“Wrongful Birth Claim” Acknowledged by Oregon Supreme Court


By Sean Lally, Staff Writer

In February, the Oregon Supreme Court affirmed an appeals court decision, effectively acknowledging the validity of a wrongful birth claim brought by two parents, while rejecting a wrongful life claim brought by the eldest son. Kerry and Scott Tomlinson gave birth to their youngest child (“M”) in 2003, and it wasn’t until seven years later (in 2010) that they received a diagnosis from the Metropolitan Pediatrics and Legacy Emanuel Hospital & Health Center in Portland. Doctors found in 2010 that M suffered from a degenerative disease known as Duchenne muscular dystrophy (DMD), which renders the patient paralyzed before finally killing them at a young age. The Tomlinsons had taken M to the Center in 2004, and they birthed a second child (“T”) in the intervening years. The parents filed wrongful birth claims, arguing that the physicians’ delayed diagnosis led to the Tomlinsons’ decision to have T, who also suffered from DMD. According to the initial complaint, had they known that M had DMD and that there was a 50 percent chance that a second male child would also have the disease, the Tomlinsons would not have elected to birth T. By the same token, T also filed a wrongful life claim, contending that the doctors’ negligence directly resulted in his being born into a life of suffering.

Initial Rulings

The trial court found in favor of the defendants, concluding that the medical professionals could not be held liable for non-patients. An appeals court reversed the initial ruling, noting that the Tomlinsons’ status as nonpatients “[does] not preclude [them] from recovering in negligence against the physician.” The same court upheld the trial court’s ruling in regard to T. According to the appeals court, T did not have sufficient evidence to show any damages directly caused by the defendants.

The High Court

When finally, the case made its way to the Oregon Supreme Court, the Justices upheld the decision put forward by the lower court, highlighting a key precedent, Zehr v. Haugen. In Zehr, the court held that birthing an infant can, in the right situation, be considered a legal injury. The court, therefore, set out to determine whether the physicians at the Metropolitan Pediatrics and Legacy Emanuel Hospital & Health Center had a legally protected obligation to the Tomlinsons. The Justices ruled that determining obligation to non-patients must be accomplished on a case-by-case basis. Given the parents’ specific claims, the Justices found that there were grounds for pursuing economic and noneconomic damages, saying that the defendants had “failed to reasonably protect the parents’ separate interests in avoiding the[ir] reproductive risks.”

Denying T’s Claims

The highest court upheld the appeals court decision regarding T, who according to the Justices, could not adequately name the injury inflicted by the defendants. Though T contended that the injury was his DMD, the Justices still felt there was no other way to interpret the claim than to say that “[T’s] very existence” was the injury in question. Moreover, the Justices could not think of a way to determine proportional compensation, even if an injury could be “adequately described.”

Lofty Questions

According to Kathryn Clarke, attorney for plaintiffs, the Justices got caught up in “unnecessary metaphysical debates […] about the value of existence versus nonexistence.” If perhaps they could have risen above these questions, they could have acknowledged “the damage—the very calculable damage—that’s been caused to this young man.”

The Dissent

So why deny damages to the child, while granting right to pursue compensation to the parents? Isn’t T the direct bearer of the injury in question? In Justice J. Walter’s dissent, he addressed these questions, arguing that a ruling in favor of one should imply a ruling in favor of the other. He also briefly outlined some of the rationale behind the court’s ruling. For instance, he quoted a 1978 case that held the following: “a legal right not to be born is alien to the public policy of this State to protect and preserve human life.” But another case, written in 1985, found that a ruling excluding a child such as T “must yield to the inherent injustice of that result.” In the end, the judiciary would appear to be split between the state’s mission to “preserve human life” and the irrationality of allowing a parent to receive damages while leaving the suffering child without legal recourse.

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