Kansas Supreme Court rules against parents who claim doc failed to tell them of baby’s birth defects

Published: Apr. 30, 2021 at 11:47 AM CDT
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TOPEKA, Kan. (WIBW) - A state law abolishing a medical malpractice claim known as a “wrongful birth” action has been upheld by a divided Kansas Supreme Court.

In court papers, Alysia R. Tillman and Storm Fleetwood say they would have terminated their pregnancy if the ultrasound results were accurately reported. They sued physician Katherina A. Goodpasture, D.O, claiming that her negligence deprived the mother of her right to make an informed decision about her options.

The decision by Kansas’ high court affirms a Riley County District Court’s dismissal of the lawsuit. Tillman and Fleetwood’s child was born with severe, uncorrectable neurological, cognitive, and physical impairments. In the majority opinion written by Justice Dan Biles, the Supreme Court agreed that the constitutional right to a jury trial and to a remedy did not prevent the state Legislature from eliminating the Previously available right to sue in this instance, according to a news release from the court.

On behalf of the majority, Justice Biles wrote: “The wrongful-birth cause of action is not just a different application of the traditional medical malpractice tort. It is a new species of malpractice action first recognized in 1990.”

A statute barring these types of lawsuits was passed by the Kansas Legislature in 2013. Previously, they had been recognized as viable claims in a 1990 Kansas Supreme Court Decision. In his opinion, Justice Caleb Stegall wrote a concurring opinion arguing that the 1990 decision should be overruled, avoiding the constitutional questions the court faced in this case.

The parents argued that the 2013 law violated their rights to a jury trial and to a remedy under the Kansas Constitution. A Riley County District Court judge ruled the statute constitutional and dismissed the case.

Like Stegall, two other justices wrote separately. Chief Justice Marla Luckert dissented as did Justice Eric Rosen. Luckert argued that medical malpractice actions existed when the state constitution was adopted, so the 2013 statute violated plaintiffs’ right to a jury trial.

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