Portal de Periódicos da CAPES

Recovery of Damages for Wrongful Birth

2011; Taylor & Francis; Volume: 32; Issue: 2 Linguagem: Inglês

10.1080/01947648.2011.576616

1521-057X

Daniel W. Whitney, Kenneth N. Rosenbaum,

Ethics in medical practice

Click to increase image sizeClick to decrease image size Acknowledgments Mr. Whitney is the Managing Partner of Whitney & Bogris, LLP in Towson, Maryland. He has an extensive background in clinical laboratory professional liability claims. Dr. Rosenbaum, who is Board Certified in Pediatrics, Medical Genetics and Clinical Cytogenetics, is Director, Center for Prenatal Evaluation, Children's National Medical Center in Washington, D.C., and serves as the resident Medical Advisory Director of Whitney & Bogris. Notes See Fruiterman v. Granata, 668 S.E.2d 127, 132-33 (Va. 2008) (holding that expert testimony is needed to establish that CVS test, if performed, would have detected chromosomal abnormality). See, e.g., American College of Obstetricians and Gynecologists Committee on Practice Bulletins, ACOG Practice Bulletin No. 77: Screening for Fetal Chromosomal Abnormalities, 109 Obs. & Gyn. 217 (2007); American Society of Human Genetics, ASHG Statement on Direct-to-Consumer Genetic Testing in the United States, 81 Am. J. Human Genetics 635 (2007). See, e.g., Keel v. Banach, 624 So. 2d 1022 (Ala. 1993) (physician misinterpreted two sonograms, which revealed images that should have prompted an amniocentesis); Garrison v. Med. Ctr. of Del. Inc., 581 A.2d 288 (Del. 1988) (inexcusable delay in reporting the results of amniocentesis); Cauman v. George Washington Univ., 630 A.2d 1104 (D.C. 1993) (physicians misinterpreted results of amniocentesis). See Stewart-Graves v. Vaughn, 170 P.3d 1151, 1159 (Wash. 2007) (finding the right to terminate was based on the parents' constitutional right of reproductive autonomy); see also Roe v. Wade, 410 U.S. 113, 153 (1973) (finding the right to privacy conferred by the Constitution was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy"). See Grubbs ex rel. Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d 682, 690-91 (Ky. 2003). A "wrongful birth" cause of action has been recognized in each of the following jurisdictions: Alabama, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin. See Robak v. United States, 658 F.2d 471, 474-76 (7th Cir. 1981) (Alabama law); Liddington v. Burns, 916 F. Supp. 1127, 1133 (W.D. Okla. 1995) (Oklahoma law); Phillips v. United States, 508 F. Supp. 544, 551-52 (D.S.C. 1981) (South Carolina law); Walker v. Mart, 790 P.2d 735, 738 (Ariz. 1990) (dicta); Turpin v. Sortini, 643 P.2d 954, 965-66 (Cal. 1982) (dicta); Lininger v. Eisenbaum, 764 P.2d 1202, 1207 (Colo. 1988); Rich v. Foye, 976 A.2d 819, 824 (Conn. Super. Ct. 2007); Garrison, 581 A.2d at 290-92; Haymon v. Wilkerson, 535 A.2d 880, 886 (D.C. 1987); Kush v. Lloyd, 616 So. 2d 415, 422-24 (Fla. 1992); Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 705-06 (Ill. 1987); Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000) (recognizing the action sounding in medical negligence but rejecting the label "wrongful birth"); Arche v. United States Dep't of the Army, 798 P.2d 477, 480 (Kan. 1990); Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151, 1158 (La. 1988); Thibeault v. Larson, 666 A.2d 112, 115 (Me. 1995); Reed v. Campagnolo, 630 A.2d 1145, 1152 (Md. 1993); Viccaro v. Milunsky, 551 N.E.2d 8, 11 (Mass. 1990); Greco v. United States, 893 P.2d 345, 348, 350 (Nev. 1995) (recognizing action sounding in medical malpractice but rejecting the label "wrongful birth"); Smith v. Cote, 513 A.2d 341, 348 (N.H. 1986); Berman v. Allan, 404 A.2d 8, 14 (N.J. 1979); Becker v. Schwartz, 386 N.E.2d 807, 813 (N.Y. 1978); Flanagan v. Williams, 623 N.E.2d 185, 189 (Ohio App. 1993); Emerson v. Magendantz, 689 A.2d 409, 411 (R.I. 1997); Owens v. Foote, 773 S.W.2d 911, 913 (Tenn. 1989) (recognizing action sounding in medical malpractice but rejecting the label "wrongful birth"); Jacobs v. Theimer, 519 S.W.2d 846, 849-50 (Tex. 1975); Naccash v. Burger, 290 S.E.2d 825, 830 (Va. 1982); Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 493 (Wash. 1983); James G. v. Caserta, 332 S.E.2d 872, 882 (W. Va. 1985); Dumer v. St. Michael's