from the Iowa District Court for Lee (North) County, John M.
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.
M. Willoughby of Gershon, Willoughby, Getz & Smith, LLC,
Baltimore, Maryland, Darwin Bünger of Crowley,
Bünger & Prill, Burlington, for appellants.
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.
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).
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.
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.
Background Facts and Proceedings.
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
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.
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.
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.
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
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.
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."
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
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.
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.
Standard of Review.
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)).
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
Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa
2003) (quoting Oswald v. LeGrand, 453 N.W.2d 634,
635 (Iowa 1990)).
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
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
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,
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.
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).
majority of states recognize wrongful-birth claims. At least
twenty-three states recognize the claim by judicial
decision. Maine allows wrongful-birth
claims by statute. A minority of
jurisdictions decline to do so. Three state supreme courts
have refused to allow wrongful-birth claims. Twelve states have enacted legislation
barring wrongful-birth claims. Three of those states had allowed
wrongful-birth claims by judicial decision before the
legislature barred them.
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)
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
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.
Wrongful Birth as a Cognizable Claim Under Iowa Law.
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
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
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.
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
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)).
"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