrasound found that Z.P. displayed some abnormalities. Id. Dr. Pil Kang, the radiologist that assessed Pamela Plowman's pregnancy, interpreted the results and prepared a report of the conclusions for his findings. Id at 396. Dr. John Paiva, a second radiologist that worked with Dr. Pil Kang, reviewed and signed this report. Id. The report's listed abnormalities for Z.P. included:
   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.


Plowman, 896 N.W.2d at 397.

(8) See id. at 396. Dr. Pil Kang did not report these findings but rather reported that "the head/abdominal circumference of Z.P. was 'within two standard deviations of normal,' with the head circumference/abdominal ratio being 'slightly' below normal." Id.

(9) See id. More importantly, Dr. Steffensmeier did not tell Mrs. Plowman that Dr. Pil Kang had actually found abnormalities with Z.P. and more so that Dr. John Paiva had signed off on the damning report. Id. No further testing was done to follow up on the ultrasound results as recommended in the report. Id.

(10) See Plowman, 896 N.W.2d at 396 (Z.P. had been delivered without any complications).

(11) See id. at 396. About two months after birth Mrs. and Mr. Plowman began to have concerns regarding Z.P.'s development and noticed that Z.P. would, "stare off a lot" and "stiffen up." Id. (emphasis added).

(12) See id. at 396-97 (finding Z.P.'s pediatrician recommended he be brought to Iowa for testing/treatment at four months old).

(13) See id. at 397 (arguing that head circumference as shown in the ultrasound relates to small corpus callosum).

(14) See id. at 397. Mrs. Plowman did not assert that the defendants caused the disabilities to Z.P. Plowman, 896 N.W.2d at 397. Rather she alleged the doctors negligently failed to accurately, "interpret, diagnose, monitor, respond to, and communicate the fetal abnormalities evidence in the April 25, 2011 ultrasound." Id. Due to the grossly negligent care, Mrs. Plowman gave birth to Z.P., a child with severe brain abnormalities and contended that if she had been informed of the abnormalities prior to birth she would have terminated the pregnancy. Id.

(15) See id. The defendants alleged that Mrs. and Mr. Plowman could not prove causation because Z.P.'s injuries were caused by a preexisting medical condition. Id. Defendants then filed a motion for summary judgment, arguing that Mrs. and Mr. Plowman had not asserted that the defendants' care and treatment caused Z.P.'s injuries. See id. at 397. Instead they claimed in the motion that:
   [Mrs. and Mr. Plowman] do not assert that Defendants' care and
   treatment caused [Z.P.'s] injuries. Instead, [Mrs. and Mr. Plowman]
   allege that had "Mrs. Plowman [been] informed of her unborn child's
   potential brain abnormality, Mrs. Plowman would have terminated her
   pregnancy and [Mrs. and Mr. Plowman's] injuries would have been
   avoided." This is a wrongful birth claim.


Plowman, 896 N.W.2d at 397. Defendants argued that a wrongful birth claim for medical negligence had not been recognized in Iowa and therefore Mrs. and Mr. Plowman's claim should be dismissed. Id.

(16) See id. However, the district court granted the defendants' motion for summary judgment and declined to recognize a new cause of action for wrongful birth. Id. The district court reasoned that to recognize a new cause of action for wrongful birth was more properly left to the legislature or the Supreme Court. Id.

(17) See id. at 396, 414. In furtherance of their holding, the court noted that no Iowa statute precluded such a cause of action. Plowman, 896 N.W.2d at 409. They also reasoned that Iowa public policy had favored allowing such a cause of action. Id. at 408.

(18) See Roe v. Wade, 410 U.S. 113, 120 (1973). An unmarried pregnant woman who wished to terminate her pregnancy by abortion sought declarator)' judgment that the Texas criminal abortion statutes were unconstitutional. Id. The Supreme Court held that the right to privacy encompasses a woman's decision on whether to terminate her pregnancy. Id.; see Rebecca Lung, Is Wrongful Birth' Malpractice?, CBS NEWS (June 19, 2003), https://www.cbsnews.com/news/iswrongful-birth-malpractice/ (highlighting parents suing for the right to know whether their fetus will be disabled); see also Joy Freeman, I'd Always Thought I Would Eight for My Child No Matter What. But 1 Didn't, Guardian (Feb. 15, 2016), https://www.theguardian.com/lifeandstyle/2016/feb/15/late-abortion-severely-disabled-babytermination (discussing a difficult decision to terminate pregnancy because child would be severely disabled). The controversy surrounding wrongful birth and wrongful life litigation has existed for many years, which has resulted in courts simultaneously rejecting wrongful life actions and approving wrongful birth actions. See Alan B. Handler, Individual Worth, 17 HOFSTRA L. REV. 493,495-500 (1989) (noting that all jurisdictions faced with wrongful birth claims struggle with its legal and moral issues); Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983) (highlighting that costs of childcare for disabled children does not ameliorate with time); see generally Taylor v. Kurapati, 600 N.W.2d 670, 681 (Mich. App. 1999) (recognizing the significant financial burden of raising a child); Mark Lino, The Cost of Raising a Child, U.S. DEP'T AGRIC. (Jan. 13, 2017), https://www.usda.gov/media/blog/2017/01/13/cost-raising-child (showing that choosing to have a family creates a financial burden).

