Amended August 8, 2017 Pamela Plowman and Jeremy Plowman v. Fort Madison Community Hospital, Pil Kang, John Paiva, Davis Radiology, P.C., Leah Steffensmeier, the Women's Center, and Fort Madison Physicians and Surgeons

IN THE SUPREME COURT OF IOWA
No. 15–0974
Filed June 2, 2017
Amended August 8, 2017
PAMELA PLOWMAN and JEREMY PLOWMAN,
Appellants,
vs.
FORT MADISON COMMUNITY HOSPITAL, PIL KANG, JOHN PAIVA,
DAVIS RADIOLOGY, P.C., LEAH STEFFENSMEIER, THE WOMEN’S
CENTER, and FORT MADISON PHYSICIANS AND SURGEONS,
Appellees.
Appeal from the Iowa District Court for Lee (North) County,
John M. Wright, Judge.
Parents of severely disabled child appeal summary judgment
dismissing their wrongful-birth medical negligence action against
physicians providing prenatal care. DISTRICT COURT SUMMARY
JUDGMENT REVERSED AND CASE REMANDED.
Wayne M. Willoughby of Gershon, Willoughby, Getz & Smith, LLC,
Baltimore, Maryland, Darwin Bünger of Crowley, Bünger & Prill,
Burlington, for appellants.
Nancy J. Penner and Jennifer E. Rinden of Shuttleworth &
Ingersoll, P.L.C., Cedar Rapids, for appellees Fort Madison Community
Hospital, Leah Steffensmeier, The Women’s Center, and Fort Madison
Physicians and Surgeons.
2
Christine L. Conover and Carrie L. Thompson of Simmons, Perrine,
Moyer, Bergman, PLC, Cedar Rapids, for appellees Pil Kang, John Paiva,
and Davis Radiology, P.C.
3
WATERMAN, Justice.
This appeal presents a question of first impression under Iowa law:
whether the parents of a child born with severe disabilities may bring a
medical negligence action based on the physicians’ failure to inform them
of prenatal test results showing a congenital defect that would have led
them to terminate the pregnancy. This is known as a wrongful-birth
claim. Other jurisdictions are divided as to the parents’ right to sue,
with most states recognizing such claims. We previously held parents
have no right to sue for wrongful pregnancy based on a medical mistake
that led to the birth of a “normal, healthy child.” Nanke v. Napier, 346
N.W.2d 520, 523 (Iowa 1984).
The parents in this Iowa action allege the prenatal doctors failed to
inform them of abnormalities noted during an ultrasound. Their child
was born with severe cognitive defects and remains unable to speak or
walk at age five. The parents allege they would have chosen to terminate
the pregnancy if they had been informed of what the ultrasound allegedly
showed. They seek to recover for their ordinary and extraordinary costs
of raising the child and for their loss of income and emotional distress.
The district court granted the medical defendants’ motion for summary
judgment on the grounds that Iowa has not recognized “wrongful birth”
as a cause of action.
For the reasons explained below, we join the majority of courts to
allow parents to sue for the wrongful birth of a severely disabled child.
This theory fits within general tort principles for medical negligence
actions. We reverse the district court’s summary judgment and remand
the case to allow the parents’ wrongful-birth claims to proceed consistent
with this opinion.
4
I. Background Facts and Proceedings.
The following facts are undisputed or set forth in the light most
favorable to the plaintiffs. Pamela Plowman and Jeremy Plowman were
married with two children, ages four and three, when Pamela became
pregnant with their third child, Z.P., in late 2010. At the time, Pamela
was employed at a retirement community working as a cook’s assistant.
On January 18, 2011, Pamela began seeing Leah Steffensmeier, a
physician specializing in obstetrics and gynecology, for her prenatal care
at the Fort Madison Community Hospital (FMCH). 1
On April 25, approximately twenty-two weeks into her pregnancy,
Pamela underwent an ultrasound at FMCH to assess fetal growth.
Dr. Pil Kang, a radiologist employed by Davis Radiology, P.C., interpreted
the results and prepared a report. Dr. John Paiva, another radiologist at
that clinic, reviewed and signed the report. The report found that Z.P.
displayed head abnormalities and recommended follow-up. Specifically,
the report noted,
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.
The films of the ultrasound showed Dr. Kang took three measurements
of the head circumference. Each indicated Z.P.’s head was abnormally
small, less than the third-to-sixth percentile for his development.
Dr. Kang did not report these findings. Rather, he reported the
1Dr. Steffensmeier worked at Fort Madison Physicians and Surgeons and The
Women’s Center, located within FMCH.
5
head/abdominal circumference of Z.P. was “within two standard
deviations of normal,” with the head circumference/abdominal
circumference ratio being “slightly” below normal. On May 11, Pamela
met with Dr. Steffensmeier, who told her the ultrasound showed “[t]hat
everything was fine” with the baby’s development. Pamela was never
informed “that the radiologist had found any abnormalities, or that the
ultrasound was in any way abnormal.” No further testing was done to
follow up on the ultrasound results as recommended in the report.
On August 17, Pamela delivered Z.P., a baby boy. The delivery was
uneventful. About two months after birth, Pamela began to have
concerns about Z.P.’s development. She noticed he “had bicycle
movements, smacking of the tongue. He’d stare off a lot, he’d stiffen up.”
At four months after birth, Z.P.’s pediatrician recommended Pamela see a
specialist in Iowa City, Iowa, for Z.P.’s care. Pamela began taking Z.P. to
Iowa City for testing and treatment. Z.P. was diagnosed with small
corpus callosum, which plaintiffs contend relates to the head
circumference as shown in the ultrasound. Z.P. suffers from cerebral
palsy, microcephaly, intellectual disability, cortical visual impairment,
and seizure disorder. He requires frequent visits to numerous doctors in
Iowa City and Keokuk. Physical therapists come to his home one to two
times weekly. He is on daily medication for seizures and reflux. Doctors
have been unable to determine the exact cause of Z.P.’s disabilities. It is
unlikely Z.P. will ever walk or speak.
On July 31, 2013, Pamela filed this lawsuit against FMCH, The
Women’s Center, Fort Madison Physicians and Surgeons, Davis
Radiology, P.C., and doctors Kang, Paiva, and Steffensmeier. She does
not claim the defendants caused Z.P.’s disabilities; rather, she alleges the
doctors negligently failed to accurately interpret, diagnose, monitor,
6
respond to, and communicate the fetal abnormalities evident in the
April 25, 2011 ultrasound. As a result of this negligent care, Pamela
gave birth to Z.P., a child with severe brain abnormalities. If she had
been informed of the abnormalities prior to birth, she “would have
terminated her pregnancy.” The petition sought damages for (1) the cost
of past, present, and future extraordinary care required for Z.P. as a
result of his disabilities; (2) the cost of ordinary care raising the child;
(3) Pamela’s mental anguish; and (4) Pamela’s loss of income. Jeremy
filed a separate action, mirroring Pamela’s claims. No claim has been
made on behalf of Z.P.; rather, the parents sue for their own individual
injuries and costs attributable to Z.P.’s disabilities.
The defendants filed answers denying negligence and asserting the
petitions failed to state a claim upon which relief could be granted. The
radiologists also alleged plaintiffs could not prove causation because
Z.P.’s injuries were caused by a preexisting medical condition. The
district court consolidated the actions.
Meanwhile, Pamela and Jeremy divorced in September of 2013.
Jeremy and Pamela share physical custody of their children, including
Z.P. Pamela lives with her new fiancé in Keokuk, Iowa. Pamela quit
working so she could attend Z.P.’s medical appointments. Z.P. does not
walk or talk and is frequently sick; however, Pamela also noted that
when he is not sick, he is “really happy” and “a good baby.” Pamela
testified she “really enjoy[s] spending time with [Z.P.] and get[s] a lot of
happiness from him.”
On September 11, the defendants filed a motion for summary
judgment. The motion stated,
Plaintiffs do not assert that Defendants’ care and treatment
caused [Z.P.’s] injuries. Instead, Plaintiffs allege that had
“Mrs. Plowman [been] informed of her unborn child’s
7
potential brain abnormality, Mrs. Plowman would have
terminated her pregnancy and Plaintiff’s injuries would have
been avoided.” This is a wrongful birth claim.
Defendants argued that a cause of action for wrongful birth had not been
recognized in Iowa; therefore, plaintiffs’ claims should be dismissed.
Plaintiffs resisted the motion, arguing Iowa law did not preclude a
wrongful-birth claim.
On May 27, 2015, the district court granted the defendants’ motion
for summary judgment. The court expressly 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.” Plaintiffs
appealed, and we retained the case.
II. Standard of Review.
“We review a district court ruling granting a motion for summary
judgment for correction of errors at law.” Estate of Gray ex rel. Gray v.
Baldi, 880 N.W.2d 451, 455 (Iowa 2016) (quoting Rathje v. Mercy Hosp.,
745 N.W.2d 443, 447 (Iowa 2008)). “Summary judgment is appropriate
when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Barker v. Capotosto, 875
N.W.2d 157, 161 (Iowa 2016) (quoting Amish Connection, Inc. v. State
Farm Fire & Cas. Co., 861 N.W.2d 230, 235 (Iowa 2015)). “Summary
judgment is appropriate if the only conflict concerns the legal
consequences of undisputed facts.” Peppmeier v. Murphy, 708 N.W.2d
57, 58 (Iowa 2005) (quoting Farmers Nat’l Bank of Winfield v. Winfield
Implement Co., 702 N.W.2d 465, 466 (Iowa 2005)). “We . . . view the
record in the light most favorable to the nonmoving party and will grant
that party all reasonable inferences that can be drawn from the record.”
Baldi, 880 N.W.2d at 455 (quoting Cawthorn v. Catholic Health Initiatives
Iowa Corp., 806 N.W.2d 282, 286 (Iowa 2011)).
8
“The moving party has the burden of showing the nonexistence” of
a genuine issue of material fact. Nelson v. Lindaman, 867 N.W.2d 1, 6
(Iowa 2015). “An issue of fact is ‘material’ only when the dispute involves
facts which might affect the outcome of the suit, given the applicable
governing law.” Id. (quoting Wallace v. Des Moines Indep. Cmty. Sch. Dist.
Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008)). “An issue is ‘genuine’ if
the evidence in the record ‘is such that a reasonable jury could return a
verdict for the non-moving party.’ ” Id. (quoting Wallace, 754 N.W.2d at
857). “Speculation is not sufficient to generate a genuine issue of fact.”
Id. (quoting Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005)). We also
note,
Because 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.”
Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003) (quoting Oswald
v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990)).
III. Analysis.
The threshold question is whether Iowa law allows parents to sue
for wrongful birth. Defendants allege that the claim is a new cause of
action unsupported by Iowa law. Plaintiffs, on the other hand, allege
that this case falls within the traditional elements of medical negligence
and note a clear majority of other jurisdictions allow parents to sue
under these facts. We conclude that wrongful birth fits within common
law tort principles governing medical negligence claims, and no public
policy or statute precludes the cause of action.
A. Wrongful-Birth Jurisprudence. We begin by defining terms.
Courts categorize three distinct types of claims. Nanke, 346 N.W.2d at
9
521. “Wrongful pregnancy” is a medical negligence action “brought by
the parents of a healthy, but unplanned, child against a physician who
negligently performed a sterilization or abortion.” Id. “Wrongful birth” is
an action “brought by parents of a child born with birth defects.” Id.
“Wrongful life” is a claim “brought by the child suffering from such birth
defects.” Id. One court discussed use of the term “wrongful” as follows:
These labels are not instructive. Any “wrongfulness” lies not
in the life, the birth, the conception, or the pregnancy, but in
the negligence of the physician. 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 of their right, as the
case may be, to decide whether to bear a child or whether to
bear a child with a genetic or other defect.
Viccaro v. Milunsky, 551 N.E.2d 8, 9 n.3 (Mass. 1990); see also Wendy F.
Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions,
40 Harv. C.R.-C.L. L. Rev. 141, 164–67 (2005) (contrasting wrongful-
birth and wrongful-life actions); Mark Strasser, Yes, Virginia, There Can
Be Wrongful Life: On Consistency, Public Policy, and the Birth-Related
Torts, 4 Geo. J. Gender & L. 821, 824–28 (differentiating wrongful-
pregnancy and wrongful-birth claims) [hereinafter Strasser].
In Nanke, we addressed whether parents could recover for
wrongful pregnancy in Iowa after a failed abortion procedure led to the
birth of a healthy child. 346 N.W.2d at 521 (“[T]he factual situation
involved in this case would more accurately be depicted as a claim for
‘wrongful pregnancy.’ ”). We held the parents could not recover, noting
“a parent cannot be said to have been damaged or injured by the birth
and rearing of a normal, healthy child because the invaluable benefits of
parenthood outweigh the mere monetary burdens as a matter of law.” Id.
at 522–23. Nanke is distinguishable, as we expressly limited its holding
to deny recovery for the costs of raising a “normal, healthy” child:
10
Our ruling today is limited to the unique facts of this
case and the narrow issue presented. We hold only that the
parent of a normal, healthy child may not maintain an action
to recover the expenses of rearing that child from a physician
whose alleged negligence in performing a therapeutic
abortion permitted the birth of such child.
Id. at 523 (emphasis added). We now address the separate question of
whether parents of a child born with severe disabilities can sue for
wrongful birth.
In a wrongful-birth action, parents of a child born with a
detectable birth defect allege that they would have avoided conception or
terminated the pregnancy but for the physician’s negligent failure to
inform them of the likelihood of the birth defect. Keel v. Banach, 624
So. 2d 1022, 1024 (Ala. 1993). The injury to the parents results from the
loss of the opportunity to make an informed decision about whether to
avoid or terminate the pregnancy. Garrison v. Med. Ctr. of Del., Inc., 581
A.2d 288, 290 (Del. 1989).
A majority of states recognize wrongful-birth claims. At least
twenty-three states recognize the claim by judicial decision. 2 Me.
2See, e.g., Keel, 624 So. 2d at 1029; Turpin v. Sortini, 643 P.2d 954, 965 (Cal.
1982) (en banc); Lininger ex rel. Lininger v. Eisenbaum, 764 P.2d 1202, 1208 (Colo.
1988) (en banc); Rich v. Foye, 976 A.2d 819, 824 (Conn. Super. Ct. 2007); Garrison, 581
A.2d at 291; Haymon v. Wilkerson, 535 A.2d 880, 884–85 (D.C. 1987); Kush v. Lloyd,
616 So. 2d 415, 423–24 (Fla. 1992) (per curiam); Clark v. Children’s Mem’l Hosp., 955
N.E.2d 1065, 1072 (Ill. 2011); Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 705–
06 (Ill. 1987), overruled in part by Clark, 955 N.E.2d at 1087; Bader v. Johnson, 732
N.E.2d 1212, 1220 (Ind. 2000); Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151, 1163
(La. 1988); Reed v. Campagnolo, 630 A.2d 1145, 1152 (Md. 1993); Viccaro, 551 N.E.2d
at 11; Greco v. United States, 893 P.2d 345, 348 (Nev. 1995); Smith v. Cote, 513 A.2d
341, 348 (N.H. 1986); Schroeder v. Perkel, 432 A.2d 834, 840 (N.J. 1981); Becker v.
Schwartz, 386 N.E.2d 807, 813 (N.Y. 1978); Tomlinson v. Metro. Pediatrics, LLC, 366
P.3d 370, 386 (Or. Ct. App. 2015), review granted, 2016 WL 6693689 (June 30, 2016);
Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989); Jacobs v. Theimer, 519 S.W.2d 846,
849 (Tex. 1975); Naccash v. Burger, 290 S.E.2d 825, 830 (Va. 1982); Harbeson v. Parke-
Davis, Inc., 656 P.2d 483, 488 (Wash. 1983) (en banc); James G. v. Caserta, 332 S.E.2d
872, 882 (W. Va. 1985); Dumer v. St. Michael’s Hosp., 233 N.W.2d 372, 377 (Wis. 1975);
see also Phillips v. United States, 508 F. Supp. 544, 551 (D.S.C. 1981) (stating
South Carolina would recognize the action).
11
allows wrongful-birth claims by statute. 3 A minority of jurisdictions
decline to do so. Three state supreme courts have refused to allow
wrongful-birth claims. 4 Twelve states have enacted legislation barring
wrongful-birth claims. 5 Three of those states had allowed wrongful-birth
claims by judicial decision before the legislature barred them. 6
“Two developments help explain the trend toward judicial
acceptance of wrongful birth actions.” Smith v. Cote, 513 A.2d 341, 345
(N.H. 1986). First, advancements in prenatal care have resulted in an
“increased ability of health care professionals to predict and detect the
presence of fetal defects.” Id. This raises the importance of genetic
counseling for expecting parents. Id. Indeed, prenatal testing is
“extremely prevalent and is widely accepted,” and “will likely become
more common in the future.” Cailin Harris, Statutory Prohibitions on
Wrongful Birth Claims & Their Dangerous Effects on Parents, 34 B.C. J.L.
3Me.Rev. Stat. Ann. tit. 24, § 2931 (West, Westlaw current through ch. 1 of the
2017 Reg. Sess.).
4See,e.g., Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d 557, 563
(Ga. 1990); Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., 120 S.W.3d 682,
689 (Ky. 2003); Azzolino v. Dingfelder, 337 S.E.2d 528, 537 (N.C. 1985).
5See Ariz. Rev. Stat. Ann. § 12-719 (Westlaw current through 2016 legislation);
Idaho Code Ann. § 5-334 (West, Westlaw current through ch. 37 of 2017 1st Reg. Sess.);
Kan. Stat. Ann. § 60-1906 (West, Westlaw current through laws enacted as of Jan. 18,
2017); Mich. Comp. Laws Ann. § 600.2971 (West, Westlaw current through No. 563 of
2016 Reg. Sess.); Minn. Stat. Ann. § 145.424 (West, Westlaw current through ch. 5
2017 Reg. Sess.); Mo. Ann. Stat. § 188.130 (West, Westlaw current through 2016 Reg.
Sess.); Mont. Code Ann. § 27-1-747 (West, Westlaw current through Feb. 20, 2017);
Ohio Rev. Code Ann. § 2305.116 (West, Westlaw through 2016 Reg. Sess.); Okla. Stat.
Ann. tit. 63, § 1-741.12 (West, Westlaw current through 2016 2d Sess.); 42 Pa. Stat. &
Cons. Stat. Ann. § 8305 (West, Westlaw current through 2016 Reg. Sess.); S.D. Codified
Laws § 21-55-2 (Westlaw current through Feb. 23, 2017); Utah Code Ann. § 78B-3-109
(West, Westlaw current through 2016 4th Special Sess.).
6See Blake v. Cruz, 698 P.2d 315, 320–21 (Idaho 1984), superseded by statute,
Idaho Code Ann. § 5-334; Arche v. United States, 798 P.2d 477, 480 (Kan. 1990),
superseded by statute, Kan. Stat. Ann. § 60-1906; Speck v. Finegold, 439 A.2d 110,
113–15 (Pa. 1981), superseded by statute, 42 Pa. Stat. & Cons. Stat. Ann. § 8305.
12
& Soc. Just. 365, 370 (2014) (recognizing that the American Congress of
Obstetricians and Gynecologists recommends doctors test all pregnant
women for genetic abnormalities) [hereinafter Harris].
Second, Roe v. Wade and its progeny established as a matter of
federal constitutional law that a woman has a right to choose whether to
terminate her pregnancy free from state interference before the fetus is
viable. 410 U.S. 113, 153, 93 S. Ct. 705, 727 (1973) (“This right of
privacy . . . is broad enough to encompass a woman’s decision whether
or not to terminate her pregnancy.”); Whole Woman’s Health v.
Hellerstedt, 579 U.S. ___, ___, 136 S. Ct. 2292, 2318 (2016) (striking
down Texas laws regulating abortion clinics that imposed undue burdens
on the women’s right to choose to terminate pregnancy). As a result,
today
it is possible for prospective parents (1) to know, well in
advance of birth, of the risk or presence of congenital defects
in the fetus they have conceived; and (2) to decide to
terminate the pregnancy on the basis of this knowledge.
Cote, 513 A.2d at 346. Accordingly, courts have held physicians who
perform prenatal care and testing “have an obligation to adhere to
reasonable standards of professional performance.” Id.
