Academic journal article Issues in Law & Medicine

Marie Wood and Terry Borman V. University of Utah Medical Center *. (Verbatim)

Academic journal article Issues in Law & Medicine

Marie Wood and Terry Borman V. University of Utah Medical Center *. (Verbatim)

Article excerpt

[paragraph] 1 The instant appeal requires us to determine the constitutionality of the Utah Wrongful Life Act, Utah Code Ann. [subsection] 78-11-23 to -25 (2002), legislation prohibiting a cause of action "based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted." Utah Code Ann. [section] 78-11-24 (2002). Plaintiffs insist the statute violates the Open Courts Clause, article I, section 11 of the Utah Constitution, the Due Process guarantees of the United States and Utah Constitutions, and the Equal Protection guarantees of the United States and Utah Constitutions. Plaintiffs claim the district court erred in upholding the Utah Wrongful Life Act as constitutional and in dismissing plaintiffs' complaint for wrongful birth as barred by the Act. We are also asked to decide whether plaintiffs' claims for negligent infliction of emotional distress and failure to obtain informed consent were appropriately dismissed as barred by the Act because they necessarily require proof that plaintiffs would have aborted the child. We affirm the decision of the district court.

Factual and Procedural Background

[paragraph] 2 When determining whether a trial court properly dismissed a complaint, we accept the factual allegations in the complaint as true and consider them, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party See Krouse v. Bower, 2001 UT 28, [paragraph] 2, 20 P.3d 895. We recite the facts accordingly

[paragraph] 3 This case arose from treatment and advice that plaintiffs Marie Wood and Terry Borman received from the University of Utah Medical Center related to Marie's pregnancy When Marie became pregnant, she and her husband, Terry, sought genetic counseling from the University of Utah Medical Center ("Medical Center"). They specifically sought advice about the risk that Marie, because of her age, would give birth to a child with a genetic disorder. Doctors at the Medical Center performed some tests in January 1998, the results of which plaintiffs claim they were never informed. Further testing was performed in February and March 1998. An initial February test was unsuccessful, so plaintiffs opted for a repeat test later in the month. A second February test was performed, followed by further testing in March. Plaintiffs claim they were again not informed of the results of a March test. They were, however, informed in late March that the tests indicated an 85% probability that Marie's would-be child would be born with Down syndrome. Nevertheless, doctors told plaintiffs not to worry because the tests often resulted in false positives and led plaintiffs to believe that the chances Marie's child would have Down syndrome were actually quite small. Based on this advice, plaintiffs decided to proceed with delivery. In August 1998, Marie delivered a baby girl, Mary Lorraine, who was diagnosed with Down syndrome.

[paragraph] 4 Plaintiffs filed suit in the district court alleging that the doctors and other health care professionals employed at the Medical Center were negligent because they misread the tests, and failed to inform plaintiffs of certain test results; specifically, the likelihood that Marie would deliver a child with Down syndrome. Plaintiffs raised three causes of action: (1) Negligence in performing and interpreting various tests and for failing to provide plaintiffs with sufficient information to make an informed decision whether to abort, resulting in the birth of Mary, a child with Down syndrome. In raising this claim plaintiffs maintain that because of this negligence, they incurred the cost of labor and delivery, they are incurring unwanted medical and other expenses related to Mary's care, they will be "unable to live ordinary lives due to the increased attention Mary Lorraine will require," they suffer mental anguish and pain and suffering, and Mary was "wrongfully born afflicted with Down syndrome, and will suffer the effects of that syndrome for the remainder of her natural life. …

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