Mid-Atlantic Health Law TOPICS

Connecticut and New Jersey's highest courts have expanded the rights of patients to sue doctors whose negligence results in unwanted births.

In Burns v. Hanson, the Connecticut Supreme Court held that a mother may recover damages for her emotional distress and for the cost of raising a healthy child who was born after her doctor allegedly advised the mother that she was sterile and later failed to diagnose her pregnancy.

In Canesi v. Wilson, the Supreme Court of New Jersey ruled that a mother who ingested a progestational agent during pregnancy could sue a doctor who failed to warn her that her child might be born with a birth defect, even though the mother could not prove that the child's birth defect resulted from her ingestion of the drug.

A. Connecticut

Patricia Burns suffered from progressive multiple sclerosis. She alleged that her doctor, who knew both of her condition and that it was medically undesirable for her to become pregnant, incorrectly advised her that she was sterile as a result of radiation treatments she had received for her multiple sclerosis. Believing she was sterile, Mrs. Burns and her husband stopped using birth control, and Mrs. Burns became pregnant.

The Burns further alleged that Mrs. Burns' physician failed to diagnosis her pregnancy after an examination he conducted early in her second trimester. When Mrs. Burns' internist later discovered that she was 20 to 21 weeks pregnant, Ms. Burns declined to have an abortion and subsequently gave birth to a healthy daughter.

The Connecticut Supreme Court had previously held that a mother could recover the cost of raising a child, who was born with a minor orthopedic defect, from the doctor who negligently performed a sterilization procedure. However, the trial judge in Burns concluded that there should be no recovery to Mrs. Burns because her claim involved negligent advise about sterility and pregnancy, as opposed to a negligent sterilization procedure, and because her child was born perfectly healthy.

The Connecticut Supreme Court reversed the trial judge's decision. The appellate court concluded that such distinctions did not require a different result. It held that recovery of expenses involved in rearing an unplanned child to the age of majority should extend to cases arising from negligent advise that results in the unwanted birth of a perfectly healthy child, because in either case the birth results from negligent medical care provided by the doctor.

B. New Jersey

In Canesi v. Wilson, Melissa and Sebastian Canesi sued their physicians on behalf of their son, Brandon, who was born with bilateral limb reduction. Mrs. Canesi had taken Provera, a drug designed to induce menstruation, during the first days of her pregnancy. She also exhibited maternal indicators of an abnormal pregnancy, including spotting, the death of one of her fetal twins, and an amniocentesis that revealed excessive amniotic fluid.

Nevertheless, Mrs. Canesi's physicians failed to advise her that there was a risk that her fetus would suffer from congenital abnormalities, including limb reduction. Mrs. Canesi contended that had she known of those risks, she would have terminated her pregnancy.

At the time Mrs. Canesi was pregnant, the medical community was split concerning whether Provera caused limb reduction. However, subsequent medical research revealed that Provera neither causes nor increases the risk of limb reduction defects.

Mrs. Canesi's doctors conceded for purposes of trying to resolve the case before trial that they had an obligation to warn Mrs. Canesi of the dangers of taking Provera. The trial judge, nevertheless, determined that the Canesis should not prevail because they were unable to prove that Mrs. Canesi's taking of Provera caused Brandon's limb reduction abnormalities.

The Supreme Court of New Jersey reversed. It held that the Canesis need not prove that her physicians' negligence constituted the medical cause of Brandon's defect, so long as his birth with the defect was a material risk that was reasonably foreseeable, and the birth resulted from the failure of Mrs. Canesi's doctors to apprise her of that risk during her pregnancy. The court found that in such cases, compensation may be awarded for the mother's lost opportunity to decide for herself whether or not to terminate her pregnancy.

The court further held that the Canesis were entitled to compensation for the special medical expenses attributable to raising Brandon with his congenital impairment, and for the emotional injury they suffered that was caused by the deprivation of their option to accept or reject a parental relationship with their child. However, because they were unable to prove medical causation, the Canesis were not permitted to recover damages for the congenital impairment itself.

C. The General Rule

A cause of action for "wrongful birth" or "wrongful life" allows the recovery of damages against a doctor whose negligence results in the unwanted birth of a child. Such suits frequently arise from allegations that a mother became pregnant as a result of a physician's negligence in performing a sterilization procedure, failing to diagnose a pregnancy, or failing to inform parents that their child might be born deformed in time to permit the mother's termination of the pregnancy.

Although most jurisdictions recognize the tort of wrongful birth in some form, the circumstances under which recovery is allowed and the measure of damages vary widely.

D. Maryland

Maryland courts have not addressed the specific issues raised in Burns and Canesi. However, Maryland's highest court has allowed actions for wrongful birth. In 1984, it held that, where a negligently performed sterilization results in the birth of a healthy child, a jury may award damages for the expenses of raising the unplanned child, reduced by the value of the benefits conferred upon the parents by having the child.

Nine years later the same court held that a cause of action for wrongful birth also exists in favor of parents whose child is born with a birth defect when the doctor fails to inform the parents about an available diagnostic test that might reveal the possibility of genetic defects in the fetus. To recover damages in such a case, the parents must establish that the mother would have aborted the fetus had she been made aware of the child's deformities.

The court in that case, however, did not dispositively answer the questions of whether such parents may recover damages based upon the extraordinary expenses involved in supporting a child with birth defects, their emotional distress, or both.