Hosp., 233 N.W.2d 372, 377 (Wis. 1975). The cause of action has been rejected in Georgia, Idaho, Kentucky, Michigan, Minnesota, Missouri, North Carolina, and Pennsylvania. See Idaho Code Ann. § 5-334 (West 2010); Mich. Comp. Laws Ann. § 600.2971 (West 2010); Minn. Stat. Ann. § 145.424, Subd. 2 (West 2010) (constitutionality upheld in Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 13-15 (Minn. 1986)); Mo. Rev. Stat. § 188.130(2) (2010); 42 Pa. Cons. Stat. § 8305(a) (2010); Etkind v. Suarez, 519 S.E.2d 210, 212 (Ga. 1999); Grubbs, 120 S.W.3d at 689-91 (deciding that wrongful birth not recognized as a cause of action in tort, but breach of contract cause of action is available as to physician who negligently performed diagnostic prenatal testing); Taylor v. Kurapati, 600 N.W.2d 670, 691 (Mich. App. 1999). Even in these minority jurisdictions, some limited recognition of a right to tort recovery is given. See, e.g., Shelton v. St. Anthony's Med. Ctr., 781 S.W.2d 48, 50 (Mo. 1989) (damages for mother's emotional distress are not prohibited by statute); McAllister v. Ha, 496 S.E.2d 577, 583 (N.C. 1998) (damages for mother's emotional distress due to birth of child afflicted with a disease caused by medical negligence were recoverable); see also Gallagher v. Duke Univ., 852 F.2d 773, 776-77 (4th Cir. 1988) (interpreting North Carolina law). An action for wrongful birth differs from wrongful conception, which is not premised on abortion. Wrongful conception is recognized even in states that prohibit a cause of action for wrongful birth. See, e.g., Molloy v. Meier, 679 N.W.2d 711, 722-23 (Minn. 2004). Those jurisdictions include Alaska, Arkansas, Hawaii, Iowa, Mississippi, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Vermont, and Wyoming. "Wrongful birth" and "wrongful life" actions differ in that the wrongful birth action belongs to the parents while the wrongful life action is brought by or on behalf of the child. Twenty-seven jurisdictions refuse to recognize the wrongful life action. See Wills v. Wu, 607 S.E.2d 63, 68 & n.3 (S.C. 2004) (citing cases and statutes). Only three states have allowed such an action: California (Turpin, 643 P.2d at 965-66), New Jersey (Procanik v. Cillo, 478 A.2d 755, 757 (N.J. 1984)), and Washington (Harbeson, 656 P.2d at 494-95). Reed, 630 A.2d at 1145. Id. at 1147-48 (discussing Jones v. Malinowski, 473 A.2d 429 (Md. 1984)). Id. at 1148. Id. at 1146 (plaintiffs alleged that testing would have revealed elevated protein levels, indicative of an abnormal fetus, which would have led them to request amniocentesis). Id. at 1149. Id. (footnote omitted). Id. at 1150 (quoting Viccaro, 551 N.E.2d at 10 n.3). See id. at 1151-52. Id. at 1152. See, e.g., Schroeder v. Perkel, 432 A.2d 834, 841 (N.J. 1981) (showing that this disparity is generally conceded and noting that "[d]ivergent results of different courts or of different members of the same court reflect the complexity of the problem" posed by delineating the nature and extent of damages). Reed, 630 A.2d at 1151 (emphasis added) (citations omitted). See Reed, 630 A.2d at 1150 (decided in response to questions certified by the United States District Court for the District of Maryland); see also Reed v. Campagnolo, 810 F. Supp. 167, 172-73 (D. Md. 1993). Id. See, e.g., Gallagher, 852 F.2d at 777; Liddington, 916 F. Supp. at 1133; Phillips v. United States, 575 F. Supp. 1309, 1317 (D.S.C. 1983) (South Carolina law); Keel, 624 So. 2d at 1030; Turpin, 643 P.2d at 965; Lininger, 764 P.2d at 1208; Garrison, 581 A.2d at 292; Haymon, 535 A.2d at 886; Kush, 616 So. 2d at 423; Siemieniec, 512 N.E.2d at 706-07; Arche, 798 P.2d at 481; Thibeault, 666 A.2d at 114; Viccaro, 551 N.E.2d at 10; Greco, 893 P.2d at 349; Smith, 513 A.2d at 349-50; Bani-Esraili v. Lerman, 505 N.E.2d 947, 948 (N.Y. 1987); Emerson, 689 A.2d at 414; Jacobs, 519 S.W.2d at 850; Harbeson, 656 P.2d at 493; James G., 332 S.E.2d at 882; Dumer, 233 N.W.2d at 377; see also Me. Rev. Stat. tit. 24, § 2931(3) (2009) (limiting damages for "the birth of an unhealthy child born as the result of professional negligence" to those damages "associated with the disease, defect or handicap suffered by the child"); Thibeault, 666 A.2d at 115 (interpreting