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Canesi v. Wilson

June 17, 1999

BRANDON CANESI, A MINOR BY HIS PARENTS MELISSA AND SEBASTIAN CANESI AS GUARDIAN AD LITEM, MELISSA AND SEBASTIAN CANESI, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JAMES A. WILSON, M.D. AND RONALD LOEWE, M.D., DEFENDANTS-RESPONDENTS, AND JOHN DOE PHYSICIAN (2-10) AND JOHN DOE DRUG MANUFACTURER (1-10), DEFENDANTS.



The opinion of the court was delivered by: Handler, J.

Argued November 3, 1997

On certification to the Superior Court, Appellate Division, whose opinion is reported at 295 N.J. Super. 354 (1996).

In this medical malpractice case, parents brought suit against two obstetricians after their child was born with the congenital defect of bilateral limb reduction. The parents' principal allegation was that the doctors were negligent in failing to warn them that a drug prescribed for the plaintiff mother posed the specific risk of fetal limb reduction and that the prescribed drug caused this defect. They also alleged other acts of negligence, including the failure to warn of general, unspecified fetal risks posed by the prescribed drug, and to take diagnostic measures during the mother's pregnancy that would have disclosed the presence of a fetal defect. They assert that as a result of defendants' negligence they were deprived of their right as parents to decide whether or not to terminate the pregnancy, they would have terminated the pregnancy had they been warned, and they are entitled to the damages allowable in a wrongful birth cause of action. The doctors, focusing on the parents' allegation that the prescribed drug caused their child's birth defect, characterize plaintiffs' claims as based on the doctrine of informed consent and contend, accordingly, that they cannot be found liable because the parents cannot prove medical causation, that is, that the drug was the medical cause of the child's congenital impairment.

In light of the contentions of the parties and the determinations of the lower courts, the basic issue that must be addressed is whether it is necessary to establish medical causation in a wrongful birth action that involves the prescription of drugs without adequate warning of the fetal risks posed by those drugs.

I.

On July 1, 1991, plaintiff Melissa Canesi, then twenty-nine years old, consulted defendant Dr. James A. Wilson, a specialist in obstetrics and gynecology, concerned that she might be pregnant because she had been amenorrheic for eleven days. A urinalysis yielded the same results as a home pregnancy test had: plaintiff was not pregnant. Thereafter, Dr. Wilson prescribed for plaintiff Provera, a progestational agent designed to induce menstruation. Dr. Wilson did not provide any information to plaintiff concerning the potential side effects and contraindications of the drug. At the time, the Physicians' Desk Reference (PDR) warned that if a woman was or became pregnant while taking Provera, she should be advised that there was a risk that the fetus would suffer from congenital anomalies, including limb reduction, and a risk that she would retain a defective ovum instead of spontaneously aborting it.

Provera did not succeed in inducing menstruation and, on July 15, Dr. Wilson gave plaintiff a blood serum test to determine if she was pregnant. This time, the test was positive. Upon learning that she was pregnant with twins, plaintiff asked Dr. Wilson if her ingestion of Provera would have a deleterious impact on the fetuses or the course of her pregnancy. Dr. Wilson told plaintiff not to worry.

Because Dr. Wilson was not a participating physician in plaintiff's health insurance plan, she needed to look elsewhere for pregnancy care. On July 25, she saw Dr. Ronald Loewe for the first time and informed him both of her pregnancy and of the fact that she had taken Provera. Dr. Loewe told her that she should not be concerned that she had taken the drug.

Plaintiff's pregnancy was not without incident. She began spotting, one of the fetal twins died, and an amniocentesis revealed excessive amniotic fluid, an indication that the remaining fetus might be suffering from an abnormality. On March 18, 1992, plaintiff gave birth to a boy, Brandon, who had the congenital impairment of bilateral limb reduction.

Plaintiff, together with her husband Sebastian, sued Drs. Wilson and Loewe, alleging that Dr. Wilson was negligent for failing to diagnose her pregnancy in a timely manner, and that both doctors were negligent for failing to inform her of the effect her ingestion of Provera would have on her fetus and for "otherwise" negligently caring for and treating her. Plaintiff claimed that had she known of the risk of congenital defects generally, or limb reduction specifically, that Provera posed to her remaining fetus, or had she been told that she was at an increased risk of retaining a defective ovum, she would have terminated her pregnancy. Being kept ignorant of these risks, she asserted, deprived her of the personal choice of determining whether or not to terminate her pregnancy. The complaint also included a claim brought on behalf of Brandon. That claim alleged that Provera caused his bilateral limb reduction and that defendants were negligent in prescribing the drug to his mother without warning of this risk.

