Wrongful Life in Ohio

The Ohio Supreme Court has decided, in the court's own words, "Parents of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease may bring a medical malpractice action for those costs arising from the pregnancy and birth of the child." Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc.,108 Ohio St.3d 494, 2006-Ohio-942. (Click on the case name for copy of the opinions.)

If the doctor had not been negligent, it was alleged, the parents woudl have decided upon an abortion to avoid having an abnormal, unhealthy child.

Given a constitutional right to abortion found in Roe v. Wade, (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, this Ohio decision was probably inevitable. Persons wrongly deprived of a right should generally be able to recover damages from the wrongdoer. If Roe v Wade is ever overturned, decisions like this one will have to change.

The good news is that the damages are limited to the costs of the pregnancy and birth. As a result, experienced medical malpractice lawyers in Ohio would not bring such as case. The potential recovery is not high enough to justify the high costs (expensive experts and depositions) and extensive time required to bring and prosecute a medical malpractice case.

The dissenting opinion suggested that the legislature and not the courts should determine whether the public policy of Ohio should allow recovery of damages for wrongful life. The dissent said, "Because I believe that adopting this new cause of action is unwise and cannot be justified by traditional tort concepts of causation and damage, I would leave the matter for the legislature to determine."