and applying the statute). Also note that many of the above-cited judicial decisions also limit the parents' recovery of damages to the extraordinary expenses that they will incur for the special medical, educational, and institutional needs of the impaired child. See Pitre, 530 So. 2d at 1162 (concluding that parents may not recover damages for special expenses regarding the child's deformity). See Walker, 790 P.2d at 739-40; Emerson, 689 A.2d at 414. See Walker, 790 P.2d at 738 (placing Arizona among the minority of eight jurisdictions which allow recovery of ordinary child-rearing costs in "wrongful pregnancy" actions and among only two jurisdictions considering the claim for such costs in the context of a wrongful birth action); see also Dumer, 233 N.W.2d at 377 (rejecting the claim in the context of a wrongful birth action under Wisconsin law). Emerson, 689 A.2d at 414. The subject of ordinary child-rearing costs was not addressed in some wrongful birth decisions; in others, no claim for such costs was presented by the parents. See, e.g., Lininger, 764 P.2d at 1207 n.8 (noting that the plaintiffs did not request damages for "the costs ordinarily associated with raising a healthy child," and the court need not "decide whether those costs may be recovered"); see also Viccaro, 551 N.E.2d at 11 (noting that the plaintiffs did not "press a claim for all financial burdens associated with raising" their child). See, e.g., Liddington, 916 F. Supp. at 1133; Phillips, 575 F. Supp. at 1316; Keel, 624 So. 2d at 1030; Garrison, 581 A.2d at 291; Haymon, 535 A.2d at 884; Kush, 616 So. 2d at 417 n.2; Siemieniec, 512 N.E.2d at 706; Arche, 798 P.2d at 481; Pitre, 530 So. 2d at 1162; Smith, 513 A.2d at 350; Bani-Esraili, 505 N.E.2d at 948; Jacobs, 519 S.W.2d at 849; Harbeson, 656 P.2d at 494; James G., 332 S.E.2d at 882; Dumer, 233 N.W.2d at 377. Smith, 513 A.2d at 349-50 (citations omitted). Smith, 513 A.2d at 350 (citations omitted). Schroeder, 432 A.2d at 841. See Viccaro, 555 N.E.2d at 11. Jones, 473 A.2d at 436-37 (citation omitted). Jones, 473 A.2d at 435. Restatement (Second) of Torts § 920 (1979). McKernan v. Aasheim, 687 P.2d 850, 855 (Wash. 1984). See, e.g., Lovelace Med. Ctr. v. Mendez, 805 P.2d 603, 613-14 (N.M. 1991) (applying emotional benefits to economic loss did not equate to an application of similar benefits to similar losses); Marciniak v. Lundborg, 450 N.W.2d 243, 249 (Wis. 1990). Smith v. Gore, 728 S.W.2d 738, 743 (Tenn. 1987). William Lloyd Prosser & W. Page Keeton, Law of Torts § 55, at 371 n.48 (5th ed. 1984) (citations omitted); see also Atlanta Obs. & Gyn. Group v. Abelson, 398 S.E.2d 557, 565 (Ga. 1990) (Smith, J., dissenting) (expressing strong dismay over the prospect of offsetting the economic damages by the benefits derived from raising an impaired child, noting that the court "would not even consider the theory that the joy of parenthood should offset the damages," where a child was born impaired because of a failure to diagnose a problem at delivery, and that "[t]here is no more joy in an abnormal fetus come to full term than a normal fetus permanently injured at delivery," as "[b]oth are heartbreaking conditions that demand far more psychological and financial resources that [sic] those blessed with normal children can imagine."). Schroeder, 432 A.2d at 842; see also Turpin, 643 P.2d at 965-66 (stating that "permitting plaintiff to recover the extraordinary, additional medical expenses that are occasioned by the hereditary ailment is also consistent with the established parameters of the general tort 'benefit' doctrine" because the "negligence has conferred no offsetting benefit to this interest of plaintiff"); see also Lininger, 764 P.2d at 1207 (finding that "the extraordinary financial burden the Liningers claim to have suffered, and will continue to suffer, is sufficiently unrelated to the pleasure they will derive from raising Pierce as to preclude operation of the benefit rule, at least to the extent that it would require some offset against those particular damages"); Garrison, 581 A.2d at 292; Haymon, 535 A.2d at 885 (positing that the emotional benefit of having a child does not come into play at all in calculating damages for extraordinary