(19) See Nanke v. Napier, 346 N.W.2d 520, 521 (Iowa 1984) (showing those three claims are remedies parents can pursue); Plowman, 896 N.W.2d at 398 (citing Viccaro v. Mulinsky, 551 N.B.2d 8, 9 (1990)) (exemplifying where a couple relied on a doctor's diagnosis that was proven incorrect). The harm if any, is not the birth itself but the effect of the defendant's negligence on the parents' physical emotional, and financial well-being resulting from the denial to the parents or their right, as the case may be, to decide where to bear a child or whether to bear a child with a genetic or other defect. Id.

(20) See Nanke, 346 N.W.2d at 522-23. In Nanke, the court determined that one could not recover for costs associated with raising a "normal, healthy child" after a negligently performed abortion, as the invaluable benefits of parenthood outweigh the mere monetary burdens. Id.

(21) See Custodio v. Bauer, 251 Cal. Ct. App. 2d 303 (1967); see also Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 HARV. C.R.-C.L. L. REV. 141, 164-68 (2005) (discussing the dichotomy between wrongful-life and wrongful-birth claims). Wrongful life claims were rejected in Cleitman v. Cosgrove as the court concluded that it was logically impossible to measure the difference between the child's life with defects against the alternative of nonexistence. See Hensel, supra, at 155-56 (citing Gleitman v. Cosgrove, 227 A.2d 689, 692 (N.J. 1967)). "The reasoning courts employed in evaluating whether an 'injury' had occurred in such circumstances provides unique insight into subsequent cases focusing on children with disabilities." Id. at 151. The earliest claims of "'wrongful conception' or 'wrongful pregnancy,' were brought by parents against either physician who had performed negligent sterilization procedures or abortions, or manufacturers who had developed faulty contraceptive products." Id. "[T]he defendant's negligence resulted in the birth of a healthy child despite the parents' clearly expressed desire to avoid conception." Id.

(22) See ME. REV. STAT. ANN. tit. 24, [section] 2931 (2018) (providing claims brought under wrongful birth and wrongful life in Maine); see also Plowman, 896 N.W.2d at 409 (concluding that Iowa has not barred wrongful-birth claims by statute). Twelve states have enacted legislation barring wrongful birth claims. See ARIZ. REV. STAT. [section] 12-719 (2018); IDAHO CODE [section] 5-334 (West 2018); KAN. STAT. ANN. [section] 60-1906 (2018); Mich. Comp. Laws [section] 600.2971 (2018); MINN. STAT. [section] 145.424 (2018); MO. REV. STAT. [section] 188.130 (2018); MONT. CODE ANN. [section] 27-1-747 (2018); OHIO REV. CODE ANN. [section] 2305.116 (West 2018); OKLA. STAT. tit. 63, [section] 1-741.12 (2018); 42 PA. CONS. STAT. Ann. [section] 8305 (2018); s.D. Codified Laws [section] 21-55-2 (2018); UTAH CODE ANN. [section] 78B-3-109 (2018). Idaho, Kansas, and Pennsylvania permitted claims of wrongful birth by judicial decisions before being superseded by statute. See Blake v. Cruz, 698 P.2d 315, 321 (Idaho 1984), superseded by statute, IDAHO CODE [section] 5-334 (West 2018); Arche v. United States, 798 P.2d 477, 480 (Kan. 1990), superseded by statute, KAN. STAT. ANN. [section] 60-1906 (2018); Speck v. Finegold, 439 A.2d 110, 122 (Pa. 1981), superseded by statute, 42 PA. CONS. STAT. ANN. [section] 8305 (2018). Three state supreme courts have refused to allow wrongful birth claims. See, e.g., Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d. 560, 563 (Ga. 1990) (denying wrongful-birth claims as the issue is more properly suited for legislative action); Grubbs v. Barbourville Family Health Ctr, P.S.C, 120 S.W.3d. 682, 689 (Ky. 2003) (prohibiting wrongful birth claims as not a "cognizable legal injury"); Azzolino v. Dingfelder, 337 S.E.2d 528, 532 (N.C. 1985) (holding no legal injury even if life with severe defects). The Atlanta, Grubbs, and Azzolino courts' rationales, used both to award and deny recovery for "normal" children, stands in contrast to those articulated by other jurisdictions that recognize wrongful birth in the context of a child born with a genetic defect. See Atlanta Obstetrics, 398 S.E.2d at 560, 563; Grubbs, 120 S.W.3d at 689; Azzolino, 337 S.E.2d at 532.