B. Wrongful Birth as a Cognizable Claim Under Iowa Law.
Against this backdrop, we turn to whether Iowa law allows a cause of
action for wrongful birth. In Dier v. Peters, we addressed whether Iowa
tort law allows a cause of action for paternity fraud. 815 N.W.2d 1, 4
(Iowa 2012). We considered three factors to decide whether to recognize
the right to sue: (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 statutes
speak to the issue. Id. at 3. Because paternity fraud fit within
13
traditional notions of common law fraud and was not “contrary to a law
or policy expressed by the general assembly,” we determined the father
could maintain the claim. Id. at 13–14. We use the Dier three-factor test
to decide whether to recognize a wrongful-birth claim.
1. Whether a wrongful-birth claim is consistent with traditional
concepts of common law. From our vantage point, a wrongful-birth claim
“fit[s] comfortably within the traditional boundaries of [negligence] law.”
See id. at 7. We join the majority of other jurisdictions in concluding
wrongful-birth claims fall within existing medical negligence principles.
See, e.g., Lininger ex rel. Lininger v. Eisenbaum, 764 P.2d 1202, 1205
(Colo. 1988) (en banc) (“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.”); Becker v. Schwartz, 386 N.E.2d 807, 811 (N.Y. 1978)
(“Irrespective of the label coined, plaintiffs’ complaints sound essentially
in negligence or medical malpractice.”); Owens v. Foote, 773 S.W.2d 911,
913 (Tenn. 1989) (“[M]edical malpractice suits of this nature, brought by
parents, alleging birth defects of an infant, are not unknown in this State
and we see no reason to endeavor to fit them into some specific category
beyond a suit for ordinary negligence.”); Naccash v. Burger, 290 S.E.2d
825, 829 (Va. 1982) (“Whether a cause of action exists for the wrongs
complained of and the damages sought . . . should be determined . . .
according to traditional tort principles.”).
The traditional elements of a medical negligence action are (1) an
applicable standard of care, (2) a violation of this standard, and (3) a
causal relationship between the violation and injury sustained. 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
14
or her profession in a reasonable and careful manner when undertaking
the care and treatment of a patient.” J.A.H. ex rel. R.M.H. v. Wadle &
Assocs., P.C., 589 N.W.2d 256, 260 (Iowa 1999). This duty is based on
privity, arising from the contractual relationship between the two. Id.
Although this contractual physician–patient relationship is sufficient to
establish a duty, it is not required. Id. To establish a deviation from the
standard of care, plaintiffs need to prove that a reasonably competent
physician would have observed the abnormalities from the ultrasound or
other procedure and reported the results to the parents. “Ordinarily,
evidence of the applicable standard of care—and its breach—must be
furnished by an expert.” Oswald, 453 N.W.2d at 635. As to causation,
plaintiffs must prove if the procedure had not been performed negligently
or delayed and the parents had been timely informed of the impairment,
they would have chosen to terminate the pregnancy. Finally, 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.” Garrison,
581 A.2d at 290.
Courts declining to allow wrongful-birth claims have questioned
the elements of causation and injury. One judge who dissented from a
decision allowing a wrongful-birth claim concluded the physician “cannot
be said to have caused” the child’s genetic abnormality:
The disorder is genetic and not the result of any injury
negligently inflicted by the doctor. In addition it is incurable
and was incurable from the moment of conception. Thus the
doctor’s alleged negligent failure to detect it during prenatal
examination cannot be considered a cause of the condition
by analogy to those cases in which the doctor has failed to
make a timely diagnosis . . . .
15
Becker, 386 N.E.2d at 816 (Wachtler, J., dissenting in part). By contrast,
in traditional medical negligence actions seeking recovery for a child’s
disabling injuries, the disability was allegedly inflicted by the defendant
doctor. See, e.g., Asher v. OB-Gyn Specialists, P.C., 846 N.W.2d 492,
494–95, 503 (Iowa 2014) (affirming jury verdict awarding damages to
parents for their baby’s brachial plexis injury and broken clavicle caused
by physician’s negligence during delivery), overruled on other grounds by
Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016); Kilker
ex rel. Kilker v. Mulry, 437 N.W.2d 1, 2 (Iowa Ct. App. 1988) (reviewing
appeal in case alleging child’s brain injury was caused by doctor’s
negligence).
Yet we have previously allowed patients to sue for a physician’s
negligent failure to diagnose health problems the physician did not
cause. In DeBurkarte v. Louvar, a physician failed to timely diagnose
breast cancer. 393 N.W.2d 131, 133 (Iowa 1986). The defendant argued
there was insufficient evidence to hold that “his failure to properly
diagnose the cancer probably caused [the plaintiff’s] injuries.” Id. at 134.
Although it was undisputed that the physician did not “cause” the
plaintiff’s cancer, we allowed recovery for the plaintiff’s lost chance of
survival. Id. at 137. We reasoned that the physician’s negligent failure
to diagnose, in combination with the preexisting condition, increased the
risk of harm to the plaintiff who otherwise could have obtained timely
treatment. See id. at 135. Any other rule would “subvert[] the
deter[r]ence objectives of tort law by denying recovery for the effects of
conduct that causes statistically demonstrable losses.” Id. at 137
(quoting Joseph H. King Jr., Causation, Valuation, and Chance in
Personal Injury Torts Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J. 1353, 1377 (1981)).
16
Causation “take[s] on a markedly more complex character . . . in
those cases in which alleged negligence combines with a preexisting
condition to cause the ultimate harm to the plaintiff.” Mead v. Adrian,
670 N.W.2d 174, 182 (Iowa 2003) (Cady, J., concurring specially); see
also Greco v. United States, 893 P.2d 345, 349 (Nev. 1995) (“Even though
the physician did not cause the cancer, the physician can be held liable
for damages resulting from the patient’s decreased opportunity to fight
the cancer, and for the more extensive pain, suffering and medical
treatment the patient must undergo by reason of the negligent
diagnosis.”). Here, it is undisputed the physicians did not cause Z.P.’s
birth defects. But the parents testified they would have terminated the
pregnancy, and thereby avoided the costs of Z.P.’s disability, had the
physicians informed them of the ultrasound results.
Courts disallowing wrongful-birth claims reject the view “that the
existence of a human life can constitute an injury cognizable at law.”
Azzolino v. Dingfelder, 337 S.E.2d 528, 533–34 (N.C. 1985) (“[W]e are
unwilling to say that life, even life with severe defects, may ever amount
to a legal injury.”). We said as much in Nanke as to a healthy child. 346
N.W.2d at 523 (“That a child can be considered an injury offends
fundamental values attached to human life.” (quoting Cockrum v.
Baumgartner, 447 N.E.2d 385, 388–89 (Ill. 1983))). However, under the
wrongful-birth theory, the relevant injury is not the resulting life, but the
negligent deprivation of information important to the parents’ choice
whether to terminate a pregnancy. Courts disallowing wrongful-birth
claims “conflate[] the claimants’ injury allegation with their ultimate
claim for damages.” Grubbs ex rel. Grubbs v. Barbourville Family Health
Ctr., P.S.C., 120 S.W.3d 682, 694–95 (Ky. 2003) (Keller, J., concurring in
17
part and dissenting in part). A dissenting justice saw this “analytical
flaw” in the majority’s rejection of a wrongful-birth theory:
[W]hile both the majority and concurring opinions attempt to
frame the relevant issue . . . as whether [the child’s] life can
constitute a legal injury in the context of a prima facie case
for medical malpractice, “we need not find that ‘life, even life
with severe defects,’ constitutes a legal injury in order to
recognize the . . . claim for relief” because “[t]he resulting
injury to the plaintiff parents lies in their being deprived of
the opportunity to make an informed decision to terminate
the pregnancy[.]” . . . [A]lthough one facet of a plaintiff’s
compensable damages in such cases may consist of
extraordinary costs associated with the care and education
of a child with birth-defect-related disabilities, those
damages are available only because they are the result of a
physician’s violation of the patient’s right to make an
informed procreative decision[.]
Id. at 695 (some alterations in original) (footnote omitted) (first quoting
Lininger, 764 P.2d at 1206; and then quoting Garrison, 581 A.2d at 290).
The compensable injury in a wrongful-birth claim is the parents’
loss of the opportunity to make an informed decision to terminate the
pregnancy. This is analogous to a claim for medical negligence based on
lack of informed consent. 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). “The patient’s right to make an intelligent and
informed decision cannot be exercised when information material to that
decision is withheld.” Id. at 359–60. To make an informed decision
regarding continuation of a pregnancy, “the patient has the right to
expect the information reasonably necessary to that process will be made
available by the physician.” Id. at 360.
We are persuaded by the New Jersey Supreme Court’s analysis
comparing informed-consent and wrongful-birth actions:
18
In sum, the informed 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 plaintiff’s 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.
Canesi ex rel. Canesi v. Wilson, 730 A.2d 805, 813 (N.J. 1999); see also
Bader v. Johnson, 732 N.E.2d 1212, 1217 (Ind. 2000) (stating physician
providing prenatal care has a duty to disclose “material facts relevant to
the patient’s decision about treatment,” and while “discussion of this
duty has generally arisen in cases involving informed consent and the
doctrine of fraudulent concealment . . . , the underlying premise is still
the same” (footnotes omitted)); Reed v. Campagnolo, 630 A.2d 1145, 1149
(Md. 1993) (concluding that wrongful-birth cases “present a form of
proximate cause reasoning that is analogous to that applied in informed
consent cases”).
“[A]n action in tort for a negligently performed or delayed medical
diagnostic procedure lies within the common law of negligence . . . .”
Garrison, 581 A.2d at 291. We decline to “compound[] or complicat[e]
our medical malpractice jurisprudence by according this particular form
of professional negligence action some special status apart from
presently recognized medical malpractice.” Greco, 893 P.2d at 348.
Without altering traditional rules of negligence, we acknowledge “a newly
recognized compensable event to which those traditional rules apply.”
Mead, 670 N.W.2d at 178 (applying loss-of-chance doctrine to traditional
19
principles of proximate cause). The parents have alleged “a well-
recognized civil wrong without contorting any of the elements to conform
to [the] facts.” Dier, 815 N.W.2d at 11 (allowing paternity-fraud claim to
proceed because it met traditional elements of a fraud claim despite
presenting an atypical fact pattern). We conclude that a claim for
wrongful birth is consistent with traditional common law principles of
medical negligence, and we move on to the second Dier factor.