medical costs); Arche, 798 P.2d at 482 (determining that the "benefit rule" should not be applied to wrongful birth cases because "[t]he special costs of caring for a disabled child are not logically subject to any offset in themselves"). See, e.g., Viccaro, 551 N.E.2d at 12 (noting that "[w]hatever emotional benefits the parents may derive from the children may also be offset against the extraordinary expenses the parents may incur"). Emerson, 689 A.2d at 409. Id. at 414. Id. at 1316 (citations omitted). Phillips, 575 F. Supp. at 1309 (where a defendant presented evidence concerning the facilities and services available to the parents at no cost through the South Carolina Department of Mental Retardation and other federal and state agencies). See Plank v. Summers, 102 A.2d 262, 266-67 (Md. 1954) (commenting that the majority of cases hold that "where hospital and medical services are furnished gratuitously to the injured party, he can recover the value of those services from the tort feasor"). Johns Hopkins Hosp. v. Pepper, 697 A.2d 1358, 1369 (Md. 1997). See Phillips, 575 F. Supp. at 1316. See, e.g., Md. Code Ann., Health-Gen. §§ 16-101(c)(2), 16-202, 16-203(a)(2) (West 2011). See id. §§ 16-101, 16-102(a); see also Sininger v. Sininger, 479 A.2d 1354, 1359 (Md. 1984) (noting that in enacting the legislation later codified as these statutory provisions, the Maryland General Assembly stated its purpose to be "to remove the liability of parents for payment toward the cost of [State-provided] care for their adult children"). Many cases fail to address the question of post-majority costs for obvious reasons, such as the child dying in infancy, being put up for adoption, or the parents limiting their claims to pre-majority costs. See, e.g., Liddington, 916 F. Supp. at 1141 (noting that there was "no issue in this case as to whether a plaintiff may recover such damages after the child reaches the age of majority"); see also Keel, 624 So. 2d at 1023 (child died at age six); Cauman, 630 A.2d at 1105 (child put up for adoption at age 10 months); Haymon, 535 A.2d at 885-86 (deciding that "whether recovery should be limited to those expenses incurred during the child's minority or should extend into majority where a child is incapable of self-caring" is a matter to be resolved by the trial court in the first instance); Siemieniec, 512 N.E.2d at 706-07 (declining to reach the question of post-majority costs by emphasizing that "the plaintiffs here seek to recover only those extraordinary expenses that will be incurred prior to the child's reaching his majority"); Goldberg v. Ruskin, 471 N.E.2d 530, 532 n.2 (Ill. App. 1984) (child born with life expectancy of two to four years); Naccash, 290 S.E.2d at 827 (child died at age two). See, e.g., Robak, 658 F.2d at 478; Basten v. United States, 848 F. Supp. 962, 972 (M.D. Ala. 1994) (applying Alabama law); Phillips, 575 F. Supp. at 1317; Walker, 790 P.2d at 741; Lininger, 764 P.2d at 1207 n.8; Kush, 616 So. 2d at 424; Siemieniec, 512 N.E.2d at 706; Viccaro, 551 N.E.2d at 11; Smith, 513 A.2d at 350; Emerson, 689 A.2d at 414; James G., 332 S.E.2d at 882. See, e.g., Garrison, 581 A.2d at 292; Clark v. Children's Mem'l Hosp., 907 N.E.2d 49, 55-57 (Ill. App. 2009); Greco, 893 P.2d at 350. See, e.g., Arche, 798 P.2d at 482-86 (holding that extraordinary expenses are to be calculated on the basis of child's specific life expectancy or age of majority, whichever is the shorter period; Kansas statutes no longer require a parent to support an adult incompetent child); Bani-Esraili, 505 N.E.2d at 948 (deciding that parents are limited to recovering extraordinary expenses incurred in treatment of child during minority, because parents have no legal obligation under New York statutory law to support child after majority). See, e.g., Smith v. Smith, 176 A.2d 862, 865 (Md. 1962). See Md. Code Ann., Fam. Law § 5-203(b)(1) (West 2010) ("The parents of a minor child … are jointly and severally responsible for the child's support, care, nurture, welfare, and education"). Smith, 176 A.2d at 865; see also Sininger, 479 A.2d at 1357. Md. Code Ann., Fam. Law § 13-102(b). Id. § 13-101(b). Presley v. Presley, 500 A.2d 322, 328 (Md. Ct. Spec. App. 1985) (emphasis in