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Editor: Katharine Van Tassel
Akron Univ. School of Law

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Monday, March 6, 2006

Wrongful Birth Case Decided by Ohio Supreme Court

In a somewhat bizarre opinion, a divided Ohio Supreme Court has ruled that parents can sue a doctor if a genetic screening test fails to detect (in this case the test was apparently negligently performed) a severe condition that would have led the parents to terminate the pregnancy.  According to law.com,

The 4-3 decision limited such lawsuits to costs associated with a pregnancy and the birth of the child, saying such parents could not sue for pain-and-suffering damages or repayment of the costs of raising a disabled child.

The decision was a partial victory for a Kentucky couple who sued a Cincinnati obstetrics practice and hospital that provided genetic counseling and told them their fetus did not have a genetic disorder that the mother carried. The 8-year-old boy born in 1997 has the disorder and can't speak or crawl.

The finding overruled a lower-court decision that Richard and Helen Schirmer could sue for the costs of raising their disabled son.

Justice Maureen O'Connor, writing for the majority, noted that the Schirmers had indicated they would have aborted the child if they had received the correct diagnosis. As a result, she said they could not sue for costs above those of raising a child without a disability, since that was never a possibility.

Life without the impairment "was never a possibility in this situation," O'Connor said. "The crux of this case is a comparison of nonexistence versus existence, albeit impaired."

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