2. Whether there are prevailing policy reasons against recognizing
such a cause of action. Defendants contend that recognition of a
wrongful-birth action would contravene Iowa public policy. Public policy
“is not predicated on this court’s ‘generalized concepts of fairness and
justice.’ ” Id. at 12 (quoting Claude v. Guar. Nat’l Ins. Co., 679 N.W.2d
659, 663 (Iowa 2004)).
Rather, “[w]e must look to the Constitution, statutes, and
judicial decisions of [this] state, to determine [our] public
policy and that which is not prohibited by statute,
condemned by judicial decision, nor contrary to the public
morals contravenes no principle of public policy.”
Id. (alterations in original) (quoting Claude, 679 N.W.2d at 663).
In Nanke, we confronted whether the parents of a “normal, healthy
child” could recover for costs associated with raising the child after a
negligently performed abortion. 346 N.W.2d at 522–23. We concluded
they could not because “the invaluable benefits of parenthood outweigh
the mere monetary burdens as a matter of law.” Id. at 523. We stated,
The bond of affection between a child and parent, the pride
in the child’s achievement, and the comfort, counsel and
society of a child are incalculable benefits, which should not
be measured by some misplaced attempt to put a specific
dollar value on a child’s life.
Id. (quoting Beardsley v. Wierdsma, 650 P.2d 288, 293 (Wyo. 1982)). We
also highlighted the “awkwardness that would inevitably surface under
20
the application of the Restatement (Second) § 920 ‘benefits’ approach,”
which offsets damages incurred by a benefit obtained. Id. We noted
parents would have to show that they did not want the child and the
child was of minimal value to them to minimize the offset. Id. We
refused to sanction this type of argument. Id.
The defendants contend the same reasoning applies here. They
argue a contrary holding would stigmatize the disabled community,
encourage abortions, increase the cost of prenatal care, and result in
fraudulent claims. We are not persuaded those concerns warrant closing
the courthouse door to parents harmed by medical negligence.
First, we distinguish the policy concerns expressed in Nanke. In a
wrongful-birth claim, the injury is not the resulting life of a healthy child
as in Nanke, but rather is the parent’s deprivation of information
material to making an informed decision whether to terminate a
pregnancy of a child likely to be born with severe disabilities. Our
informed-consent caselaw rests on the patient’s right to exercise control
in making personal medical decisions. See Pauscher, 408 N.W.2d at 358.
Iowa Code section 147.137 (2017) codifies a presumption of informed
consent when a patient receives in writing the risks “of death, brain
damage, quadriplegia, paraplegia, the loss or loss of function of any
organ or limb, or disfiguring scars associated with such procedure.” In
Pauscher, we relied on this statute in recognizing a legislative public
policy favoring informed consent. 408 N.W.2d at 361.
The legislature also has made a policy choice to help ensure a
woman makes an informed decision whether to terminate or continue
her pregnancy. Iowa Code section 146A.1(2) states that as a prerequisite
to an abortion, a woman must be “provided information regarding the
options relative to a pregnancy, including continuing the pregnancy to
21
term and retaining parental rights following the child’s birth, continuing
the pregnancy to term and placing the child up for adoption, and
terminating the pregnancy.” (Emphasis added.); 7 see also id. § 135L.2
(establishing program for minors seeking an abortion to receive
information on decision whether to continue or terminate the pregnancy).
To make an informed decision whether to proceed with the pregnancy,
the woman must be informed of all material facts, including the
likelihood the child will be born with a severe birth defect.
Nanke relied in part on an offset rule. 346 N.W.2d at 523. Under
the Restatement (Second) of Torts,
[w]hen the defendant’s tortious conduct has caused harm to
the plaintiff . . . and in so doing has conferred a special
benefit to the interest of the plaintiff that was harmed, the
value of the benefit conferred is considered in mitigation of
damages . . . .
Restatement (Second) of Torts § 920, at 509 (Am. Law Inst. 1979). 8 We
noted in Nanke that a strict application of this rule to the ordinary costs
of raising a normal, healthy child would require the parent to prove the
child was of minimal value to them. 346 N.W.2d at 523. In contrast, the
Lininger court pointed out that in wrongful-birth cases involving a
severely disabled child,
the extraordinary financial burden the [Plaintiffs] claim to
have suffered, and will continue to suffer, is sufficiently
7Section 146A.1(1) also states that a woman must be given the opportunity to
view an ultrasound of the fetus “as part of the standard of care.” The Iowa legislature
recently revised Iowa Code section 146A.1 to provide that “[a] physician performing an
abortion shall obtain written certification from the pregnant woman of all of the
following at least seventy-two hours prior to performing an abortion:” an ultrasound
viewing, description of the unborn child, hearing the heartbeat of the unborn child, and
relevant information regarding pregnancy, adoption, and termination. S.F. 471, 87th
G.A., 1st Sess. § 1 (Iowa 2017).
8We find no such provision in the Restatement (Third) of Torts: Liability for
Physical & Emotional Harm (Am. Law Inst. 2010 & 2012).
22
unrelated to the pleasure they will derive from raising [the
disabled child] as to preclude operation of the benefit rule, at
least to the extent that it would require some offset against
those particular damages.
764 P.2d at 1207. Imagine the case of a woman carrying a healthy fetus
injured during the delivery because of a failure to diagnose a birthing
issue, such as an umbilical cord wrapped around the neck. In that
circumstance,
we would have no problem assessing damages. More
importantly we would not even consider the theory that the
joy of parenthood should offset the damages. Would anyone
in their right mind suggest that where a healthy fetus is
injured during delivery the joy of parenthood should offset
the damages? There is no more joy in an abnormal fetus
come to full term than a normal fetus permanently injured at
delivery. Both are heartbreaking conditions that demand far
more psychological and financial resources than those
blessed with normal children can imagine.
Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d 557, 565
(Ga. 1990) (Smith, P.J., dissenting). Pamela testified she “really enjoy[s]
spending time with [Z.P.] and get[s] a lot of happiness from him.” But
“that pleasure will be derived in spite of, rather than because of, [the
child’s] affliction.” Schroeder v. Perkel, 432 A.2d 834, 842 (N.J. 1981).
We decline to monetize the joy of raising a severely disabled child to
offset the costs of raising him. 9
9Other courts have reached the same conclusion that the concerns raised in
Nanke do not preclude recovery for extraordinary costs of raising a disabled child. See
Strasser, 4 Geo. J. Gender & L. at 832 (collecting cases declining to award damages for
raising a healthy child, but allowing wrongful-birth claims for extraordinary costs). For
example, the Haymon court disallowed an action for wrongful pregnancy but allowed an
action for wrongful birth. 535 A.2d at 884 (noting the rationale of a decision denying a
wrongful-pregnancy claim was “misplaced in the context of [a] wrongful birth case”
because “the claimed injury and the economic relief sought . . . are completely
distinct”). In a wrongful-birth claim, parents seek extraordinary medical expenses due
to their deprivation “of their right to make an informed decision whether to carry their
child to term.” Id. By contrast, in wrongful-pregnancy and wrongful-life cases, “the
injury was life itself.” Bader, 732 N.E.2d at 1219 (disallowing wrongful-life claim but
allowing wrongful-birth claim). The law is not equipped to weigh the value of life versus
23
Defendants argue that allowing wrongful-birth claims will
stigmatize the disabled community. That concern does not warrant
closing the courthouse door to these parents. “We fail to see how the
parents’ recovery of extraordinary medical and educational expenses, so
as to minimize the detrimental effect of the child’s impairment, is
outweighed by any speculation about stigma that he might suffer.”
Lininger, 764 P.2d at 1207; see also Turpin v. Sortini, 643 P.2d 954, 961–
62 (Cal. 1982) (en banc) (“[I]t is hard to see how an award of damages to
a severely handicapped or suffering child would ‘disavow’ the value of life
or in any way suggest that the child is not entitled to the full measure of
legal and nonlegal rights and privileges accorded to all members of
society.”). Parents make “the difficult decision to sue for wrongful birth
because they want[] to recover costs in order to ensure that their [child]
would have the best possible medical care.” Harris, 34 B.C. J.L. & Soc.
Just. at 395. For example, damages from a wrongful-birth claim were
used by one family to “pay for some of the expenses of raising their
[child], including prostheses, wheelchairs, operations, attendants, and
other healthcare needs.” Id. Defendants argue the disabled child may
later be emotionally traumatized upon learning his or her parents would
have chosen to abort. But given Z.P.’s severe cognitive disabilities, there
is nothing in the record to indicate he will someday understand his
parents sued over their lost opportunity to avoid his birth.
Defendants also contend that allowing a right to sue for wrongful
birth will increase the cost of prenatal care by encouraging physicians to
practice “defensive medicine” and that increased disclosure of risks will
_________________________
nonlife, but with appropriate expert testimony juries are capable of calculating the
extraordinary costs of raising a severely disabled child. See id.
24
lead to more abortions. We disagree that these concerns justify closing
the courthouse door.
A physician need not, indeed should not, advise a patient on
whether to abort a child. A physician’s responsibility is
simply to exercise due care to provide the information
necessary for the patient to make an informed decision. If
physicians do this, they need not fear a lawsuit if parents
bear a child of one sex rather than the other, or even a child
with congenital defects. The physician will not be liable for
the patient’s informed decision on the abortion question. To
deny . . . any remedy for a physician’s negligently
withholding information or negligently providing
misinformation so immunizes the physician as to encourage
the physician himself, in effect, to make the abortion
decision.
Azzolino, 337 S.E.2d at 538 (Exum, J., dissenting). There are limitations
on a physician’s liability for a failure to disclose, or a negligent
disclosure, already inherent in the common law negligence standard. As
in informed-consent cases, a physician will only be liable when he or she
has failed to disclose a material fact relevant to the decision to continue
or terminate the pregnancy. See Pauscher, 408 N.W.2d at 361–62
(“Materiality may be said to be the significance a reasonable person, in
what the physician knows or should know is his [or her] patient’s
position, would attach to the disclosed risk or risks in deciding whether
to submit . . . to surgery or treatment.” (alteration in original) (quoting
Wilkinson v. Vesey, 295 A.2d 676, 689 (R.I. 1972))). The applicable
standard of care represents another limitation: a physician will only be
liable for failure to discover a risk if a physician of reasonable care and
skill in good standing under like circumstances would have discovered it.