(23) See Keel v. Banach, 624 So.2d 1022, 1024 (Ala. 1993) (describing wrongful birth action as parents avoiding or terminating pregnancy but for physician negligence). The parents of a child born with a detectable birth defect would have avoided conception or terminated the pregnancy but for the physician's negligence in failing to inform them both of the likelihood of the birth defect. See id. The injury to the parents results from the loss of opportunity to make an informed decision about whether to avoid or terminate the pregnancy. See Garrison v. Med. Ctr. of Del, Inc., 581 A.2d 288, 290 (Del. 1989). Wrongful birth claims arising out of the birth of children with disabilities was first addressed in Gleitman v. Cosgrove. See 227 A.2d at 692-93 (holding wrongful birth claims not actionable because they have no cognizable damages). The issues of wrongful birth resurfaced in Becker v. Schwartz wherein the court allowed a cause of action for wrongful births insofar as the expenses the parents have incurred and will continue to incur for the care and treatment of their infants. See 386 N.E.2d 807, 811-13 (N.Y. 1978).

(24) See Canesi v. Wilson, 730 A.2d 805, 817 (N.J. 1999) (noting there were multiple factors that indicated abnormal pregnancy, triggering need for diagnostic testing); see also Kassama v. Magat, 792 A.2d 1102, 1111-13 (Md. 2002) (noting discrepancy whether abnormality could be timely diagnosed to allow fetus abortion within state regulation). "[These] courts consistently cite rationales comparable to those of early courts, such as deterring negligence in genetic testing, preserving parental autonomy, and compensating parents of medical expenses associated with disability." See Hensel, supra note 21, at 160. Jurisdictions that have endorsed a wrongful birth cause of action "consistently cite rationales comparable to those of the early courts, such as deterring negligence in genetic testing, preserving parental autonomy, and compensating parents for the medical expenses associated with disability." Id.

(25) Dier v. Peters, 815 N.W.2d. 1, 3 (Iowa 2012) (providing standard to establish cause of action under Iowa law).

(26) See Pauscher v. Iowa Methodist Med. Ctr, 408, N.W.2d 355, 359-60 (Iowa 1987) (explaining it is impossible to exercise right to make informed decisions when withholding material information). Both types of claims arise out of the "principle that absent extenuating circumstances a patient has the right to exercise control over his or her body by making an informed decision concerning whether to submit to a particular medical procedure." Id. at 358.

(27) See Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (requiring four elements to establish prima facie case for medical malpractice); see also Bray v. Hill, 517 N.W.2d 223, 225 (Iowa Ct. App. 1994) (holding physicians liable by physician of reasonable care and skill under same circumstances standard). Courts that have declined to recognize wrongful birth claims have questioned the elements of causation and injury. Plowman, 896 N.W.2d at 402. In Becker, doctors failed to inform the defendant that women over thirty-five years old have an increased risk of giving birth to a child with Down Syndrome. Becker, 386 N.E.2d at 808. When the defendant gave birth to a child with Down Syndrome she alleged negligence on the doctors for failing to inform her of this potential risk and for failing to inform the parents of amniocentesis testing to determine earlier in the pregnancy whether the fetus Becker carried would be born with Down Syndrome. Id. at 809. The disorder is genetic and not the result of any injury negligently inflicted by the doctor as it incurable and was incurable from the moment of conception. Id. at 816. The doctor's alleged negligent failure to detect the defect during prenatal examination cannot be considered a cause of the condition. Id. Rather, the doctor's failure to inform the mother of the birth defect caused the parents to follow through with the pregnancy, resulting in the birth of the child. Id. Causation is more complex in cases in which the alleged negligence combines with a preexisting condition to cause the ultimate harm to the plaintiff. See, e.g., Greco v. United States, 893 P.2d 345, 349 (Nev. 1995). In Wilson, the Missouri Supreme Court declined to allow these claims because the right to recovery is based on the woman testifying long after the fact when it is in her financial interest to do so that she would have chosen to abort if the physician had informed her of the risks. Wilson v. Kuenzi, 751 S.W.2d 741, 745 (Mo. 1988). The Iowa Supreme Court refused to follow the Missouri Supreme Court as the proof of causation depends on the plaintiffs decision if their physician had properly informed them as the standard of proof, the standard in every informed consent case. Smith v. Cote, 513 A.2d 341, 347 (N.M. 1986).

(28) See Hensel, supra note 21, at 169. In approximately half of all jurisdictions, this duty is measured by what a physician would disclose based on customary medical practice in the community, which itself considers the incidence and severity of the impairment for which testing is offered. Id. at 160. In the other half of jurisdictions, the duty is satisfied when a reasonable patient in the plaintiff s position would find the risk material to her decision to consent. Id.; see also Canesi, 730 A.2d at 816 (describing the physicians' duty). "The physicians' duty to warn is thus limited by what risks a reasonably prudent patient in the plaintiff s position would consider material to her decision." Canesi, 730 A.2d at 816. The more limiting the impairment is deemed to be, the more likely the law will mandate disclosure. Id.