Defendants moved for summary judgment. They pointed out that not only did plaintiffs fail to present any expert testimony that Provera caused fetal limb reduction, but the latest edition of the PDR no longer contained a warning that Provera was even associated with this defect. *fn1 Construing the cause of action essentially to be one involving the lack of informed consent, the defendants contended that, because plaintiffs could not prove medical causation, i.e., that Provera had actually caused Brandon's limb reduction, defendants, as a matter of law, could not be found liable.

The trial court granted defendants' motion, noting that a plaintiff who alleges that her physician's malpractice consists of a failure to disclose material risks of a prescribed drug must prove that the drug in fact caused the harm that materialized. The Appellate Division affirmed. 295 N.J. Super. 354 (1996). The court determined that even if plaintiffs' claim was denominated a wrongful birth action based on the lost opportunity to terminate the pregnancy, plaintiffs still "must establish that the taking of Provera caused Brandon's limb reduction abnormalities." Id. at 362.

The Court granted plaintiffs' petition for certification. 149 N.J. 139 (1997).

II.

A.

A wrongful birth cause of action is predicated on a woman's right to determine for herself whether or not to continue or terminate her pregnancy. Persons "have a right of their own either to accept or reject a parental relationship, and the deprivation of that right by the negligent misconduct of another creates a cause of action in the parents." Schroeder v. Perkel, 87 N.J. 53, 66 (1981). The right protects a distinctively personal interest. See Hummel v. Reiss, 129 N.J. 118, 136 (1992) (Handler, J., Dissenting) (noting that because decision to terminate pregnancy "involve[s] profound moral and personal issues," it is one that "only [the patient] could make").

The violation of the interest in self-determination that undergirds a wrongful birth cause of action consists of the parents' lost opportunity to make the personal decision of whether or not to give birth to a child who might have birth defects. Schroeder, supra, 87 N.J. at 66. The claim in a wrongful birth action can arise when a physician fails to provide adequate genetic counseling, see id. at 63, fails to detect a discoverable fetal defect or to inform the parents thereof, see Berman v. Allan, 80 N.J. 421 (1979), fails to interpret test results properly, see Procanik v. Cillo, 97 N.J. 339 (1984), or fails to warn of a child being born with a defect, see Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983); see also Williams v. University of Chicago Hosp., 688 N.E.2d 130, 133 (Ill. 1997) (stating that in wrongful birth actions, parents allege that they would not have carried fetus "to term if it had not been for the defendant's negligence in prenatal testing, genetic prognosticating, or counseling [them] as to the likelihood of giving birth to a physically or mentally impaired child") (internal quotation and citation omitted)).

Because the patient's protectable interest is the personal right of self-determination, the doctor's duty of disclosure must be sufficient to enable her to make an informed and meaningful decision concerning whether or not to continue the pregnancy.

Compensable damages in a wrongful birth case include the emotional injury of the parents caused by the deprivation of "the option to accept or reject a parental relationship with the child. . . ." Berman, supra, 80 N.J. at 433. These damages also include the special medical expenses attributable to raising a child with a congenital impairment. See Schroeder, supra, 87 N.J. at 70. Damages, however, do not encompass the birth defect or congenital impairment itself. See Berman, supra, 80 N.J. at 429-30 (stating that plaintiff may not recover compensable damages for existence per se of child in impaired state).

Because in a wrongful birth action damages for the birth defect itself are not recoverable, the parents are not required to prove that the doctor's negligence caused the defect. See Keel v. Banach, 624 So.2d 1022, 1029 (Ala. 1993) ("The nature of the tort of wrongful birth has nothing to do with whether a defendant caused the injury or harm to the child, but, rather, with whether the defendant's negligence was the proximate cause of the parents' being deprived of the option of . . . making an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child."); Robak v. United States, 658 F.2d 471, 477 (7th Cir. 1981) (stating that causation in wrongful birth action "is not based on the injuries to the fetus but on defendant's failure to diagnose [plaintiff's medical condition] and inform her of the consequences [to her pregnancy]"); see also Provenzano v. Integrated Genetics, 22 F.Supp. 2d 406, 417 (D.N.J. 1998) (acknowledging in wrongful birth case, medical causation not required because "cause of [the child's] genetic condition is not at issue"; rather "[t]he alleged injury is [the child's] very birth"); Discussion infra at __ (slip op. at 26-32). Because the cognizable harm is the emotional and economic injury suffered by the parents, they must prove that these injuries were proximately caused by the doctor's negligence in depriving them of the opportunity to decide whether or not to become parents of a child with a congenital defect. *fn2 E.g., Procanik, supra, 97 N.J. at 342.

