by Steven Ertelt
March 3, 2006
Columbus, OH (LifeNews.com) — Just two days after the Ohio state Senate approved legislation to prohibit such lawsuits, the Ohio Supreme Court has allowed a limited so-called wrongful birth lawsuit to proceed. The case involves parents who say they would have had an abortion had they known of their baby’s disabilities.
The state’s top court ruled Friday that parents should be able to have the right to sue doctors who fail to diagnose a disability prior to birth.
The 4-3 decision limited the lawsuits to the costs associated with the pregnancy and the birth of the child.
The court also ruled that such litigation could not be pursued to seek monetary damages associated with raising the baby or damages from so-called pain and suffering.
The decision came int he case of a Kentucky couple who sued a Cincinnati obstetrician and hospital that told them tests showed the baby did not contain a genetic condition the mother carried. According to an AP report, the baby is now 8 years old and can’t speak or crawl because of the disorder.
Justice Maureen O’Connor wrote that the high court overturned a 1st Ohio District Court of Appeals decision saying Richard and Helen Schirmer could sue for costs associated with raising their son — because they couple said they would have had an abortion.
Life without the impairment "was never a possibility in this situation," O’Connor wrote. "The crux of this case is a comparison of nonexistence versus existence, albeit impaired."
Earlier this week, the Ohio state Senate moved the Buckeye state closer to becoming the seventh in the nation to prohibit so-called wrongful birth lawsuits. It backed a bill that would shield doctors from those who say they did not get detailed information about an unborn baby’s disabilities that may have prompted an abortion.
The Senate voted 23-9 for HB 287 to prohibit the wrongful birth or wrongful life lawsuits.
Under the measure doctors could not be sued for misdiagnosing or failing to diagnose a disability that parents say should have been caught.
The bill originally dealt only with licensing requirements for certain birthing centers but was amended to include language from Republican Sen. Jim Jordan on the lawsuits.
The bill now goes to the Ohio House to vote on whether to concur in the Senate amendments. If the House votes to concur, the bill will go to Ohio Governor Bob Taft.
Ohio Right to Life supports the measure and said in a statement obtained by LifeNews.com that such lawsuits "are medical claims that, but for the act or omission of a medical professional, a child with a disability would have been aborted rather than born."