original). See Johns Hopkins, 697 A.2d at 1366 n.9. Craig v. State, 155 A.2d 684, 688 (Md. 1959) (citations omitted). See Stern v. Stern, 473 A.2d 56, 63 (Md. Ct. Spec. App. 1984) (deciding that an adult child born with cystic fibrosis, who had medical expenses of $150,000 per year, had never held full-time employment, and had never been free from economic dependence on his parents was "destitute"). Pepper v. Johns Hopkins Hosp., 680 A.2d 532, 543 (Md. Ct. Spec. App. 1996), aff'd, 697 A.2d 1358 (Md. 1997). Johns Hopkins, 697 A.2d at 1366 (citations omitted). Bankert v. United States, 937 F. Supp. 1169 (D. Md. 1996) (applying this principle). Bankert was not a wrongful birth case, but involved medical negligence in the delivery of a normal child resulting in injuries to the mother and cerebral palsy and developmental disabilities in the child. Id. at 1179. The child was only four years old at the time of trial, but the court refused to project future noneconomic damages beyond the next five years because damages beyond that time period were not shown to be reasonably probable. Id. at 1186. Judge Williams explained: With the possible exception as to the need for continuous and supplemental therapeutic services, the Court cannot find that plaintiffs have established to a reasonable degree of probability entitlement to the individualized life care plan for Ariel Bankert [the child] outlined by Dr. Sheryl Ranson. Dr. Ranson's conclusions (that it is unlikely that Ariel will be gainfully employed in the competitive labor market, will likely be in some sheltered program or in a supported employment program, and will likely require respite long term care and supported living assistance) are no more than conjuncture and sheer speculation. The assumptions and conclusions taken by Dr. Ranson are based upon a negative or "worst scenario." As Kimberly Bankert [the mother] testified we "don't know what is going to happen to Ariel." The Court likewise is not in a position to predict. Id. at 1185. See, e.g., Basten, 848 F. Supp. at 972; Phillips, 575 F. Supp. at 1317; Kush, 616 So. 2d at 424; Viccaro, 551 N.E.2d at 11; Smith, 513 A.2d at 350; Emerson, 689 A.2d at 414. See, e.g., Lininger, 764 P.2d at 1207 n.8 (holding that parents must prove that child will be dependent on them beyond age of majority); Garrison, 581 A.2d at 292 (deciding that "parents may recover damages measured by the life of the child or the child's life expectancy to the extent she remains dependent upon either or both of her parents"); Greco, 893 P.2d at 350 (concluding that extraordinary expenses associated with an adult child's care may be recovered "for whatever period of time it is established that [adult child] will be dependent upon [parent] to provide such care"). Gallagher, 852 F.2d at 778 (citation omitted). But see also Viccaro, 551 N.E.2d at 13 (stating in dicta: "[w]e do not totally discount the possibility that we might impose liability for the extraordinary expenses of caring for a person like Adam after his parents' deaths, perhaps in order to keep such a person from being a public charge."); see also Basten, 848 F. Supp. at 972 (imposing such liability after expressly rejecting a defense contention that recoverable expenses should end when the parents die, stating that "parents devoted to a severely handicapped child would surely feel obligated to provide for that child's extraordinary needs that continue to exist after the parents have died" and that because the parents "could reasonably be expected to save to provide for the child, these expenses are recoverable"). See Taxiera v. Malkus, 578 A.2d 761, 764 (Md. 1990) (holding that parent's estate not liable for continuing child support); Stern v. Horner, 324 A.2d 134, 136 (Md. Ct. Spec. App. 1974) (providing that "[p]arenthood is a status which survives divorce and is terminable only by death or adoption"). Bader v. Johnson, 675 N.E.2d 1119, 1123 (Ind. App. 1997), transfer granted, 690 N.E.2d 1183 (Ind. 1997). Schroeder, 432 A.2d at 840 (citation omitted); see also Goldberg, 471 N.E.2d at 538; Smith, 513 A.2d at 354; Becker, 386 N.E.2d at 813. Contra Kush, 616 So. 2d at 424 (finding that parents' claims for extraordinary damages are asserted as guardians