Like a cause of action for wrongful birth, a claim based on the doctrine of informed consent is predicated on the patient's right to self-determination. The doctrine of informed consent is rooted in the premise that "every human being of adult years and sound mind has a right to determine what shall be done with his own body." Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972) (internal quotation and citation omitted); see also Baird v. American Med. Optics, 155 N.J. 54, 79 (1998) (O'Hern, J., Dissenting) (observing that informed consent is "dignitary tort" preserving patient's "rights of self-determination and personal integrity"). Informed consent doctrine requires a plaintiff to prove that the undisclosed risk was medically accepted and material, that a reasonably prudent person in the patient's condition would not have undergone the treatment if aware of the risk, and that the risk came to fruition. See Canterbury, supra, 464 F.2d at 791.

Informed consent doctrine imposes on the physician a duty to disclose "such information as will enable the patient to make an evaluation of the nature of the treatment and of any attendant substantial risks, as well as of available options in the form of alternative therapies." Largey v. Rothman, 110 N.J. 204, 208 (1988). That duty of disclosure rejects the "reasonable physician" standard and focuses on the material risks a "prudent patient" would want to know before making a medical decision. *fn3

In informed consent cases, proximate cause requires the plaintiff to prove that a reasonably prudent patient in the plaintiff's position would have declined to undergo the treatment if apprised of the risks that the defendant negligently failed to disclose. Id. at 215-16. In addition, because damages in informed consent cases include the harm or physical injury to the patient, there must be medical causation, that is, a causal connection between the undisclosed risk and the injury ultimately sustained. Grasser v. Kitzis, 230 N.J. Super. 216, 221-22 (App. Div. 1988) (noting that in informed consent cases where plaintiff suffers injury during surgery, plaintiff establishes proximate causation by making two showings: (1) prudent patient would have refused consent if full and adequate disclosure had been made, and (2) injury suffered was related to operation and did not occur spontaneously or by independent means); see also Canterbury, supra, 464 F.2d at 790 (noting that "[a]n unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence").

These principles apply in informed consent cases that involve the prescription of drugs. Hence, the test of proximate cause in such cases requires that the plaintiff establish a causal relation between the prescribed drug about which she was inadequately warned and the harm that materialized. See, e.g., Niemiera v. Schneider, 114 N.J. 550, 554 (1989) (stating in failure-to-warn medical malpractice case involving administration of vaccine, "fundamental underlying question" is whether vaccine "was the cause of" plaintiff's brain damage); Eppel v. Fredericks, 610 N.Y.S.2d 254 (App. Div. 1994) (holding that in order to establish prima facie case for failure to procure informed consent, plaintiff must establish, among other things, that prescribed drug about which she received inadequate warning was proximate cause of her injury). That test of medical causation is applicable in an informed consent case even though the harm that materializes is a birth defect. Ramon v. Farr, 770 P.2d 131, 137 (Utah 1989) (finding that plaintiff failed to establish that child's serious birth defects were caused by doctor's negligent use of anesthesia).

In sum, the informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff's position would deem material to her decision. What is or is not a medically accepted risk is informed by what the physician knows or ought to know of the patient's history and condition. These causes of action, however, have important differences. They encompass different compensable harms and measures of damages. In both causes of action, the plaintiff must prove not only that a reasonably prudent patient in her position, if apprised of all material risks, would have elected a different course of treatment or care. In an informed consent case, the plaintiff must additionally meet a two-pronged test of proximate causation: she must prove that the undisclosed risk actually materialized and that it was medically caused by the treatment. In a wrongful birth case, on the other hand, a plaintiff need not prove that the doctor's negligence was the medical cause of her child's birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor's negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy. The emotional distress and economic loss resulting form this lost opportunity to decide for herself whether or not to terminate the pregnancy constitute plaintiff's damages.

B.

This analysis frames and directs our inquiry into whether plaintiffs have pleaded and proffered evidence sufficient to establish a basis for liability.