(29) See Hensel, supra note 21, at 170. Under a physician-centered standard, jurors will be bound by medical expert testimony regarding the professional scope of disclosure. Id. A patient-centered standard, gives the power to jurors to determine which defects are considered so horrible a reasonable person might choose to abort on that basis. Id. A significant portion of people worldwide favor allowing prenatal diagnosis and selective termination for conditions such as missing fingers and obesity, therefore the outcome of a jury analysis in a patient-centered standard could be heavily biased. Id. In determining the scope of professional disclosure, "a jury panel will seek to decide the issue in conflict by comparing the testimony of competing medical experts." See also Azzolino v. Dingfelder, 337 S.E.2d 528, 541 (N.C. 1985) (noting that wrongful birth permits recovery predicated on what a "reasonable person" would do); George P. Smith, II, The Vagaries of Informed Consent, 1 IND. HEALTH L. REV. 109, 119 (2004). The duty of disclosure rejects the "reasonably physician" standard and focuses on the material risks a prudent patient would want to know when making a medical decision. Canesi, 730 A.2d at 812 (citing Largey v. Rothman, 540 A.2d 504 (N.J. 1988)).

(30) See Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d. 560, 562-64 (Ga. 1990). These jurisdictions consider whether the true injury under consideration is the defective child's life and determine whether that issue should be left to the legislature to rule on. Id.; see also Azzolino, 337 S.E.2d at 532 (noting that wrongful birth and wrongful life all "arise" from the same alleged negligence). However, in some states the issue is no longer a subject for judicial determination because the "legislature have stepped in to resolve the viability of these torts." Id.

(31) See Hensel, supra note 21 (citing Pilar N. Ossorio, Prenatal Genetic Testing and the Courts, in Prenatal Testing and Disability Rights, at 308, 318). The legal system both expresses and rejects social norms. Id.

(32) See Canesi, 730 A.2d at 811. Wrongful life is controversial because it identifies the impaired child's life as the operable injury, a concept contrary to many deeply held beliefs in society. See Hensel, supra note 21, at 164. Wrongful birth seems more appealing because the injury identified is the parents' lost choice over the future of the pregnancy. Id. at 165. Wrongful birth action "is predicated on [the plaintiffs] right to determine for herself whether or not to continue or terminate her pregnancy." Id.; see also Geler v. Akawie, 818 A.2d 402, 411-12 (N.J. Super. Ct. App. Div.); Hensel, supra note 21, at 165. Wrongful birth claims make clear that the impaired child is the true injury at stake. The failure to diagnose an existing prenatal defect robs the mother of the opportunity to reflect on her option and to decide whether to carry her impaired child to term. Id.

(33) See Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992) (addressing constitutional rights for child birth). Planned Parenthood affirmed that constitutional protection extends to liberty interests "relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child." Id. at 857; see also Provenzano v. Integrated Genetics, 22 F. Supp. 2d 406, 418 (3rd Cir. 1998) (considering a termination of pregnancy). The court reasoned that "[n]o one can doubt that the decision to terminate a pregnancy is the single most personal and important moral decision that a woman can make during her lifetime." Id.

(34) Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 396 (Iowa 2017). The district court granted the defendants' motion for summary judgment. Id. They "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.'" Id. at 397.

(35) Id. The plaintiffs resisted the motion, arguing that the case fell "within the traditional elements of medical negligence." Id. at 398.

(36) Id. The court reasoned that the "resolution of issues of negligence and proximate cause turns on the reasonableness of acts and conduct of the parties under all facts and circumstances." Plowman, 896 N.W.2d at 398 (citing Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003)).

(37) Plowman, 896 N.W.2d at 400. The court explains that, "I advancements in prenatal care have resulted in an increased ability of healthcare professionals to predict and detect the presence of fetal defects." Id. (citing Smith v. Cote, 513 A.2d 341, 345 (N.H. 1986)).

(38) See Smith, 513 A.2d at 346. (Testing for genetic defects has been commonly accepted in medical practice since the mid-1970s.) "Physicians who perform testing and provide advice relevant to constitutionally guaranteed procreative choice, or whose actions could reasonably be said to give rise to a duty to provide such testing or advice, have an obligation to adhere to reasonable standards or professional performance." Id.

(39) See Plowman, 896 N.W.2d at 401 (citing Dier v. Peters, 815 N.W.2d. 1, 4 (Iowa 2012)) (discussing three factors developed in Dier to determine the right to sue in Iowa). The cognizable right to sue under Iowa law will arise applying three determinative factors: "(1) whether the action is consistent with traditional concepts of common law, (2) whether there are prevailing policy reasons against recognizing such a cause of action, and (3) whether Iowa statute speaks to this issue." Id. at 401.

