A handful of states allow so-called 'wrongful birth' claims brought by parents.
COLUMBUS (AP) -- The Ohio Supreme Court is considering whether parents should be able to sue their doctors if a genetic screening misses a greatly disabling or fatal condition that would have caused the parents to seek an abortion had it been discovered.
A handful of states allow so-called "wrongful birth" claims brought by parents seeking compensation for the emotional trauma of watching a baby die shortly after birth or the financial burden of caring for a severely disabled child.
Ohio and several other states have rejected a different type of claim, called "wrongful life," in which the disabled child is the plaintiff, but Ohio's justices have never decided on wrongful birth.
Justices heard arguments Wednesday in two lawsuits.
A Kentucky couple sued a Cincinnati obstetrics practice and hospital that provided genetic counseling and told them their fetus did not have a genetic disorder the mother carried. The 8-year-old has the disorder and can't speak or crawl.
In the second case, a suburban Cleveland woman sued her doctor and a Cleveland hospital because her fetus' brain didn't develop, and her daughter died 12 days after birth. Ultrasound can detect the problem early, but doctors didn't tell the woman her ultrasound wasn't clear enough or recommend a second one.
In both cases, the mothers said they would have sought an abortion if the disorders were detected.
"Science has put us here," Justice Paul Pfeifer said. "A generation or two ago we wouldn't be dealing with these questions because there wouldn't have been the ability to know ahead of time."
Attorneys for the hospitals and doctors argue that they did not cause the conditions, so they shouldn't be liable. But Mark Smith, attorney for the Kentucky couple, said such a ruling would eliminate nearly all medical malpractice claims. He said the case is similar to a doctor missing a cancerous tumor on an X-ray.
The doctors also argue that allowing the claims would lead to a flood of lawsuits by parents dissatisfied with genetic outcomes.
Smith rejected the idea that couples would sue over minor disabilities or trivial issues such as eye color.
"Juries are smart and juries are conservative," he said. "If a lawyer is foolish enough to bring one of these cases it would be soundly rejected."
Jessica Berg, an associate professor of law and bioethics at Case Western Reserve University, said the cases draw attention to personal decisions about the beginning and end of life, and where those decisions meet the law and ethics.
"People may feel one way about the beginnings of life and a different way at the end," she said.
Smith, the attorney for Richard and Helen Schirmer, agreed with Justice Terrence O'Donnell that the lost opportunity for an abortion was the heart of their case. But James DeRoche, attorney for Lois Coleman of Shaker Heights, denied that when Justice O'Donnell asked the same question.
"The damage claim is for emotional trauma and harm and for the extraordinary cost," DeRoche said. "The outcome should have been foreseen."
Justice O'Donnell and Justice Evelyn Lundberg Stratton seemed wary of the high court setting public policy, suggesting the Legislature should decide the issue. But the attorneys for the parents pointed out that Ohio lawmakers have not acted on a lower court ruling from a decade ago that allows medical negligence claims involving prenatal screening.