Ohio High Court OKs 'Wrongful Birth' Suit

Parents can sue a doctor if a genetic screening misses a severe or fatal condition that would have caused them to seek an abortion, a divided state Supreme Court ruled Friday.

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."

The case was the first time Ohio's justices had issued a definitive ruling on a claim of "wrongful birth." A handful of states allow such claims by parents seeking compensation for the financial burden of caring for a severely disabled child or the emotional trauma of watching a baby die shortly after birth.

Ohio and several other states have previously rejected a different type of claim, called "wrongful life," in which the disabled child is the plaintiff.

Attorney Frank Woodside, who represents Children's Hospital Medical Center in Cincinnati, said the decision was correct.

Doctors had no involvement in the actual defect, he said, and the law doesn't allow damages if the disabling condition existed from the point of conception.

A message was left with the attorney representing the Schirmers.