(40) Plowman, 896 N.W.2d at 401-10 (detailing the court's analysis of the Dier factors and the plaintiffs facts). The court reasoned it is not the court's role to second guess intensely personal decision to terminate pregnancy. Id. at 410. They reasoned it is more accurate to view the terms of wrongful life and wrongful births as describing the result of a physician's negligence rather than as to a tort itself. Id. at 401 (citing Becker v. Schwartz 386 N.E.2d 807, 811 (N.Y. 1978)). The elements of a medical negligence action are an applicable standard of care, violation of the standard, and a relationship between the violation and injury sustained. Id. (citing Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001)). "A physician owes a duty to his patient to exercise the ordinary knowledge and skill of his or her profession in a reasonable and careful manner when undertaking the care and treatment of a patient." Id. (quoting J.A.H. ex rel. R.M.H. v. Wadle & Ass'n, P.C., 589 N.W.2d. 256, 260 (Iowa 1999)). "To establish a deviation from the standard of care, the plaintiffs need[ed] to prove that a reasonably competent physician would have observed the abnormalities from the ultrasound or other procedure and [would have] reported it to [them].". Id. at 401-02. "[The] plaintiffs [also had to show that if they] had been timely informed of the impairment, they would have chosen to terminate the pregnancy." Plowman, 896 N.W.2d at 402. The court essentially stated that the resulting injury would have deprived the plaintiffs of the opportunity to make an informed decision which ultimately caused them to incur extraordinary expenses in the care of their child with a genetic abnormality. Id. at 402 (citing Garrison v. Med. Ctr. of Del, Inc., 581 A.2d 288, 290 (Del. 1989)).

(41) See id. at 403. The Becker court concluded that the doctor's alleged negligent failure to detect the genetic defect during prenatal examination is not to be considered the cause of the condition by analogy to cases where the doctor failed to make a timely diagnosis. 386 N.E.2d at 816 (Wachtler, J., dissenting). However, Iowa courts have previously allowed a plaintiff to recover for physician's negligent failure to diagnose health problems such as breast cancer. See DeBurkarte v. Louvar, 393 N.W.2d 131, 135 (Iowa 1986). Relying on the Greco court, the Iowa Supreme Court in Plowman acknowledged that the physicians did not cause Z.P.'s birth defects, however the parents testified they would have terminated the pregnancy, and thereby would have avoided costs of Z.P.'s disability if the physicians had informed them of the ultrasound results. See Plowman, 896 N.W.2d at 402-03; see also, Greco v. United States, 893 P.2d 345, 349 (Nev. 1995) (losing the legally protected right to choose whether to abort severely disabled child).

"[T]he test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized was reasonably foreseeable and note remote in relation to the doctor's negligence; and had the plaintiff known of that risk she would have terminated the pregnancy."

Canesi v. Wilson, 730 A.2d 805, 813 (N.J. 1999).

(42) See Plowman, 896 N.W.2d at 401. The court noted that it would stigmatize the disabled community, encourage abortions, increase the cost of prenatal care, and result in fraudulent claims. Id. Plowman reasoned that by allowing for recovery of a healthy child, it would show that the parents did not want the child and that the child was of "minimal value to them to minimize the offset" when applying the benefits approach which offsets damages incurred by the benefit obtained. Id. at 405 (citing RESTATEMENT (SECOND) OF TORTS [section] 920 (AM. LAW INST. 1979). Further, Plowman refused to monetize the joy of raising a severely disabled child to offset the costs of raising him. Id. at 406. The court noted the legislature made a policy choice to help ensure a woman makes an informed decision whether to terminate or continue her pregnancy. Id. (contradicting the defendant's public policy assertion). Moreover, Plowman rejected the idea that allowing such claims would stigmatize the disabled, failing to see how recovery for extraordinary medical and educational expenses would disavow their life in any way. Id. The court declined to accept the idea that allowing such a claim would lead to an increase in abortions and cost of prenatal care, reasoning it is a physician's responsibility to provide the information necessary for the patient to make an informed decision and not to advise a patient on whether to abort. Plowman, 896 N.W.2d at 401 (citing Azzolino v. Dingfelder, 337 S.E.2d 528, 538 (N.C. 1985)).

(43) See id. at 408 (considering policy implications of wrongful-birth claims). The court stated that allowing recovery "will encourage more accurate prenatal testing" and is "consistent with a goal of tort law--to compensate an injured party with damages in order to attempt to make them whole." Id.

(44) See id. at 409. The defendants argued that there is no allegation that they caused Z.P.'s injuries and that the injury alleged is to the parents and their right to make an informed choice whether to continue or end a pregnancy, and not to the child. Id.

(45) See id. (allowing action for wrongful birth claims under Iowa law). The Supreme Court of Iowa also reasoned that "[a]llowing a cause of action furthered this legislative purpose without contravening section 613.15A or rule 1.206 ...." Plowman, 896 N.W.2d at 409.

