On Wednesday, the Oklahoma Supreme Court addressed a question submitted to the Court on an interlocutory appeal of summary judgment granted by the trial court. The question submitted to the Court was what damages were available to a couple who was not informed of a disabling disease their unborn baby contracted and thus brought the child to term. The couple argued that had they been informed they would have terminated the pregnancy. The trial court suggested to the couple that it grant summary judgment on the matter of damages to the defendant, and that the couple appeal the decision to the Court. The trial court granted defendant’s motion for summary judgment limiting damages to the cost of carrying the baby to term, less the cost for an abortion.
On appeal, the Court turned to Kansas Supreme Court case-law for guidance. In a substantially similar matter, the Kansas court ruled that Kansas law supported a cause of action for improper birth where the child was disabled, but that damages were limited to those “caused by the child’s handicaps…not those expenses natural to raising any child” Arche v. Unites States of America, Department of the Army, 247 Kan. 276, 798 P.2d 477 (KS 1990)(citations omitted). The Oklahoma court further agreed with the Kansas court that no action for tortious injury (such as emotional distress) existed. The court further limited recover to “period of time of the child’s life expectancy or until the child reaches the age of majority, whichever is the shorter period.” citing id. at 291.
The Court, while granting “extraordinary medical expenses and other pecuniary losses” damages to the plaintiff, noted that the Oklahoma Legislature passed a law, 63 O.S. § 1-741.11 (2008), that directly addressed the issue of damages the Court just decided. Their holding only applies to births prior to the enactment of the law as the Court ruled the law would not apply retrospectively. Thus the Court’s holding, while one of first impression, is also likely one of last impression.
The new Oklahoma law would prevent a parent or guardian, who is required to support a child, from recovering damages for a condition that existed at the time of birth that would have caused the parent to terminate the pregnancy. Note: the cite by the Court, 1-741.11 was repealed effective Apr. 27, 2010, however, the next subsection, 1-741.12 was enacted at the time of the repeal, replacing the law cited by the court and expanding it slightly. See 63 O.S. § 1-741.12.
Opinion:
COMBS, J., Shull v. Reid, 2011 OK 72