of the best interests of an impaired child, so the claims "essentially are derivative"). Hudson v. Hudson, 174 A.2d 339, 343 (Md. 1961) (citations omitted). Walker, 790 P.2d at 741; see also Atlanta Obstetrics, 398 S.E.2d at 562 (citing this factor as a reason for refusing to recognize a wrongful birth cause of action and commenting that "once parents have obtained recovery of such [extraordinary child-care] expenses, there is no assurance that the funds will be expended on behalf of the child"). Robak v. United States, 503 F. Supp. 982 (N.D. Ill. 1980), aff'd in part, rev'd in part, 658 F.2d 471 (7th Cir. 1981) (deciding that the monetary award—$900,000 total, $450,000 to each parent—for past and future maintenance and support of the child should not be paid in one lump sum); see also Phillips, 575 F. Supp. at 1320 n.10 (ordering the parents to submit a plan to effectuate their intentions to preserve the net economic award for the use and benefit of their son). Robak, 503 F. Supp at 983. See, e.g., Kush, 616 So. 2d at 424 (prompting the trial court to require that extraordinary expenses of caring for child during his minority and beyond be properly identified, segregated, and placed in trust for the child's benefit, with parents acting as trustees to ensure that the funds are properly administered); Arche, 798 P.2d at 486-87 (suggesting reversionary trust for benefit of child to prevent parents from recovering damages and escaping the expenses; upon child's death, remaining funds to be returned to defendant). Garrison, 581 A.2d at 292. Arche, 798 P.2d at 486. Id. at 488 (Six, J., concurring). Id. § 11-109(c). See Md. Code Ann., Cts. & Jud. Proc. § 11-109(b)(2) (West 2010). Id. Id. § 11-109(d). See, e.g., Bankert, 937 F. Supp. at 1184; Green v. Zendrian, 916 F. Supp. 493, 499 (D. Md. 1996) (dicta). See Reed, 630 A.2d at 1151 (citing Naccash, 290 S.E.2d at 830-31 (allowing recovery of emotional distress damages) and Harbeson, 656 P.2d at 496-97 (also allowing recovery of emotional distress damages)); see also Gallagher, 852 F.2d at 778-79; Liddington, 916 F. Supp. at 1142; Basten, 848 F. Supp. at 978-79; Phillips, 575 F. Supp. at 1318; Keel, 624 So. 2d at 1030; Rich, 976 A.2d at 830; Kush, 616 So. 2d at 422-23; Pitre, 530 So. 2d at 1162 (deciding that recoverable emotional distress or mental anguish damages are limited to parents' emotional distress associated with the birth and the unexpected restriction upon their freedom to plan their family); Viccaro, 551 N.E.2d at 11; Shelton, 781 S.W.2d at 50; Greco, 893 P.2d at 351; Smith, 513 A.2d at 350 (allowing recovery only to the extent that tangible pecuniary losses result from emotional distress); Speck v. Finegold, 439 A.2d 110, 116-17 (Pa. 1981) (op. of Roberts, J.); Emerson, 689 A.2d at 414; Owens, 773 S.W.2d at 913. See, e.g., Phillips, 575 F. Supp. at 1318-19; Kush, 616 So. 2d at 422; Naccash, 290 S.E.2d at 831. See, e.g., Gallagher, 852 F.2d at 779 (determining that emotional distress as a result of giving birth to and raising a handicapped child is a reasonably foreseeable result of negligence); Basten, 848 F. Supp. at 973 (finding that "damages include the shock of learning of this child's abnormality"); Phillips, 575 F. Supp. at 1318-19 (finding that emotional distress damages are recoverable when accompanied by physical symptoms or when they are naturally the proximate result of negligence and accompanied by other recoverable damages such as economic losses); Keel, 624 So. 2d at 1030 (noting that defendants' failure to inform parents of the risks and depriving them of the option to accept or reject a parental relationship with the child "caused [plaintiffs] to experience marital and emotional anguish upon the realization that they had given birth to a child afflicted with severe congenital abnormalities"); Andalon v. Superior Court, 208 Cal. Rptr. 899, 905 (Cal. App. 1984) (viewing parents as not mere bystanders, but instead as direct victims of the malpractice whose emotional harm was foreseeable); Kush, 616 So. 2d at 422-23 (commenting that an emotional injury is likely to occur when medical advice leads parents to give birth to a severely impaired child and damages may be recovered even if there is no "impact" or