See Bray v. Hill, 517 N.W.2d 223, 226 (Iowa Ct. App. 1994) (discussing
applicable standard).
Finally, defendants argue that recognition of wrongful-birth claims
will lead to fraudulent claims. The Missouri Supreme Court declined to
25
allow lawsuits for wrongful birth, noting that “[i]n the wrongful birth
action, the right to recovery is based solely on the woman testifying, long
after the fact and when it is in her financial interest to do so, that she
would have chosen to abort if the physician had but told her” of the risk
of genetic abnormality. Wilson v. Kuenzi, 751 S.W.2d 741, 745–46 (Mo.
1988) (en banc). Although proof of causation will depend on a
“counterfactual,” or what the plaintiffs would have done if they had been
properly informed by their physicians, this is the standard of proof in
every informed-consent case. Cote, 513 A.2d at 347; see also Pauscher,
408 N.W.2d at 360 (stating one element of informed consent is proof that
“[d]isclosure of the risk would have led a reasonable patient in plaintiff’s
position to reject the medical procedure or choose a different course of
treatment”). We favor placing trust in Iowa juries and our adversary
system to root out fraudulent claims, rather than the alternative of
closing the courthouse door to victimized parents with legitimate claims.
We must consider “the public policy implications of an opposite
ruling.” Dier, 815 N.W.2d at 12. Declining to recognize a claim for
wrongful birth would “immunize those in the medical field from liability
for their performance in one particular area of medical malpractice,”
namely, prenatal care and genetic counseling. Bader, 732 N.E.2d at
1219–20 (quoting Garrison v. Foy, 486 N.E.2d 5, 8 (Ind. Ct. App. 1985)).
The defendants in this case have identified no other common law
decision apart from Nanke in which we immunize physicians from
liability for their negligence, and we decline to do so here. 10 Conversely,
10The legislature has enacted certain statutory immunities for physicians that
further other public policy goals, such as encouraging the reporting and investigation of
child abuse complaints. See, e.g., Nelson, 867 N.W.2d at 9 (“We therefore construe the
immunity provision in [Iowa Code] section 232.73 liberally to encourage
communications between physicians and DHS child abuse investigators.”).
26
recognition of wrongful-birth actions will encourage more accurate
prenatal testing. See Phillips v. United States, 508 F. Supp. 544, 551
(D.S.C. 1981). Allowing recovery is also consistent with a goal of tort
law—to compensate an injured party with damages in order to attempt to
make them whole. See Wilson v. IBP, Inc., 589 N.W.2d 729, 732 (Iowa
1999). On balance, we conclude public policy favors allowing wrongful-
birth actions. If the legislature disagrees with our decision, it is free to
enact a statute precluding wrongful-birth claims. No such statute is
currently on the books.
3. Whether Iowa statutes speak to the issue. Turning to the last
Dier factor, defendants argue Iowa should not recognize a wrongful-birth
claim because Iowa Code section 613.15A and Iowa Rule of Civil
Procedure 1.206 limit parents’ ability to recover medical expenses for a
child’s injuries. Iowa Code section 613.15A provides,
A parent or the parents of a child may recover for the
expense and actual loss of services, companionship, and
society resulting from injury to or death of a minor child and
may recover for the expense and actual loss of services,
companionship, and society resulting from the death of an
adult child.
Iowa Rule of Civil Procedure 1.206 states, “A parent or the parents, may
sue for the expense and actual loss of services, companionship and
society resulting from injury to or death of a minor child.”
Both Iowa Code section 613.15A and rule 1.206 by their plain
language apply to parents seeking to recover expenses resulting from the
“injury . . . of a minor child.” (Emphasis added.) To pursue a claim
under those provisions, a parent must establish that the child’s injury
was wrongfully or negligently caused. “Actions brought under rule
[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.” Wardlow v. City of Keokuk,
27
190 N.W.2d 439, 443 (Iowa 1971) (emphasis added); accord Jones v.
State Farm Mut. Auto. Ins. Co., 760 N.W.2d 186, 188 (Iowa 2008). “[T]he
gist of a rule [1.206] action is ‘a wrong done to the parent in consequence
of injury to his child by the actionable negligence of another.’ ” Dunn v.
Rose Way, Inc., 333 N.W.2d 830, 832 (Iowa 1983) (emphasis added)
(quoting Handeland v. Brown, 216 N.W.2d 574, 578 (Iowa 1974)).
Here, as the defendants note, “there is no allegation that
Defendants negligently caused [Z.P.’s] injuries.” 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. 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.
The Iowa legislature, however, has by statute expressed its policy
preference for medical informed-consent procedures and accurately
informing a woman regarding her options for continuing or terminating a
pregnancy. See Iowa Code § 146A.1; id. § 147.137. Allowing a cause of
action here furthers this legislative purpose without contravening section
613.15A or rule 1.206. Thus, we conclude that an action for wrongful-
birth is cognizable under Iowa law.
The parents must prove the defendant’s negligence deprived them
of the opportunity to lawfully terminate the pregnancy in Iowa. See id.
§ 707.7 (generally prohibiting abortions after the second trimester of the
pregnancy with exceptions to preserve life or health of the mother);11
11Section 707.7 provides in relevant part,
1. Any person who intentionally terminates a human pregnancy,
with the knowledge and voluntary consent of the pregnant person, after
the end of the second trimester of the pregnancy where death of the fetus
results commits feticide. Feticide is a class “C” felony.
....
28
OB/GYN Specialists of Palm Beaches, P.A. v. Mejia, 134 So. 3d 1084,
1087–88, 1091 (Fla. Dist. Ct. App. 2014) (requiring plaintiff in wrongful-
birth claim to prove she was deprived of the opportunity to lawfully
obtain an abortion within the time permitted under the forum state’s law,
regardless of the plaintiff’s ability to obtain a lawful late-term abortion in
another state). We conclude Iowa public policy would not permit
recovery for wrongful birth if the abortion in question would be illegal.12
To the contrary, the public policy codified in section 707.7 precludes
such a recovery. The Plowmans’s claims arise from the allegedly
misinterpreted ultrasound during the second trimester of Pamela’s
pregnancy with Z.P.
The right to sue for wrongful birth belongs to parents who were
denied the opportunity to make an informed choice whether to lawfully
terminate a pregnancy in Iowa. It is not this court’s role to second-guess
that intensely personal and difficult decision. Parents of children with
disabilities may find their lives enriched by the challenges and joys they
_________________________
4. This section shall not apply to the termination of a human
pregnancy performed by a physician licensed in this state to practice
medicine or surgery or osteopathic medicine or surgery when in the best
clinical judgment of the physician the termination is performed to
preserve the life or health of the pregnant person or of the fetus and
every reasonable medical effort not inconsistent with preserving the life
of the pregnant person is made to preserve the life of a viable fetus.
Iowa Code § 707.7(1), (4).
12The Iowa legislature recently enacted chapter 146B, which prohibits abortions
after twenty weeks of fetal gestation other than cases of medical emergency. S.F. 471,
87th G.A., 1st Sess. § 3 (Iowa 2017) (to be codified at Iowa Code § 146B.2(2)(a)).
Nevertheless, the legislature clarified that the Act “shall not be interpreted to . . .
prohibit abortion prior to an unborn child reaching a postfertilization age of twenty
weeks.” Id. § 5. The legislation also allows a woman to maintain an action for actual
damages against a physician who performs an abortion in violation of this chapter. Id.
§ 4 (to be codified at Iowa Code § 146B.3). The legislation was not made retroactive.
See Iowa Code § 4.5 (“A statute is presumed to be prospective in its operation unless
expressly made retrospective.”).
29
confront daily. But under our tort law, financial compensation should be
paid by the negligent physician if liability is proven.
C. The Father’s Wrongful-Birth Claim. Jeremy, as the father of
a profoundly disabled child, may be obligated to pay for his share of the
child’s care for the rest of his life. See Iowa Code § 252A.3(3) (outlining
dependent support obligations). Defendants nevertheless contend that
Jeremy cannot bring a claim for wrongful birth because he had no
physician–patient relationship with them. Pamela testified Jeremy may
have attended “some” prenatal appointments with her, but the record
does not disclose whether Jeremy attended her obstetrical ultrasound or
to what extent Jeremy relied on what Pamela was told by the defendants.
Jeremy does not claim that he personally had a physician–patient
relationship with any defendant.
Courts are divided as to whether physicians providing prenatal
care owe a duty that extends to the father. Most courts specifically
addressing the question have allowed the father’s wrongful-birth claim to
proceed. See Khadim v. Lab. Corp. of Am., 838 F. Supp. 2d 448, 459–60
(W.D. Va. 2011) (applying Virginia law and ruling that genetic testing lab
owed duty to both parents); Keel, 624 So. 2d at 1030 (reinstating
wrongful-birth claims of both parents and noting that defendants, by
failing to inform mother of possibility of congenital birth defects, “directly
deprived her and derivatively, her husband,” of the option to abort);
Andalon v. Superior Ct., 208 Cal. Rptr. 899, 905 (Ct. App. 1984) (holding
the father “is manifestly a direct beneficiary of tort-duty imposed by
virtue of [his wife’s] doctor-patient relationship” with physician who failed
to detect their child’s Down syndrome); Rich v. Foye, 976 A.2d 819, 830
(Conn. Super. Ct. 2007) (rejecting defendants’ argument they owed no
duty to father on wrongful-birth claims arising from interpretation of
30
fetal ultrasound); Chamberland v. Physicians for Women’s Health, LLC,
No. CV010164040S, 2006 WL 437553, at *7 (Conn. Super. Ct. Feb. 6,
2006) (“The court also notes that most of the wrongful birth cases from
other jurisdictions cited by both parties make no distinction between the
duty owed to the mother and the father.”); DiNatale v. Lieberman, 409
So. 2d 512, 513 (Fla. Dist. Ct. App. 1982) (noting the father “shares the
legal obligation to provide for the child’s care and support [and his] right
is not dependent upon the mother’s cause of action but is his
individually”); Lab. Corp. of Am. v. Hood, 911 A.2d 841, 852 (Md. 2006)
(answering certified question that genetic testing lab possibly owed duty
to father dependent on fact-finding); Geler v. Akawie, 818 A.2d 402, 414
(N.J. Super. Ct. App. Div. 2003) (requiring retrial of wrongful-birth claims
by both parents arising from negligent genetic counseling); Estate of
Amos v. Vanderbilt Univ., 62 S.W.3d 133, 138 (Tenn. 2001) (reinstating
father’s jury award in wrongful-birth action for negligent transmission of
HIV virus to mother leading to death of their child exposed in utero). But
see Breyne v. Potter, 574 S.E.2d 916, 921 (Ga. Ct. App. 2002) (holding
physician who misdiagnosed Down syndrome leading to abortion owed
no duty to unmarried father who was not his patient); Molloy v. Meier,
660 N.W.2d 444, 453 (Minn. Ct. App. 2003) (holding physician’s duty of
care did not extend to patient’s husband who was not the biological
father and never attended her prenatal appointments); Broadnax v.
