Utah court upholds ban on lawsuits for "wrongful life"

But two of five justices said a claim tied to genetic counseling is really a medical malpractice case.

By Tanya Albert, amednews staff. Feb. 3, 2003.

Utah is the latest state to grapple with whether wrongful life lawsuits can go forward in court. Physicians or other health professionals there who misinterpret prenatal genetic screening tests will be protected from claims parents bring if a child is born with a genetic problem.

In a 3-2 decision, the Utah Supreme Court upheld the state's Wrongful Life Act, which prohibits someone from suing because they would have aborted a fetus if it weren't "for the act or omission of another person."

Case at a glance
Region: West

Some parents say the law discourages genetic testing and gives physicians who oppose abortion protection from lawsuits if they choose not to disclose a genetic abnormality that they believe could cause a woman to terminate her pregnancy.

But some physicians say the protection is needed because there could be broad differences in what parents consider vital information about the health of their fetus. Also, it is difficult to know how parents really would have reacted if they had the information before a child was born.

"They can say: 'But for this information we would have aborted the fetus,' " said R. Chet Loftis, general counsel for the Utah Medical Assn. "But there is no way to check that statement."

Some state courts, including those in Delaware, Kansas and Washington, have recognized a cause of action in wrongful life cases. Utah is one of at least nine states that have laws barring lawsuits for wrongful birth or wrongful life claims. Idaho, Indiana, Minnesota, Missouri, North Carolina, North Dakota, Pennsylvania and South Dakota also passed such statutes in the 1990s.

Utah's case

Marie Wood and Terry Borman sued the University of Utah Medical Center, Salt Lake City, after their baby was born with Down syndrome.

The couple sought genetic counseling because they knew the baby was at increased risk of genetic problems because of Wood's age. Tests at the medical center showed there was an 85% chance the child would be born with Down syndrome. But according to court documents, physicians told Wood and Borman "not to worry because the tests often resulted in false-positives" and led the couple to believe there was only a small chance the child would have Down syndrome.

9 states prohibit lawsuits for "wrongful birth" or "wrongful life" claims.

The baby girl was born in August 1998 and diagnosed with Down syndrome.

Wood and Borman sued, saying that physicians were negligent in performing and interpreting the tests that would have allowed them to make an informed decision about whether to go ahead with the pregnancy. They claimed they are now incurring unwanted medical and other expenses to care for the baby and that they will be unable to live ordinary lives.

They also said the Wrongful Life Act that prohibited their lawsuit from going forward was unconstitutional.

But the court ruled against them.

First, the majority of the court said the law isn't unconstitutional because Utah residents were never guaranteed the right to sue for wrongful life before the state passed a law against it in 1983.

"It is true that health care professionals are essentially insulated from certain professional malpractice claims, but the fact remains that ... the statute did not abolish an existing legal claim or remedy," the court's majority decision said.

Second, the court said the statute does not interfere with a woman's right to have an abortion.

In their suit, Wood and Borman argued that physicians could "unduly burden" women because doctors -- knowing they are immune from a lawsuit -- could withhold information that would otherwise lead women to terminate their pregnancies.

But the court said that "this possible scenario is too tenuous to hold that the statute has the effect of placing a substantial obstacle in the path of a woman who seeks an abortion."

Attorneys for Wood and Borman said they would not comment on the case because they are petitioning the Utah Supreme Court for a re-hearing.

The court was split in its decision. Chief Justice Christine M. Durham dissented in the case, arguing that the Wrongful Life Act does unconstitutionally deny Wood's and Borman's access to a court.

"Here, plaintiffs were injured in person and property," Durham wrote in her dissent.

She argued that negligence interfered with the couple's right to make an informed medical decision and that the Wrongful Life Act stopped the couple from going to the court to be compensated.

"The right to be compensated for a personal injury is a property right that requires access to the courts for enforcement," Durham wrote.

Durham went on to say, and Justice Michael J. Wilkins agreed, that a wrongful life cause of action is "nothing more than a legal remedy for medical malpractice based on negligence."

Tom Mayo, a professor at Southern Methodist University's Dedman School of Law, said courts are reluctant to entertain wrongful birth and life claims because there is a feeling that it is similar to saying that a person is better off not being born. But, he said, when parents sue over the birth of a child, it isn't quite the same thing as that child suing for wrongful life.

"It's not hard to say you owed a duty to parents who sought genetic counseling and it fell below a standard of care and because of the failure, they have a child that requires a lot of care," Mayo said. "If you get over the abortion angle, it's like a medical malpractice case."

ADDITIONAL INFORMATION:

Case at a glance

Marie Wood and Terry Borman individually and as the natural parents of Mary Lorraine Wood Borman, a minor, v. University of Utah Medical Center

Venue: Utah Supreme Court
At issue: Whether the state's Wrongful Life Act is constitutional.
Potential impact: The court ruled that the law is constitutional. The decision protects physicians from lawsuits if a prenatal genetic screening test is misinterpreted. Some parents say the law could allow physicians who oppose abortion to withhold information that might cause a woman to get an abortion.