physical harm); Viccaro, 551 N.E.2d at 11 (concluding that the emotional distress the parents sustain as a result of the negligence and any physical harm caused by that emotional distress are recoverable); Shelton, 781 S.W.2d at 50 (upholding a claim for mental distress resulting "from the shock of discovering the defects in the baby at birth without being adequately advised of the deformities and prepared for this catastrophe," which constitutes harm attributable to defendants' negligence); Greco, 893 P.2d at 351 (stating that "it is reasonably foreseeable that a mother who is denied her right to abort a severely deformed fetus will suffer emotional distress, not just when the child is delivered, but for the rest of the child's life"); Speck, 439 A.2d at 117 (deciding that emotional distress is a foreseeable risk within the contemplation of the parties); Naccash, 290 S.E.2d at 831 (advising that the wrongful birth case is an "exception to the general rule that damages for emotional distress are not allowable unless they result directly from tortiously caused physical injury"; the parents were not "mere witnesses" to the consequences of tortious conduct and their emotional distress following the birth of their defective child was a direct result of that conduct); Harbeson, 656 P.2d at 494 (positing that "the damages may compensate for mental anguish and emotional [d]istress suffered by the parents during each child's life as a proximate result of the physician's negligence"). Basten, 848 F. Supp. at 973. See Smith, 513 A.2d at 350-51. See, e.g., Pitre, 530 So. 2d at 1162 (finding that parents may recover damages for their emotional distress associated with their unexpected restriction upon their freedom to plan their family, but not "for emotional and mental distress associated with the child's deformity"); see also Liddington, 916 F. Supp. at 1142 (deciding that parents may not recover for mental anguish suffered on account of their child's birth defects, but may recover for mental anguish on account of being deprived of their right to decide whether to bear a child with genetic defects). See, e.g., Garrison, 581 A.2d at 293; Cauman, 630 A.2d at 1106-07; Siemieniec, 512 N.E.2d at 707; Arche, 798 P.2d at 482; Becker, 386 N.E.2d at 814; Jacobs, 519 S.W.2d at 849 (recognizing the wrongful birth cause of action but denying recovery of emotional distress damages). See, e.g., Lininger, 764 P.2d at 1207 (expressly declining to decide whether general damages for emotional distress may be recovered in a wrongful birth case). Note, however, that of the jurisdictions that have considered the subject of emotional distress damages, seven deny recovery of such damages. Decisions in only 14 jurisdictions (Alabama, California, Florida, Massachusetts, Michigan, Missouri, Nevada, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Carolina, Virginia, and Washington) ever allowed emotional distress damages without substantial qualification. Four other jurisdictions (Idaho, Louisiana, New Hampshire, and Oklahoma) imposed limits on the extent of recovery. Because of statutory prohibitions on wrongful birth actions now in effect in Idaho, Michigan, Minnesota, Missouri, and Pennsylvania, the precedential value of judicial decisions from those jurisdictions is absent. Emotional distress damages are freely recoverable for wrongful birth in only 11 jurisdictions; they are either disallowed or limited in 10 other jurisdictions that recognize the cause of action. See, e.g., Garrison, 581 A.2d at 293 (deciding that claim of damages for emotional distress is unfounded because there is "no present and demonstrable physical injury to plaintiff."); Cauman, 630 A.2d at 1106-07 (holding that damages for emotional distress are not recoverable without some accompanying physical injury, unless the plaintiff was placed in a zone of physical danger and feared for his own safety; foreseeability of the risk of emotional distress will not alone suffice); Siemieniec, 512 N.E.2d at 707 (applying "zone-of-danger" rule; damages for emotional distress are not recoverable where there were no allegations that defendant's negligence endangered the parents of the impaired child or that the parents suffered physical inj