Gonzales, 809 N.E.2d 645, 649 n.3 (N.Y. 2004) (“The treating physician
owes no duty of care to the expectant father.”); Krishnan v. Sepulveda,
916 S.W.2d 478, 482 (Tex. 1995) (holding physician owed duty only to
expectant mother, not the father); Fruiterman v. Granata, 668 S.E.2d
127, 135–36 (Va. 2008) (holding father’s wrongful-birth claim failed
because the defendant’s prenatal services were provided to the mother
31
alone, not to the plaintiffs “as a couple”). Other courts allow the
“parents” to bring claims for wrongful-birth without separately analyzing
the father’s right to recover. 13
Although we have never addressed whether a physician providing
prenatal care to the expectant mother owes a duty to the child’s father,
we have addressed the duty of physicians to third parties in other
contexts. “It is hornbook law that in any tort case the threshold question
is whether the defendant owed a legal duty to the plaintiff.” J.A.H., 589
N.W.2d at 258. “A legal duty ‘is defined by the relationship between
individuals; it is a legal obligation imposed upon one individual for the
benefit of another person or particularized class of persons.’ ” Id.
(quoting Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990)).
“Whether, under a given set of facts, such a duty exists is a question of
law.” Id. (quoting Leonard v. State, 491 N.W.2d 508, 509 (Iowa 1992)).
We generally look to three factors to determine whether a physician owed
a duty to a nonpatient: “(1) the relationship between the parties,
(2) reasonable foreseeability of harm to the person who is injured, and
13See, e.g., Lininger, 764 P.2d at 1207 (“[T]he Liningers may prove and recover
those extraordinary medical and education expenses occasioned by Pierce’s
blindness.”); Garrison, 581 A.2d at 292 (“If the health care provider deprives the parents
of the ability to choose not to carry an unwell fetus to term, the provider may be held
liable for the resulting extraordinary expenses of the parents for child care.” (Emphasis
added.)); Siemieniec, 512 N.E.2d at 705 (agreeing with the majority of courts “that an
action for the wrongful birth of a genetically or congenitally defective child may be
maintained by the parents of such child” (emphasis added)); Viccaro, 551 N.E.2d at 11
(“We agree with the general rule that the Viccaros are entitled to recover the
extraordinary medical and educational expenses and other extraordinary costs
associated with caring for Adam.”); Cote, 513 A.2d at 351 (“We already have held that a
wrongful birth defendant is liable for the pecuniary losses incurred by the parents.”
(Emphasis added.)); Harbeson, 656 P.2d at 488 (“The parents’ right to prevent a
defective child and correlative duty flowing from that right is the heart of the wrongful
birth action.” (Emphasis added.)); Caserta, 332 S.E.2d at 882 (“[P]arents may in a
wrongful birth action recover the extraordinary costs for rearing a child with birth
defects . . . .” (Emphasis added.)).
32
(3) public policy considerations.” Id. We now review how we have
applied these factors to date and their application to wrongful-birth
cases.
In Leonard, a state mental hospital discharged a patient, Henry
Parrish, to outpatient care after treating him for bipolar disorder. 491
N.W.2d at 510. Shortly after his release, Parrish returned to work and
severely beat a coworker, John Leonard, without provocation. Id.
Leonard sued the state. Id. Leonard did not know Parrish before his
commitment and discharge, and Parrish’s psychiatrist had never heard
Parrish make any threats against Leonard. Id. at 511. We held as a
matter of law the treating psychiatrist owed no duty to Leonard as a
member of the general public. Id. at 512. We concluded the “risks to the
general public posed by the negligent release of dangerous mental
patients would be far outweighed by the disservice to the general public if
treating physicians were subject to civil liability for discharge decisions.”
Id. We worried that “the treating physicians would indulge every
presumption in favor of further restraint, out of fear of being sued.” Id.
(quoting Sherrill v. Wilson, 653 N.W.2d 661, 664 (Mo. 1983) (en banc)).
Similarly, in Schmidt v. Mahoney, we held a physician owed no
duty to a motorist injured by his patient. 659 N.W.2d 552, 555 (Iowa
2003). Dr. Mahoney treated a woman for a seizure disorder, but failed to
warn her not to drive. Id. at 553. She suffered a seizure and lost control
of her vehicle, colliding with Schmidt’s car. Id. Schmidt sued the doctor
for negligence. Id. We affirmed the district court’s ruling granting the
doctor’s motion to dismiss. Id. at 556. As in Leonard, we declined on
public policy grounds to extend the physician’s duty to members of the
general public, fearing the resulting liability would adversely impact the
33
physician–patient relationship through overly restrictive
recommendations. Id. at 555.
Leonard and Schmidt are distinguishable. Jeremy is not suing as a
member of the general public, but rather, as the patient’s husband at the
time of the prenatal care and birth and as the father of their child. This
ameliorates the concern for open-ended liability. See Hood, 911 A.2d at
852 (noting father’s wrongful-birth claim “would not risk an extension [of
tort duty] to ‘an indeterminate class of people’ . . . but only to the father
of the child who would be responsible for the child’s support”). Thus, we
turn to our duty precedent in which the plaintiff had a close familial
relationship with the medical defendant’s patient.
In J.A.H., we addressed a physician’s duty to a son for negligent
treatment of his mother by her therapist. 589 N.W.2d at 257. The son
alleged the therapist’s treatment caused his mother to develop false
memories, damaging their parent–child relationship. Id. We observed
that in medical negligence actions, a physician’s duty to the patient
arises from their contractual relationship. Id. at 260. But we observed
that we had previously relaxed the privity requirement in professional
negligence actions, especially for negligent medical care, and stated “lack
of privity is not necessarily determinative on the question of duty.” Id. at
260–61. We recognized it was foreseeable that the son would be harmed
by “the fallout of the negligent mental health care to his mother,” yet we
did not base our decision on foreseeability. Id. at 261–62. Rather, we
determined once again that public policy considerations precluded
imposing a duty on therapists to nonpatient family members. Id. at 263.
We noted the “problem of divided loyalties and the need to protect
confidentiality.” Id. Specifically, we stated that “[p]reserving
confidentiality in a mental health setting is probably more important
34
than in any other type of medical setting.” Id. We echoed concerns that
a therapist might alter treatment to the patient’s detriment to avoid
liability to third parties. Id.
Those public policy concerns are not present in a wrongful-birth
action. We do not see that the mother’s prenatal care would be
compromised, or patient confidentiality threatened, if physicians could
be civilly liable for negligence to both the expectant mother and father.
To the contrary, physicians providing prenatal care would have a greater
incentive to improve fetal testing and disclosure to both parents if their
liability for negligence extended to the father as well as the mother.
We find particularly compelling the father’s joint legal obligation to
support a disabled child. The physician–patient relationship is with the
mother, not the father, but doctors providing prenatal care can easily
foresee harm to both parents who must raise a profoundly disabled child.
Indeed, physicians who negligently injure a baby during delivery are
already liable in tort to both parents. See Asher, 846 N.W.2d at 499
(concluding that physician’s scope of liability for birth injury was
established as a matter of law and affirming judgment on jury verdict
awarding damages to both parents and child).
Fathers also have a voice in reproductive decisions, although the
ultimate decision to terminate a pregnancy belongs to the mother.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 898, 112 S. Ct.
2791, 2831 (1992). The plaintiffs in this case were married at the time of
the prenatal care and birth, and it is undisputed that Jeremy is Z.P.’s
father, with legal obligations to support his child. A husband has a
“deep and proper concern and interest . . . in his wife’s pregnancy and in
the growth and development of the fetus she is carrying.” Id. at 895, 112
S. Ct. at 2830 (alteration in original) (quoting Planned Parenthood of
35
Cent. Mo. v. Danforth, 428 U.S. 52, 69, 96 S. Ct. 2831, 2841 (1976)).
Maryland’s highest court expressly rejected the argument that the
woman’s sole right to choose to abort precluded recognizing her
husband’s right to sue for wrongful birth. Hood, 911 A.2d at 851 (noting
that the plaintiffs, like many other married couples, would “jointly”
decide whether to terminate a pregnancy); see also Andalon, 208
Cal. Rptr. at 905 (noting husband-father’s injury “flows from his role as a
participant in the reproductive life of the marital couple and its lawful
choices [and noting t]he burdens of parental responsibility fall directly on
his shoulders” (footnote omitted)). Although the father has no legal right
to compel or prevent an abortion, he does have an interest in
participating in decisions regarding family planning. 14
For these reasons, we hold that a father-husband such as Jeremy
may bring a wrongful-birth claim under Iowa law, notwithstanding his
lack of a physician–patient relationship with the defendants.
D. Recoverable Damages in This Wrongful-Birth Action to Be
Determined on Remand. The Plowmans seek damages for (1) their cost
of ordinary care raising the child; (2) their cost of extraordinary care
required for Z.P.’s life as a result of his disabilities; (3) their own pain,
suffering, and mental anguish; and (4) their loss of income. They are not
claiming any damages for loss of their child’s consortium or services or
for Pamela’s labor and delivery of Z.P.
