Academic journal article Defense Counsel Journal

Wrongful Birth Still Doesn't Fly in Georgia

Academic journal article Defense Counsel Journal

Wrongful Birth Still Doesn't Fly in Georgia

Article excerpt

Emphasizing the doctrine of stare decisis, the Georgia Supreme Court declined to budge from its position in a 1990 case that wrongful birth actions should not be recognized absent legislative action. Etkind v. Suarez-519 S.E.2d 210 (Ga. 1999).

The plaintiffs' child was born with Down's syndrome, and they alleged that their obstetrician-gynecologist failed to perform an available test that would have disclosed the problem. Had they known, they would have aborted the fetus. They sued for medical and special education costs incurred in raising the child. The trial court dismissed, affirmed by the Georgia Court of Appeals, 505 S.E.2d 831 (1998), on the basis of Atlanta Obstetrics & Gynecology Group v. Abelson, 398 S.E.2d 557 (1990), which held that the state's medical malpractice statute did not authorize a wrongful birth cause of action in the absence of additional legislation.

The Etkind plaintiffs tried every which way to get the Georgia Supreme Court to back away from Abelson, but none of their arguments worked. Oddly enough, it fell to Justice Carley, now on the supreme court, to write the majority opinion. As a court of appeals judge, he had written an opinion in Abelson, later reversed, that a wrongful birth cause of action was "within the parameters of traditional tort principles" and was no more than a species of medical malpractice, Now, however, he felt bound by the state supreme court's decision in Abelson and turned back the contentions offered for deviation from that decision.

First, the plaintiffs relief on medical advances in the past decade in the area of prenatal care to support a change of position. …

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