(46) Id. at 398. In its opinion, the court stated that "[b]ecause resolution of issues of negligence and proximate cause turns on the reasonableness of the acts and conduct of the parties under all the facts and circumstances, actions for malpractice are ordinarily not susceptible of summary adjudication." Id. (citing Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003)).

(47) Smith v. Cote, 513 A.2d 341, 346 (N.H. 1986). The advancements in prenatal care coupled with a woman's right to choose whether to terminate her pregnancy has made it possible for parents today "to know, well in advance of birth, of the risk of presence of congenital defects in the fetus they have conceived; and .... to decide to terminate the pregnancy on the basis of this knowledge." Id. By allowing one specific medical group to adhere to a lower standard would create a chain of medical professionals arguing the current standard is too high. Id.

(48) Dier v. Peters, 815 N.W.2d. 1, 4 (Iowa 2012). In Dier, the court was left to determine whether one could bring a cause of action for paternity fraud as fitting within common law fraud. Id. The Dier test was properly used to determine wrongful-birth as it tests whether this new cause of action will or will not fit within a common law tort. Id. Justice Mansfield in dissenting used the Dier test to come to the opposite conclusion that wrongful birth claims should not be allowed. Plowman, 896 N.W.2d. at 415.

(49) Id. at 401. "A physician owes a duty to his patient to exercise the ordinary knowledge and skill of his or her profession in a reasonable and careful manner when undertaking the care and treatment of a patient." Id. (citing J.A.H. ex rel. R.M.II, v. Wadle & Ass'n, P.C., 589 N.W.2d. 256, 260 (Iowa 1999)). A physician will only be liable for failure to discover a risk if a physician of reasonable care and skill under the circumstances would have discovered it. See Bray v. Hill, 517 N.W.2d 223, 225 (Iowa Ct. App. 1994). The Plowmans' doctors specialized in obstetrics and gynecology for prenatal care at Fort Madison Community Hospital. Plowman, 896 N.W.2d at 396. The radiologist who performed the ultrasound interpreted the results and prepared a report in which a second radiologist signed off on. Id. at 397.

(50) Plowman, 896 N.W.2d at 402. Evidence of the applicable standard of care and its breach must be furnished by an expert. Id. (citing Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)). In Garrison, the Supreme Court of Delaware allowed parents to recover for their child born with Down Syndrome due to the doctor's timely failure to diagnose the fetus as having Down Syndrome until the plaintiff was in her third trimester therefore barring her from terminating the pregnancy. Garrison v. Med. Ctr. of Del, Inc., 581 A.2d 288, 289 (Del. 1989). The plaintiffs were not informed in a timely manner that her first test sample in determining Down Syndrome was inadequate until a few weeks later. Id. After giving another sample, the defendant's delayed the completing and reporting of the results for a few more weeks. Id. at 290. The Delaware Supreme Court ruled the resulting injury to the plaintiff parents lies in their deprived opportunity to make an informed decision to terminate the pregnancy which required them to incur extraordinary expenses that accompany raising a child affected with a genetic abnormality. Id.

(51) See Plowman, 896 N.W.2d at 402. The dissent in Becker, which allowed for wrongful-birth claims, argued that the physician "cannot be said to have caused the defect." See Becker v. Schwartz 386 N.B.2d 807, 816 (N.Y. 1978). The dissent argued the disorder is genetic and not the result of a doctor's negligence, therefore is also incurable from the moment of conception. See id. The doctor's alleged negligent failure to detect it during prenatal examination cannot be considered a cause of the condition in which the doctor failed to make a timely diagnosis. See id. However, the Court contends that the injury is not the abnormality itself, but rather the parent's right to decide based upon the knowledge of this abnormality. See Plowman, 896 N.W.2d at 402.

(52) See id. The injury of not having the ability to make an informed decision, caused the Plowman's to incur extraordinary expenses in the care and education of their child born with the genetic abnormality. See id. However, some courts declined to allow wrongful-birth claims to question elements of causation and injury because the court held the physician cannot be said to have caused the abnormality. See id.

(53) See DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1986). The court reasoned that the physician's negligent failure to diagnose, in combination with a preexisting condition, increased the risk of harm to the plaintiff who otherwise would have obtained timely treatment. See Plowman 896 N.W.2d at 402; see also DeBurkarte, 393 N.W.2d at 135 (describing defendant's failure to diagnose nexus with survival likelihood if diagnosis was found and treated).

(54) See Azzolino v. Dingfelder, 337 S.E.2d 528, 533-34 (N.C. 1985). The court is unwilling to say if life with severe defects will ever amount to a legal injury. Id. at 532, 534. Wrongful-birth claims fall out of the "traditional" tort analysis when allowing a wrongful-birth claim by holding that the existence of a human life can be considered an injury cognizable at law. Id. at 533-34. This view requires the court to view human life in an untraditional way unknown to the jurisdiction. Id.