Because the district court granted defendants’ motion for summary
judgment on liability, it did not decide which damage claims can be
submitted to the jury. A supreme court is “a court of review, not of first
14The Iowa legislature has also allowed a father of a fetus upon whom a partial-
birth abortion is performed to sue the physician. See Iowa Code § 707.8A(4)(a).
36
view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7, 125 S. Ct. 2113, 2120
n.7 (2005). The defendants did not file motions for partial summary
judgment on particular elements of damages. On this sparse appellate
record, we decline to decide what damages are recoverable. On remand,
the district court must determine which types of damages may be
submitted to the jury under the factual record made by the parties.
IV. Disposition.
We reverse the district court’s summary judgment and remand the
case for further proceedings consistent with this opinion.
DISTRICT COURT SUMMARY JUDGMENT REVERSED AND
CASE REMANDED.
All justices concur except Cady, C.J., who concurs specially, and
Mansfield, J., who dissents.
37
#15–0974, Plowman v. Ft. Madison Cmty. Hosp.
CADY, Chief Justice (concurring specially).
I concur in the opinion of the court. The claim described in the
case fits within the existing framework of a medical malpractice tort, and
the alleged wrongful conduct gives rise to damages. However, the
damages recoverable under the tort must not hinge on the distinction
between a child perceived as “normal” and a child perceived as
“disabled.” Such a distinction can be illusory and only risks
unwarranted stereotypes and undeserved assumptions based on bias.
See Anne Bloom, The Radiating Effects of Torts, 62 DePaul L. Rev. 229,
242 (2013); Wendy F. Hensel, The Disabling Impact of Wrongful Birth and
Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 144 (2005). Such a
distinction must be discontinued.
In Nanke v. Napier, we held a parent could not recover damages for
a negligently performed abortion that resulted in the birth of a “normal,
healthy child” because the benefits of parenthood exceeded the financial
burdens associated with parenthood. 346 N.W.2d 520, 522 (Iowa 1984).
In this case, we identify the injury claimed in Nanke as the birth of a
healthy child when seeking to distinguish the injury here as the
deprivation of a parent’s ability to make an informed decision to
terminate pregnancy. In truth, the injury in both cases is the same. In
both cases, parents are deprived of the outcome of the decision they
either made or would have made if given the opportunity. Thus, the real
distinction between Nanke and this case is the perception that the child
in Nanke was born normal and the child in this case was born disabled.
See Anne Bloom & Paul Steven Miller, Blindsight: How We See
Disabilities in Tort Litigation, 86 Wash. L. Rev. 709, 719–20 (2011). This
means these cases instruct that damages are recoverable under this tort
38
only when the child is disabled. This holding implies that while the
benefits of parenting “normal, healthy” children can outweigh the costs,
the benefits of parenting a disabled child will not.
Society would be better served if we proceed forward with this tort
by abandoning the inclination to distinguish people as either normal or
disabled. See Richard K. Scotch, Models of Disability and the Americans
with Disabilities Act, 21 Berkeley J. Emp. & Lab. L. 213, 214–15 (2000).
Instead, damages under the tort should be recoverable when the extra
financial burden of raising the child would be substantial enough to
support a decision to terminate a pregnancy under prevailing community
and medical standards. This standard does not impinge on the
individual constitutional right to an abortion; it only permits damages
associated with the decision when the extra expenses of parenthood
would reasonably support the termination of a pregnancy. In this way,
the reasonableness of the decision to terminate pregnancy will not hinge
on identifying the child as disabled, but on the extra expenses associated
with parenting the child. Those expenses describe the essence of the
damages. Our law should in every instance seek to remove assumptions
based on perceived differences in people.
39
#15–0974, Plowman v. Ft. Madison Cmty. Hosp.
MANSFIELD, Justice (dissenting).
I respectfully dissent because I cannot agree that we should create
a cause of action for “wrongful birth.”
Nothing compels us to establish a wrongful-birth cause of action.
As plaintiffs’ very able counsel conceded at oral argument, Roe v. Wade,
410 U.S. 113, 93 S. Ct. 705 (1973), does not require this result. There is
no constitutional imperative here.
In my view, the court’s decision is incorrect for three reasons.
First, this cause of action did not exist at common law and is contrary to
traditional common law concepts. Second, Iowa statutes, specifically
Iowa Rule of Civil Procedure 1.206, foreclose this cause of action. Third,
there are good public policy reasons not to recognize the claim. See Dier
v. Peters, 815 N.W.2d 1, 3 (Iowa 2012) (citing and applying these three
factors in determining whether Iowa tort law allows an action for
paternity fraud).
I. Common Law Precedents Do Not Support This Claim.
The common law does not support this cause of action. At
common law, parents could not recover for the wrongful birth of a child.
See Etkind v. Suarez, 519 S.E.2d 210, 214 (Ga. 1999); Hickman v. Grp.
Health Plan, Inc., 396 N.W.2d 10, 13 (Minn. 1986); Wood v. Univ. of Utah
Med. Ctr., 67 P.3d 436, 442 (Utah 2002). This was true even though
abortion was not illegal at common law. See Abrams v. Foshee, 3 Iowa
274, 278–80 (1856).
Furthermore, even if we were not constrained by Iowa statutes and
could tinker with the common law in this area, there are good reasons
not to do so. This is not a straight-and-simple case of medical
malpractice, as the majority suggests. In general, a medical malpractice
40
claim cannot be pursued in the absence of physical harm. See
Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 6, at
67 (Am. Law Inst. 2010) (“An actor whose negligence is a factual cause of
physical harm is subject to liability for any such harm within the scope
of liability . . . .”).
Plaintiffs do not contend that the defendants’ actions caused
physical harm to Z—but rather that Z’s birth as a severely disabled child
has caused them economic and emotional harm. In the plaintiffs’ words,
A baby such as Z.P. is not the injury. The injury is
that the parents were denied the right to make a deeply
personal but informed decision whether to give birth to a
potentially severely brain damaged child and willingly incur
the foreseeable economic and emotional costs associated
with caring for such a child.
I do not minimize the financial and personal burdens on the Plowmans of
raising a severely disabled child. But this is not a typical medical
malpractice claim.
It is true we have allowed medical malpractice claims to be
pursued in the absence of physical injury when a breach of duty will
“inevitably” result in mental anguish, pain and suffering. See Oswald v.
LeGrand, 453 N.W.2d 634, 639–40 (Iowa 1990) (limiting the holding to “a
combination of the two factors existing here: extremely rude behavior or
crass insensitivity coupled with an unusual vulnerability on the part of
the person receiving professional services”); see also Restatement (Third)
of Torts: Liab. for Physical & Emotional Harm § 47(b) & cmt. f, at 175,
179 (Am. Law Inst. 2012) (allowing recovery for serious emotional harm
in the context of “specified categories of activities, undertakings, or
relationships in which negligent conduct is especially likely to cause
serious emotional harm” while noting that “the mere fact that serious
emotional harm was foreseeable under the facts of the specific case” is
41
insufficient). Yet even if one could argue for the Oswald exception here,
plaintiffs’ lawsuit has clearly traveled some distance from a traditional
medical malpractice claim.
My colleagues analogize the wrongful-birth claim to a failure-to-
diagnose or a failure-to-provide-informed-consent cause of action. These
off-base comparisons do not advance the majority’s analysis. Under a
failure-to-diagnose claim, the physician can be sued because his or her
negligence has resulted in physical harm, or at least greater physical
harm than would otherwise have occurred. See, e.g., Murtha v. Cahalan,
745 N.W.2d 711, 716 (Iowa 2008) (“[T]he ‘injury’ is the development of
the problem into a more serious condition which poses greater danger to
the patient or which requires more extensive treatment.” (emphasis
omitted) (quoting DeBoer v. Brown, 673 P.2d 912, 914 (Ariz. 1983) (en
banc))). Similarly, the informed-consent theory permits a physician to be
sued only when inadequate disclosure of the risks of a “proposed medical
procedure” results in “injury.” See Pauscher v. Iowa Methodist Med. Ctr.,
408 N.W.2d 355, 359–60 (Iowa 1987). Here, again, the alleged breach of
duty has not caused physical harm.
II. This Claim Is Contrary to an Iowa Statute.
Furthermore, existing, longstanding Iowa legislation weighs against
the creation of the wrongful-birth cause of action and, in my view,
forecloses it. In 1860, our legislature enacted what is now Iowa Rule of
Civil Procedure 1.206. See Iowa Code § 2792 (1860); see also id. § 4187
(repealing in whole the 1851 Code of Civil Practice). The 1860 law
provided,
A father, or in case of his death or imprisonment or desertion
of his family, the mother, may prosecute as plaintiff an
action for the expenses and actual loss of service resulting
from injury or death of a minor child.
42
Iowa Code § 2792.
Other than amendments eliminating the preference for the father,
this statute has remained basically unchanged for over 150 years. 15 And
until now, we have adhered to its limits. For example, in 1926, we did
not let a father recover for the wrongful death of a thirteen-year-old son
who had been emancipated. Lipovac v. Iowa Ry. & Light Co., 202 Iowa
517, 522–23, 210 N.W. 573, 575–76 (1926). We explained that the father
“must bring himself within [the statute’s] terms in order to be entitled to
recover.” Id. at 519, 210 N.W. at 574 (recognizing that an action to
recover under the statute “cannot be extended to cases omitted from its
provisions or applied to those not fairly within its purview”). In 1971, we
held that emotional distress damages were not recoverable because the
statute was limited to “expense” and “loss of services.” See Wardlow v.
City of Keokuk, 190 N.W.2d 439, 448 (Iowa 1971) (noting that recovery is
“limited by the precise language of [the statute]”). We have also declined
to allow parents to recover damages for injury or death of an adult child,
reasoning, “The legislature has defined the remedies available for injury
to or death of a person, and thus, any recovery is limited to those
remedies provided by the legislature.” Kulish v. W. Side Unlimited Corp.,
545 N.W.2d 860, 862 (Iowa 1996); see also Kuta v. Newberg, 600 N.W.2d
280, 287 (Iowa 1999) (denying recovery of consortium damages for an
adult child under the statute even though “public policy might well
support a different rule”).
