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Plowman v. Fort Madison Community Hospital

Supreme Court of Iowa

June 2, 2017


         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.

          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.

          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.

         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 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 fourth 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, 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 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)).

         "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 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:

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] Maine 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. & 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 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 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 claim 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 . . . .

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)).

         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 ...

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