(55) See Plowman, 896 N.W.2d at 402. "The resulting injury to the parents 'lies in their being deprived of the opportunity to make an informed decision to terminate the pregnancy, requiring them to incur extraordinary' expenses in the care and education of their child afflicted with a genetic abnormality.'" Id. (quoting Garrison, 581 A.2d at 290).

(56) Id. Both types of claims arise out of the "unquestioned principle that absent extenuating circumstances a patient has the right to exercise control over his or her body by making an informed decision ... ." Pauscher v. Iowa Methodist Med. Ctr., 408, N.W.2d 355, 358 (Iowa 1987) (citing Cowman v. Hornaday, 329 N.W.2d 422, 424-25 (Iowa 1983)). The Iowa Supreme Court was persuaded by a New Jersey Supreme Court analysis comparing informed consent and wrongful birth actions which stated that:
   [I]nformed consent and wrongful birth causes of action are similar
   in that both require the physician to disclose those medically
   accepted risks that a reasonably prudent patient in the plaintiffs
   position would deem material to her decision. What is or is not a
   medically accepted risk is informed by what the physician knows or
   ought to know of the patient's history and condition.... In both
   causes of action, the plaintiff must prove not only that a
   reasonably prudent patient in her position, if apprised of all
   material risks, would have elected a different course of treatment
   or care ... [T]he test of proximate causation is satisfied by
   showing that an undisclosed fetal risk was material to a woman in
   her position; the risk materialized, was reasonably foreseeable and
   not remote in relation to the doctor's negligence; and, had
   plaintiff known of that risk, she would have terminated her
   pregnancy.


Plowman, 896 N.W.2d at 403-04 (citing Canesi v. Wilson, 730 A.2d 805, 813 (N.J. 1999). Informed consent can be seen as contributing to a doctor acting with an applicable standard of care. See Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (citing Kennis v. Mercy Hosp. Med. Ctr, 491 N.W.2d 161, 165 (Iowa 1992)). It is not only a doctor's job to perform medical testing but also to advise patients of potential side effects of testing so that the patient may make an informed decision whether to follow through with the procedure. See Plowman, 896 N.W.2d at 402-403. Similarly, in prenatal care, informed consent is necessary for a parent to determine the best course of treatment and care. See id. at 403-04, 413. If the purpose of prenatal testing is not to inform the parent of the health and wellbeing of the child, then what would be the primary purpose of this testing? Hensel, supra note 21, at 142-43.

(57) See Greco v. United States, 893 P.2d 345, 348 (Nev. 1995). In Greco, the defendant argued that Szekeres v. Robinson, 715 P.2d 1076 (Nev. 1986), barred the plaintiffs from recovering as no distinction can be made between a mother who gives birth to a healthy child and a mother who gives birth to a child with disabilities. Id. at 348-49. Therefore, if wrongful life claims are barred, then wrongful-birth claims are also barred. See id. at 349. The Greco court disagreed, stating the birth of a severely deformed baby will not only require extraordinary expenses, but also require a greater level of mental and emotional strength of all of those involved in the caretaking of the child. Id. The plaintiff is not claiming that her child's defects were caused by the physician, but rather she claims the physician's negligence kept her ignorant of those defects and that it was the doctor's negligence which caused her to lose her right to choose whether to terminate the pregnancy. Id. The court determined that if they were to deny the plaintiff's claim they would be "groundlessly excepting one type of medical malpractice from negligent liability." Id. The Greco Court found no reason to treat this case any different than any other medical malpractice case. 893 P.2d at 349.

(58) Plowman, 896 N.W.2d at 407 (describing painful decisions parents make to pay for their children's medical care). There was nothing to indicate that Z.P. would someday understand that his parents sued over their loss of opportunity to avoid his birth. Id. Allowing wrongful birth suits would not increase the cost of prenatal care as it is not the physician's duty to advise the patient on what decision to make, but rather, to exercise due care and inform the patient of the information necessary' to make an informed decision. Id. The idea that allowing for wrongful birth claims would lead to fraudulent claims does not outweigh the policy reasons for granting such a cause of action. Id. at 408. The Missouri Supreme Court concluded that allowing the right to recover by bringing a lawsuit--solely based on the testimony of the woman and when it was in her financial interest to bring suit--showed that she would have chosen to abort if the physician had informed her of the risk of genetic abnormality. See Wilson v. Kuenzi, 751 S.W.2d 741, 746 (Mo. 1988). In every informed-consent case, the standard of proof is what the plaintiffs would have done had they been properly informed. Id.

(59) IOWA CODI; [section] 146A.1(2) (2017). As a prerequisite to an abortion, a woman must be provided information regarding options relative to pregnancy whether it be continuing pregnancy, adoption, or terminating pregnancy. Id.