That inquiry is initially complicated by the allegations and claims presented by plaintiffs' complaint. On the one hand, plaintiffs' complaint alleges a causal connection between the prescribed Provera and Brandon's birth defect and contains a claim for damages for the defect itself. *fn4 That comports with a claim based on informed consent. On the other hand, plaintiffs, in different counts and in response to defendants' motion for summary judgment, disclaim damages for the defect itself and insist that they seek to recover only for their injuries as parents, i.e., their own mental and emotional anguish at having lost the opportunity to decide for themselves whether or not to terminate the pregnancy and the special expenses incurred in rearing a child with an impairment. Those claims are typically embraced by a wrongful birth cause of action.

It is not entirely clear whether the only claim the lower courts considered was that seeking to recover damages for the child's impaired condition based on the causal connection between the ingestion of Provera and the birth defect. That claim, regardless of whether it is denominated as one based on informed consent, was properly foreclosed by summary judgment. The record discloses that plaintiffs presented insufficient proof of a causal relationship between the drug and the defect that afflicts their son. That failure of proof would also support summary judgment in favor of defendants to the extent plaintiffs sought damages in the nature of a claim for wrongful life based on their allegation that the drug caused the defect. Similarly, the evidence was insufficient to establish medical causation in support of plaintiffs' additional allegation that Provera caused the retention of a defective ovum, leading eventually to the birth of their child with the congenital defect. 295 N.J. Super. at 359.

The question remains, however, whether summary judgment was properly entered on the wrongful birth claim. Plaintiffs tried unsuccessfully at the hearings on the summary judgment motion to argue that they had a wrongful birth claim apart from and in addition to their claims based on the allegation that Provera posed the specific risk of bilateral limb reduction and in fact caused that defect. They asserted that they did not restrict their claims only to the specific fetal risk of bilateral limb reduction allegedly posed by Provera and that they did not seek damages only for the impairment suffered by their child; therefore, they were entitled to recover on other grounds that were not dependent on medical causation between the prescribed drug and the resulting birth defect.

Among those "other independent grounds of liability" was defendants' negligent failure "to inform and warn" plaintiffs "that the drug manufacturers issued clear warnings that Provera should not be taken during the first four months of pregnancy" and that the PDR required warnings of general "congenital anomalies, and that this negligence, together with other negligent acts, deprived them of the opportunity to terminate the pregnancy. Plaintiffs' attorney summarized this position. While acknowledging that he had "some big problems on the causation" issue, he contended, citing the wrongful-birth decisions of Berman and Procanik, supra, that he need not prove causation because he was alleging wrongful birth arising from the failure to warn and other negligent acts. He expressly argued that the doctors should have warned plaintiffs and that in failing to do so [t]hey didn't give her her chance, all[] they had to do was say, "Provera has the possibility of (a) causing fetal abnormalities, generically; (b) of retaining an abnormal fetus rather than spontaneously aborting it; (c) [and] that [there were] indications of mild polyhydramnios[] an indication of fetal abnormality," and [their] failure to tell her [of those things] deprived her of her right to abort.

"This particular claim," plaintiffs insisted, "is not the more typical case of a failure to obtain informed consent." Although aware of this argument, the trial court did not determine whether plaintiffs' contentions based on a wrongful birth claim fell beyond the scope of defendants' motion for summary judgment and whether the evidence was sufficient to support a wrongful birth claim. The record provides an adequate basis for making that determination.

The initial analysis based on the record must focus on whether defendants breached a duty. As previously noted, the duty of disclosure in a wrongful birth case is grounded in the right of self-determination. Supra at __ (slip op. at 7-8). The doctor's duty is to communicate to the patient enough material information to allow her to make an "informed choice concerning the continuation of pregnancy." Alan B. Handler, Individual Worth, 17 Hofstra L. Rev. 493, 496 n.23 (1989); see Hummel, supra, 129 N.J. at 134 (Handler, J., Dissenting) (patients must "be told about and understand the available options and have all the relevant information necessary to make" a meaningful decision). The test of "materiality" in a wrongful birth case is "whether a 'reasonable patient,' in what the physician knows or should know to be the patient's position, would be 'likely to attach significance to the risk or cluster of risks' in deciding whether to forego the [pregnancy or to bring the fetus to term]." Bennet v. Surgidev Corp., 311 N.J. Super. 567, 573 (App. Div. 1998) (citing Largey, supra, 110 N.J. at 211-12 (quoting Cantebury, supra, 464 F.2d at 787)). See Procanik, supra, 97 N.J. at 364 (Handler, J., Concurring and Dissenting) (indicating physician's general duty of disclosure encompasses material information relating to continuation of pregnancy); Carolyn Lee Brown, Genetic Malpractice:

Avoiding Liability, 54 U. Cin. L. Rev. 857 (1986) (noting in wrongful birth cases importance of condition of individual patient and that "the facts of a given case will play a large part in determining the reasonableness of the physician's response").

