Shull v. Reid

Supreme Court of Oklahoma · 2011 · Torts

TortsMedical MalpracticeWrongful BirthDamageswrongful birthmedical malpracticedamagesextraordinary medical expenses

Facts

The Shulls alleged that defendants negligently failed to diagnose Patricia Shull's CMV infection during the first trimester of pregnancy and failed to inform them of the significant health risk to the unborn child. Their son was later born with CMV infection and severe complications that rendered him permanently and completely helpless. The Shulls did not claim defendants could have treated CMV or caused Patricia Shull's exposure to it. They alleged that if they had been informed of the virus, they would have terminated the pregnancy.

Issue

In a wrongful birth medical malpractice action arising before the 2008 Oklahoma statute on wrongful birth, what damages may parents recover when alleged negligence deprived them of the choice to terminate a pregnancy and the child was born severely impaired?

Rule

For wrongful birth actions alleging medical malpractice arising before enactment of 63 O.S. § 1-741.11 in 2008, recoverable damages are the extraordinary medical expenses and other pecuniary losses proximately caused by the negligence. Parents may not recover emotional distress damages, loss of consortium damages, or the normal and foreseeable costs of raising a normal, healthy child. Recovery is limited to the shorter of the child's life expectancy or the age of majority.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In 2007, Lena Ortiz and Mark Ortiz sued a Tulsa obstetric practice, alleging the physicians negligently failed to inform them during pregnancy that their fetus had a serious congenital condition. Their daughter was later born with profound disabilities requiring round-the-clock nursing, adaptive equipment, and repeated hospitalizations, and the parents allege they would have terminated the pregnancy if properly informed.

If the parents prove liability in this pre-2008 Oklahoma wrongful birth action, which damages are most clearly recoverable under the governing rule?

Explanation. For pre-2008 wrongful birth medical malpractice actions, recoverable damages are extraordinary medical expenses and other pecuniary losses proximately caused by the negligence. The court rejected limiting damages to pregnancy-continuation costs, but it also rejected recovery of the normal and foreseeable costs of raising a normal, healthy child. Thus disability-related extraordinary expenses are recoverable, while ordinary child-rearing costs are not.