- Associated Press - Friday, June 2, 2017

IOWA CITY, Iowa (AP) - The parents of a severely disabled child can sue doctors who failed to inform them about fetal abnormalities that, if revealed, would have prompted the mother to have an abortion, the Iowa Supreme Court ruled Friday.

The 6-1 ruling marks the first time that a personal injury claim for “wrongful birth” has been recognized in Iowa. The majority said the decision brings Iowa in line with a majority of states that have allowed such lawsuits through court decisions or laws. But justices also noted that twelve have laws banning them, and said Iowa’s Republican-controlled Legislature “is free to enact” such a statute if it disagrees with the decision.

The case involves a southeastern Iowa boy born in 2010 with cerebral palsy, intellectual disability and several other impairments that require frequent doctors’ visits in Keokuk and Iowa City and make it unlikely he’ll ever walk or speak.

The boy’s parents allege the mother was assured after an ultrasound during her 22nd week of pregnancy by her doctor that “everything was fine” with the fetus. They claim that, in reality, a radiologist had found that the fetus displayed “head abnormalities” and recommended follow-up; another radiologist didn’t report those findings and instead claimed the head was only slightly smaller than normal.

The parents say they were never informed of the problems, which would have led the mother to terminate the pregnancy, and that no further testing was done. They filed a lawsuit in 2013 against the Fort Madison Community Hospital, a radiology clinic and other medical providers, seeking damages for past and future medical care, mental anguish and the loss of income after the mother had to quit her job to care for the boy.

A judge dismissed the lawsuit, noting that wrongful birth had never been recognized in Iowa. Friday’s decision orders a trial into whether the medical providers were negligent.

“The right to sue for wrongful birth belongs to parents who were denied the opportunity to make an informed choice whether to lawfully terminate a pregnancy in Iowa,” Justice Thomas Waterman wrote. “It is not this court’s role to second-guess that intensely personal and difficult decision. Parents of children with disabilities may find their lives enriched by the challenges and joys they confront daily. But under our tort law, financial compensation should be paid by the negligent physician if liability is proven.”

Waterman noted that the defendants argued that allowing such claims “would stigmatize the disabled community, encourage abortions, increase the cost of prenatal care, and result in fraudulent claims.”

“We are not persuaded those concerns warrant closing the courthouse door to parents harmed by medical negligence,” he wrote.

Dissenting Justice Edward Mansfield said the claim shouldn’t be allowed under Iowa law and the “ruling leads to a slippery slope.”

“Today’s decision is limited to a ‘severely disabled child.’ But the court does not define the term. What if testing indicates the child will be born blind or without a hand? Is that enough?” he questioned.

Baltimore attorney Wayne Willoughby, who represents the parents, said he was pleased the court “recognized the legal importance of requiring all physicians to adhere to a standard of care demanded by the medical profession itself.”

Attorney Nancy Penner, who represents the hospital and one of the doctors involved, said her clients were “obviously disappointed” but looking forward to defending themselves at trial.

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