The "prudent-patient" standard applicable to a claim for negligent interference with procreative autonomy contemplates a fully informed patient:

"A physician or counselor could reasonably be expected to ascertain enough of a patient's background, [and] her reasons for seeking pregnancy [] counseling . . . to assess what information might be useful to the patient's deliberative process and then to discuss that information with her. The standard only requires physicians and counselors to make reasonable efforts. They need not be mind readers, as long as they reasonably attend to the circumstances of their individual patients. . . . The reasonably prudent patient standard thus takes into account each woman's unique circumstances."

[Kathy Seward Northern, Procreative Torts:

"Enhancing the Common-Law Protection for Reproductive Autonomy, 1998 U. Ill. L. Rev. 489, 533.]"

The physician's obligation, therefore, does not "compel disclosure of every risk . . . to any [pregnant] patient[,]" but rather only "material risks" to a reasonable patient." Largey, supra, 110 N.J. at 213. E.g., Jones v. United States, 933 F. Supp. 894, 902 (N.D. Cal. 1996) (holding that military physicians did not have duty to disclose to patient that penicillin they had prescribed for her could interfere with effectiveness of her birth control pills because existence of such drug interaction was unproven and danger of interference occurring appeared to be extremely remote), aff'd, 127 F.3d 1154 (9th Cir. 1997), cert. denied, __ U.S. __, 118 S. Ct. 2359, 141 L. Ed. 2d 728 (1998); Munro v. Regents of the Univ. of Cal., 263 Cal. Rptr. 878, 882 (Cal. Ct. App. 1990) (noting that "it is medically impossible to screen all patients for all known genetic abnormalities"); Smith v. Cote, 513 A.2d 341, 347 (N.H. 1986) (holding that physician is not required "to identify and disclose every chance, no matter how remote, of the occurrence of every possible birth 'defect,' no matter how insignificant"). Although the duty of disclosure in wrongful birth cases serves to protect the individual's right of self-determination and personal autonomy, because that duty is premised on principles of civil tort law, the scope of disclosure in a wrongful birth context is not coextensive with or measured by the woman's constitutional right to decide the fate of her pregnancy. Cf. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (holding that woman has constitutionally protected right to determine for any reason or no reason to terminate her pregnancy). The physician's duty to warn is thus limited by what risks a reasonably prudent patient in the plaintiff's position would consider material to her decision. *fn5 These constraints serve to place reasonable bounds on the extent of disclosure required by doctors and, so bounded, the standard comports with basic considerations of fairness and public policy that are relevant in determining the scope of a duty of care and the extent of liability that may be placed on the medical profession. E.g., Carey v. Lovett, 132 N.J. 44, 58-60 (1993).

Applying the standard governing the duty of disclosure, we consider whether the evidence in this case, viewed most favorably for plaintiffs, was sufficient to enable a jury to determine that defendants violated the duty owed plaintiffs. We note preliminarily that the defendant doctors' concession of negligence or breach of duty was made only for the limited purpose of the summary judgment motion below so that the trial court could determine whether plaintiffs had satisfied the test of proximate causation in the context of a claim based on the principles of informed consent doctrine. That concession, therefore, does not extend to the determination of plaintiffs' wrongful birth claim.

Plaintiffs contend that the PDR, which contained specific warnings that Provera could cause bilateral limb reduction, the retention of a defective ovum, and general genetic anomalies, constituted evidence of the standard of care governing the doctors' duty of disclosure. In determining what constitutes a medically accepted risk when defining a doctor's duty to warn, we have recognized that the PDR, standing alone, is not and should not be the touchstone of what risks a physician must reveal to his or her patient. See Morlino v. Medical Ctr. of Ocean County, 152 N.J. 563, 580 (1998) (holding that because PDR warnings are written "for many reasons including compliance with FDA requirements, advertisement, the provision of useful information to physicians, and an attempt to limit the manufacturer's liability[,]" PDR warning alone does not establish physician's duty of care). Thus, the fact that the PDR contained warnings of the general and specific risks Provera posed to the fetus is not, of itself, sufficient evidence to establish a standard of care.

