By Amber L. Blasingame
In a case of first impression in Colorado, Dotson v. Bernstein, the Colorado Court of Appeals applied the same rule, recognizing a claim of injury for a woman who gave birth to a healthy child following a failed termination of the pregnancy. Dotson v. Bernstein, No. 08CA0020, slip op. (Colo. App. Mar. 5, 2009). The Colorado Supreme Court previously recognized a parent’s claim for "wrongful birth" when a doctor’s negligent pre-natal action led to the birth of an impaired child. Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988).
In Lininger v. Eisenbaum, the doctor failed to diagnose a genetic affliction that causes blindness, Leber’s congenital amaurosis, before a child was born. Having one child who suffered from the condition, before conceiving the second child, the parents had consulted the defendant physician to verify that the condition causing blindness in the first child was not hereditary. The physician assured the parents the condition was “non-hereditary.” After the second child was born with the same congenital blindness, the doctor diagnosed both children with Leber’s and calculated that after the first child’s birth, the second child had a one and four chance also being born with Leber’s. The parents filed a claim for “wrongful birth” and, on behalf of the child, a claim of “wrongful life.” The Colorado Supreme Court recognized the parents’ claim of injury for wrongful birth of an impaired child and their right to recover damages for the pregnancy and delivery of the child. However, the Supreme Court denied the child’s claim for wrongful life, because “being born with an ailment as opposed to not being born at all,” is not a recognizable injury.
The court of appeals in Dotson applied the ruling in Lininger to also include a claim of injury for a healthy child “born when measures to prevent childbirth have failed through the actionable fault of the defendant physician.” Applying “traditional tort analysis” the court of appeals reasoned that a “plaintiff may seek recovery for foreseeable damages for harm resulting to her proximately caused by defendant’s failure to prevent the unwanted birth.” The defendant doctor agreed that his negligent failure to prevent the birth was the cause of the resulting birth. The court of appeals also held the claim was redressable because the plaintiff claimed “economic and noneconomic damages” or “consequential damages,” including “medical expenses and pain and suffering associated with labor, delivery, and subsequent medical complications from the birth.”
However, the court of appeals declined to decide whether a woman may also claim damages for the “cost of raising a child.” Because the “litigation is at an early stage” the court of appeals focused only on whether the plaintiff had a claim of injury to overcome a motion to dismiss for failure to state a claim. The court of appeals having ruled the plaintiff did have a redressable claim of injury remanded the case to the trial court.
Judge Connelly, however, in his concurrence, stated the court of appeals could have ruled on the cost of raising a child based on the Supreme Court’s decision in Lininger. He agreed that “traditional tort principles” which recognized a claim of injury for wrongful birth applied. According to Judge Connelly, any court that concluded otherwise was “interposing their own religious views that birth of a healthy child supersedes any physical, economic, or emotional injuries caused by a pregnancy.” He cited to Miller v. Johnson, in which the Virginia Supreme Court quoted the Bible, “as soon as she delivereth the child, she remembereth no more her anguish, for joy that a man is born into the world.” (citing Miller v. Johnson, 343 S.E.2d 301, 308 n.* (Va. 1986) (Russell, J., dissenting)). He argued, though, that if an impaired child could not claim wrongful life and collect damages for cost of a parent raising and caring for a child with a disability, then the mother of a healthy child could not collect such damages either. Ultimately, Judge Connelly concluded, the existence of a life, any life, versus no life at all, is not an injury in the State of Colorado, and to award the cost of raising the child as damages for a wrongful birth action would recognize the child’s life as an injury.
By Amber L. Blasingame