Academic journal article Defense Counsel Journal

"Wrongful Birth" Is Just Plain Malpractice

Academic journal article Defense Counsel Journal

"Wrongful Birth" Is Just Plain Malpractice

Article excerpt

Call it "wrongful birth" if you want to, but to the Indiana Supreme Court, it's just a claim for medical malpractice. That's the court's decision in Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000), in which parents sued a physician and genetic counseling service for failing to notify them that an ultrasound test disclosed that their child would be born with abnormalities.

The child suffered from hydrocephalus, as well as other birth defects, and died when four months old. The parents filed a complaint for medical malpractice, seeking a variety of damages, and the defendants countered with a motion for summary judgment grounded on the contention that Indiana does not recognize actions for "wrongful birth." That motion failed in the trial court, and the intermediate appellate court ruled that the parents could pursue a wrongful birth claim (675 N.E.2d 1119 (Ind.App. 1997)).

The Indiana Supreme Court affirmed the denial of summary judgment, but plowed its own ground on the theory of the action and recovery. "It is unnecessary to characterize the cause of action here as `wrongful birth,"' Justice Rucker stated, "because the facts alleged in the complaint either state a claim for medical malpractice or they do not. …

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