15In 1973, the legislature eliminated the paternal preference. See 1973 Iowa
Acts ch. 316, at 660. Current Iowa Rule of Civil Procedure 1.206 provides, “A parent, or
the parents, may sue for the expense and actual loss of services, companionship and
society resulting from injury to or death of a minor child.”
43
In Dunn v. Rose Way, Inc., we held that a father could recover
under this statute for the death of a viable unborn child. 333 N.W.2d
830, 833 (Iowa 1983). But we did so on the basis of close textual
analysis of rule 1.206. We explained, “A minor person is simply one who
has not yet reached majority, a category which certainly includes unborn
persons.” Id.
Thus, to date, we have respected the boundaries of rule 1.206.
Under this statute, parents cannot sue for emotional distress because
the statute is limited to recovery of expenses and loss of services.
Likewise, until the law was changed, parents could not sue for the injury
or death of an adult child under rule 1.206 because it only referenced
minor children. 16 And while parents can sue for the death of an unborn
child, this is only because we have concluded an unborn child fits within
rule 1.206’s definition of a minor child.
Rule 1.206 thus controls a parent’s right to recover for tortious
conduct affecting a minor child. See Wardlow, 190 N.W.2d at 443; see
also Dunn, 333 N.W.2d at 833 (“What is involved here is a right of
recovery given to a parent.”). And the statute limits recovery to
circumstances when there is an “injury to” or the “death of” a minor
child. No part of rule 1.206 authorizes recovery for a child’s birth.
Consistent with our prior cases, we should continue to honor the
legislative lines that rule 1.206 has drawn. Because the statute includes
16In 2007, the legislature enacted a new statute, which provided,
A parent or the parents of a child may recover for the expense
and actual loss of services, companionship, and society resulting from
injury to or death of a minor child and may recover for the expense and
actual loss of services, companionship, and society resulting from the
death of an adult child.
2007 Iowa Acts ch. 132, § 1 (codified at Iowa Code § 613.15A (2011)).
44
“injury” and “death” but not “birth,” parents may recover for an injury to
a minor child or the death of a minor child, but not for the minor child’s
birth. Otherwise, we would be rewriting the statute.
The court says that rule 1.206 does not “speak to” the wrongful-
birth cause of action because such a claim does not involve injury to the
minor child. However, by the same logic, we could just as well have said
that rule 1.206 does not “speak to” claims relating to adult children or
claims for emotional distress damages. We didn’t. Under the
interpretive canon expressio unius est exclusio alterius, the legislature’s
decision to include recovery for “injury to” or “death of” a minor child
also means it did not intend to include recovery for the birth of a child.
See Homan v. Branstad, 887 N.W.2d 153, 166 (Iowa 2016) (“It is an
established rule of statutory construction that ‘legislative intent is
expressed by omission as well as by inclusion, and the express mention
of one thing implies the exclusion of others not so mentioned.’ ” (quoting
Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995)). This rule of
construction has special force here given that a wrongful-birth cause of
action has no footing in traditional common law.
III. Public Policy Considerations Should Also Defeat This
Claim.
Finally, there are valid public policy reasons not to recognize this
claim. It goes without saying that a main source of public policy should
be the enactments of the public’s representatives, namely the legislature.
See Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 110–11 (Iowa 2011)
(discussing public policy in the context of a wrongful-discharge claim).
Unless a public policy is “clear and apparent,” “public policy is best left
to our legislative branch of government to decide as representatives of
45
the people.” Galloway v. State, 790 N.W.2d 252, 259 (Iowa 2010)
(Cady, J., dissenting).
Bowing to this approach in part, the court cites recent informed-
consent laws relating to abortion as reflective of legislative policy.
However, the last time the Iowa legislature was actually free to set policy
in this area predated Roe v. Wade. At that time the legislature made
performing an abortion illegal, except to save the life of the mother. See
Iowa Code § 701.1 (1973). 17 An honest appraisal of the legislature’s Iowa
Code section 146A.1 would find that it is intended to discourage, not
encourage, abortions. The statute sets forth prerequisites for abortion
only, not for carrying a pregnancy to term. See Iowa Code § 146A.1
(2017). It requires some creativity to read section 146A.1 as support for
the new cause of action the court establishes today. 18
17The legislature first criminalized the performance of any abortion in 1859. See
1859 Iowa Acts ch. 58, § 1 (codified at Iowa Code § 4221 (1860)). Aside from
renumbering and minor changes, the statute remained unchanged until it was
substantially amended in 1977 following Roe v. Wade. See 1976 Iowa Acts ch. 1245,
ch. 4, § 526 (repealing Iowa Code § 701.1 (1977)); id. ch. 1245, ch. 1, § 707 (enacting
Iowa Code § 707.7 (1979)).
18Section 146A.1 is entitled “Prerequisites for an abortion,” and at the time of
the alleged malpractice read as follows:
Except in the case of a medical emergency, as defined in section
135L.1, for any woman, the physician shall certify both of the following
before performing an abortion:
1. That the woman has been given the opportunity to view an
ultrasound image of the fetus as part of the standard of care.
2. That the woman has been provided information regarding
the options relative to a pregnancy, including continuing the
pregnancy to term and retaining parental rights following the
child’s birth, continuing the pregnancy to term and placing the
child for adoption, and terminating the pregnancy.
Iowa Code § 146A.1. In the 2017 session, the legislature added more prerequisites for
an abortion, including a seventy-two hour waiting period. See S.F. 471, 87th G.A., 1st
Sess. § 1 (Iowa 2017) (to be codified at Iowa Code § 146A.1(1)).
46
Also relevant from a public policy perspective are the consequences
of a particular ruling. See, e.g., Mulhern v. Catholic Health Initiatives,
799 N.W.2d 104, 121–22 (Iowa 2011). In my view, the court’s ruling
leads to a slippery slope. True, today’s decision is limited to a “severely
disabled child.” But the court does not define the term. What if testing
indicates the child will be born blind or without a hand? Is that enough?
The court’s decision also opens up the possibility for other claims.
Can a mother sue a father for not telling her that he carried a genetic
disorder, on the theory that she would otherwise have had an abortion?
Can a father sue a mother for not telling him she carried a genetic
disorder, on the theory that he would not have had unprotected sex?
Can a couple that relies on an outside sperm donor sue the source of
that donation in tort?
Or suppose a physician recommends a potentially life-saving
course of treatment for a seriously ill octogenarian whose adult children
hold medical power of attorney. The children agree to the course of
treatment, which prolongs the octogenarian’s life but doesn’t alleviate his
misery. Instead, it drains the remaining assets of his estate. The
majority opinion opens up the possibility that the children could sue for
“wrongful prolonging of life.”
Another unanswered question is how one will select a jury in a
wrongful-birth case. Many Iowans have deep-seated moral and religious
objections to abortion, even if the unborn child has a severe disability.
This raises the specter of a highly intrusive and uncomfortable voir dire,
leading to the exclusion of a large swath of our population from the jury
panel. See Thornhill v. Midwest Physician Ctr. of Orland Park, 787 N.E.2d
247, 257 (Ill. App. Ct. 2003) (“The court excused 11 potential jurors
based upon their opinions regarding abortion.”); Wuth ex rel. Kessler v.
47
Lab. Corp. of Am., 359 P.3d 841, 852 (Wash. Ct. App. 2015) (“Jury
selection began on October 21, 2013. On the Wuths’ motion, the trial
court employed a written juror questionnaire and individual questioning
of some prospective jurors to determine whether they were able to render
an impartial verdict. The questionnaire asked whether the prospective
jurors believed abortion is morally wrong or should be illegal, whether
they had close contact with a disabled child, whether they had been a
party to medical negligence lawsuit and whether they knew any of the
parties. Jurors who responded affirmatively to any of the questions were
brought in for individual questioning.”).
The best argument the court has for its ruling is that it provides
greater motivation for physicians to provide more accurate diagnoses of
conditions in unborn children. I agree that courts should take incentives
into account in deciding cases, particularly under the common law. I
also agree that traditional tort law works well and does a good job of
internalizing the costs of negligent conduct. Yet I question whether the
majority’s incentive is needed or beneficial here. In a typical medical
malpractice case, the causation inquiry is a scientific one: Did the
physician’s negligence cause the injury? Here, though, the causation
inquiry is a human one: If the risks of a disability had been accurately
disclosed, would the woman have terminated her pregnancy? Given the
type of causation inquiry the factfinder must resolve, there is a
possibility of overdeterrence. Although this matter is not part of the
present appeal, it is a subject of disagreement among the parties, with
the defendants pointing out that the plaintiff declined her physician’s
offer of amniocentesis during a subsequent pregnancy.
I would have no problem with a potential breach of contract claim
against a physician who contractually assumes a duty to provide a
48
competent diagnosis of an unborn child’s condition. Parties are today
free by private arrangement to allocate this responsibility. This could
also avoid any question as to what course of action would have been
taken and eliminate the possible overdeterrence problem I have
mentioned in the preceding paragraph.
As the Kentucky Supreme Court noted when it rejected the
wrongful-birth cause of action,
The Bogans believe that patients should have a breach of
contract action against the physicians who offered and
charged for diagnostic prenatal testing, yet who allegedly did
not perform those services correctly. Despite our holding
denying the tort claim as a matter of law, a physician who
contracts and charges for a service, such as a prenatal
ultrasound and consequent opinion as to the results of the
ultrasound, is liable for any breach of contract in this
regard.
Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120
S.W.3d 682, 691 (Ky. 2003).
IV. Conclusion.
For all these reasons, I would affirm the grant of summary
judgment and let the general assembly decide whether to authorize this
cause of action. 19
19The majority puts the shoe on the other foot, stating, “If the legislature
disagrees with our decision, it is free to enact a statute precluding wrongful-birth
claims.” This observation is undoubtedly true. In several states, legislatures have
enacted statutes to overturn court decisions permitting wrongful-birth claims. See, e.g.,
Blake v. Cruz, 698 P.2d 315, 320–21 (Idaho 1984), superseded by statute, Idaho Code
Ann. § 5-334(1) (West, Westlaw current through laws enacted as of Jan. 18, 2017), as
recognized in Vanvooren v. Astin, 111 P.3d 125, 127–28 (Idaho 2005). However, I would
not impose that burden on the Iowa General Assembly. In our system of government, it
is the legislature’s job, not ours, generally to take the initiative on matters of public
policy.