(60) See Plowman, 896 N.W.2d at 409. The defendants argued that there is no allegation that they caused Z.P.'s injuries. Id. The injury here is not to the child rather it is to the parents and their right to make an informed choice. Id. IOWA CODE [section] 613.15A permits a parent to recover for the expenses resulting from the injury of a minor child. Id. at 408. In order to pursue a claim under these provisions the parents must show that the child's injury was wrongfully or negligently caused. Id. Actions brought under Iowa Rule of Civil Procedure 1.206 are not for the injury to the child but for the injury to the parent as a consequence of the injury to the child. Id. at 409. Rule 1.206 and section 613.15A do not govern wrongful-birth claims as wrongful birth claims do not recognize the injury as the child's defect but rather the parent's injury to make an informed decision. Plowman, 896 N.W.2d at 409.

(61) Id. IOWA CODE [section]146A.1 and [section]147.137 govern prerequisites for abortion and consent. Id. The parents must prove the defendant's negligence deprived them of the opportunity to lawfully terminate the pregnancy. Id. The Plowman's claims arise from the misinterpreted ultrasound during the second trimester of the pregnancy which would have allowed the mother the opportunity to terminate the pregnancy had she been informed of the birth defects at that time. Id.

(62) See Keel v. Banach, 624 So.2d 1022, 1029 (Ala. 1993) (holding parents were entitled to damages for physician's failure to discover fetal defects); Garrison v. Med. Ctr. of Del., Inc., 581 A.2d 288, 289 (Del. 1989) (holding parents can recover for doctor's failure to diagnose Down's Syndrome until fetus's third trimester); DeBurkarte v. Louvar, 393 N.W.2d 131, 140 (Iowa 1986) (holding husband entitled to recover for physician's failure to diagnose wife's breast cancer); Greco, 893

P.2d at 349 (reasoning doctor's failure to diagnose prenatal defects should be treated like any other malpractice case). In each of these cases, a medical professional was liable for inaction. See Keel, 624 So.2d 1029; Garrison, 581 A.2d at 289; Deburkarte, 393 N.W.2d at 140; Greco, 893 P.2d at 349.

(63) See Plowman, 896 N.W.2d at 407. The Iowa Supreme Court made clear that a physician will only be liable for failure to disclose in a wrongful birth claim when the failure relates to a material fact that directly relates to a party's decision on whether to continue or terminate a pregnancy. Id.

(64) See Smith v. Cote, 513 A.2d 341, 349-50 (Nil. 1986) (holding parents can recover extraordinary medical and educational expenses attributable to the child's disabilities); see also James G. v. Caserta, 332 S.E.2d 872, 882-83 (1985) (deciding parents can recover extraordinary costs during child's minority and beyond age of majority); Fassoulas v. Ramey, 450 So. 2d 822, 824 (Fla. 1984) (holding special upbringing costs such as medical and educational needs for disabled children recoverable).

(65) See Lino, supra note 18 and accompanying text.

(66) See Taylor v. Kurapati, 600 N.W.2d 670, 681 (Mich. App. 1999) (recognizing the significant financial burden of raising a child). "The cost of raising a child to majority is significant and may, in certain circumstances, impose a hardship upon the child's parents." Id. at 681; Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983) (highlighting that costs of childcare for disabled children does not ameliorate with time). "The child's need for medical care and other special costs attributable to his defect will not miraculously disappear when the child attains his majority." Id. at 495; see also Freeman, supra note 18 (discussing a difficult decision to terminate pregnancy because child would be severely disabled); supra note 64 (noting various cases that recognized the large expenses of child care for disabled children).

(67) IOWA CODI; [section] 613.15A (2007) (enabling parents to recover expenses related to disabled child); see Becker v. Schwartz 386 N.E.2d 807, 811 (N.Y. 1978) (allowing parents to recover expenses for care of disabled child); see also Hensel, supra note 21, at 160 (discussing rationales for compensating parents for medical expenses associated with their children's disabilities).

(68) See DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986) (finding physician's negligent failure to diagnose preexisting condition can cause statistically demonstrable losses); Plowman, 896 N.W.2d at 401-04 (quoting Mead v. Adrian, 670 N.W.2d, 174, 178 (Iowa 2003)). "Without altering traditional rules of negligence, we acknowledge a 'newly recognized compensable event to which those traditional rules apply.'" Id.; see Plowman 896 N.W.2d at 404 (finding medical professionals immunized from prenatal and genetic counseling liability, negating any wrongful birth claims). "There is no injury to the child; rather the injury is to the parents--specifically their right to make an informed choice whether to continue or end a pregnancy". Id. "Rule 1.206 and section 613.15A do not govern a wrongful-birth claim. We conclude the Iowa legislature has not statutorily barred wrongful-birth claims." Id.
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Author:Bastarache, Kaitlyn M.
Publication:Journal of Health & Biomedical Law
Date:Dec 22, 2018
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