Kansas couple asks state supreme court to void 2013 law barring wrongful birth lawsuits
In 2014 Alysia Tillman gave birth to a child with a severe neurological abnormality. A defect that, according to her attorney, would leave the child with a very short life expectancy and inability to function independently.
The child’s condition, Tillman’s attorney argues, should have been diagnosed in utero by the couple’s doctor, allowing the parents to decide whether they wanted to terminate the pregnancy. Because it wasn’t, Tillman and the baby’s father sued their doctor, Katharine Goodpasture, in 2016 claiming her medical negligence denied them an opportunity to make an informed decision.
Four years later, their case will be heard by the Kansas Supreme Court on Wednesday. It will determine whether a 2013 law that shields doctors from liability in wrongful birth cases, signed by then-Gov. Sam Brownback, is unconstitutional.
According to court filings, 26 states recognize wrongful birth lawsuits. In recent years, however, several states have adopted laws similar to the Kansas statute.
The outcome of the case could clear the way for other such actions to be filed in district courts across Kansas.
Misdiagnosis
According to legal filings, on January, 24, 2014, Goodpasture told Tillman and Storm Fleetwood that an ultrasound showed a healthy, female fetus with no abnormalities. In reality, the couple’s attorney Lynn Johnson said in court papers, the ultrasound showed deformities and defects in the brain of the fetus.
The child, the filing said, has schizencephaly - a rare birth defect that causes developmental delays, delays in speech and language and problems with brain-spinal cord communication.
Tillman gave birth in May 2014 to a child who “will never be able to function with normal neurological, cognitive or physical activity.” The child, the filing said, will require various therapies and special care because she is unable to “perform activities of daily living.”
The couple’s lawsuit, arguing that they should be able to sue their doctor for damages because they could not make an informed decision, was rejected in district and appellate court in Kansas. Their petition to have the case heard by the state Supreme Court was accepted last year.
If the supreme court determines that the couple has a constitutional right to sue, their case will be sent back to the district court where the facts of the case will be argued.
Johnson, the couple’s attorney, declined to make Tillman or Fleetwood available for an interview, saying the couple prefers to remain private. He said the case was important because it protects a woman’s right to choose whether or not to carry a child to birth or terminate a pregnancy.
“That right is there and so a potential mother has the right to make the decision that she does not want to bring into this world a child that is so horribly damaged that the child will have a very short life expectancy and will never be able to not only not take care of themselves but not even function,” Johnson said.
The Kansas Attorney General’s Office and Goodpasture’s attorney declined to comment on the pending litigation.
Jean Gawdun, government relations director for Kansans for Life, said lawsuits such as Tillman and Fleetwood’s demean the value and dignity of the lives of disabled people.
“What they’re saying is that the birth of the child is the injury,” Gawdun said. “We should not send a message that any human life is less valuable than any other.”
Kansans for Life advocated for the passage of the ban on wrongful birth lawsuits in 2013.
Constitutional arguments
According to pleadings, the right to sue for wrongful birth — when parents do not have adequate information about potential medical abnormalities of their child — was established in Kansas as common law basis for medical malpractice or negligence claims by a 1990 state supreme court case.
Common law is unwritten law established by precedent through court cases.
The 2013 law, however, superseded that ruling and barred such lawsuits.
Johnson, who represents Tillman and the child’s father Storm Fleetwood, says this action by the Kansas Legislature was illegal.
“Legislature is not empowered to abolish a common law cause of action,” Johnson said.
He contends that the Kansas Bill of Rights guarantees the right to trial by jury and to seek legal remedies in claims involving common law.
The Kansas Attorney General and Katharine Goodpasture’s attorneys refute Johnson’s claim in filings. They argue that wrongful birth is not, in fact, a common law medical negligence claim because it was not recognized when the Kansas Constitution was signed.
“Only those actions that existed at common-law in 1859 are constitutionally protected,” the Attorney General’s office said in its brief.
Although the 1990 supreme court case established wrongful birth as a common law claim, the office argued, it is still within the legislature’s power to bar future lawsuits on the matter.
In separate briefs, Johnson argues that wrongful birth would not be a new common law claim but instead a subset of negligence claims that were recognized in 1859.