Plaintiffs, however, do not rely solely on the PDR to establish the standard of care. They present additional evidence that fetal deformity was a medically accepted risk of which they should have been informed. Dr. William Vilensky, one of plaintiffs' experts, noted in his report that the standard of care required that, under circumstances such as were present in this case, the patient be informed of the PDR warnings. Similarly, Dr. Deborah Consoli, plaintiffs' second expert, testified that in 1991 the medical community was split concerning whether Provera caused limb reduction and that she, therefore, informed her patients of the risk. Moreover, both defendant doctors had actual knowledge of plaintiff's personal concern about having taken Provera while pregnant. The doctors, however, did not explain to plaintiff whether there were any risks posed by or associated with the ingestion of Provera that were recognized by the medical community or a substantial segment thereof, or whether those risks were remote or likely, or could result in severe or mild impairments. Instead, the doctors dismissed her personal concerns and told her "not to worry."

In addition, plaintiff exhibited other "maternal indicators." *fn6 The record discloses evidence that plaintiff was spotting, one of the fetal twins died in utero, and an amniocentesis revealed polyhydramnios, *fn7 which is a possible indicator of fetal abnormality. Defendants' own expert admitted that there were signs that "suggested that this was an abnormal pregnancy." Plaintiffs' evidence also showed that a diagnostic procedure that could have detected whether the potential defect had in fact materialized was available and yet was not utilized until so late in the pregnancy that detection was unlikely. *fn8 Defendants did not inform plaintiffs of the availability of this diagnostic test nor did they administer that test during the critical period of her pregnancy. As her pregnancy progressed and more maternal risks appeared, the evidence would sustain the determination that Dr. Loewe, instead of keeping plaintiff properly apprised of the status of her pregnancy, chose to keep her in the dark. Given these maternal indicators, the doctors should have known that a reasonable prudent patient in this woman's position would have likely attached significance to the risks associated with Provera. *fn9 In sum, there was sufficient evidence to enable a jury to determine that defendants breached their duty of disclosure.

The evidence, we find, was also sufficient to establish proximate cause. The Dissent accuses the Court of "eliminat[ing] proximate cause" altogether, or, alternatively, "redefin[ing] it beyond recognition." Post at (slip op. at 10-11). That simply is not the case.

Legal or proximate cause is clearly an essential element of a wrongful birth cause of action. Medical causation, however, is not. The Dissent, by insisting that medical causation is a requirement, unduly burdens a patient's wrongful birth claim that does not seek recovery for the congenital impairment. There is sound authority explaining why medical causation is not a requirement in wrongful birth causes of action. The failure to establish medical causation of the child's injury historically was viewed as a ground warranting the dismissal of wrongful birth actions. Stephanie S. Gold, Note, An Equality Approach to Wrongful Birth Statutes, 65 Fordham L. Rev. 1005, 1013 (1996). In order to prove causation, a plaintiff had to prove that the physician caused the anomaly in the child. Ibid; Anthony Jackson, Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England, 17 Loy. L.A. Int'l & Comp. L.J. 535, 560 (1995). Over time, however, it was recognized that the nature of the tort of wrongful birth does not depend on whether a defendant caused the injury or harm to the child. Rather, the appropriate inquiry was viewed as whether the defendant's negligence was the proximate cause of the parents' loss of the option to make an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child. Brenda L. Kimble, Wrongful Birth: A Practitioner's Guide to a New Arrival, 55 Ala. Law. 84, 88 (1994). Today, "most courts [] recognize the distinction between causing [a birth defect] and causing the parents to lose the option to terminate the pregnancy, [and] the latter causation standard is widely accepted in jurisdictions recognizing wrongful birth actions." Gold, supra, at 1013 (citing Robak, supra, 658 F.2d at 477; Keel, supra, 624 So.2d at 1027).

The appropriate proximate cause question, therefore, is not whether the doctor's negligence caused the fetal defect; the congenital harm suffered by the child is expressly not compensable. Rather, the determination to be made is whether the doctors' inadequate disclosure deprived the parents of their deeply personal right to decide for themselves whether to give birth to a child who could possibly be afflicted with a physical ...


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