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Failed Abortion Leads To Viable Claim For Wrongful Birth of Healthy Child.

By Greg Piche'

 In Dotson V. Bernstein, P.C., M.D., (Colo. App. , No. 08CA 0020 2009), the Colorado Court of Appeals reversed a non-suit granted by the District Court, to hold that Dionne Dotson had stated an actionable claim for negligence and damages against Dr. Dell L. Bernstein for the wrongful birth of a healthy child. as the result of a failed abortion. The court, while recognizing that the child would not have a claim for wrongful life, no matter how impaired or imperfect it might be, determined that the parent had a judiciable claim for foreseeable damages including medical expenses, pain and suffering and the medical complications resulting from the delivery.

 The big casino issue in these cases is whether the parent is entitled to the cost of raising the unwanted child.  Two of the panelists took a pass, waiting for development of the issue below, but in specially concurring in the decision, Judge Connelly weighed in that the answer should be no.

The majority concludes that as long as plaintiff is entitled to at least some relief, it is premature to decide whether she may also seek child-rearing expenses. But because a child?s existence cannot constitute a legally cognizable injury, and because the normal costs of rearing a child are inextricably intertwined with that existence, I would hold now that plaintiff is not entitled to damages for raising her healthy child.

His view  is consistent with most courts addressing the issue. See M. Pallesen, Note, Wrongful Pregnancy Actions: Should Courts Allow Recovery for Childrearing Expenses? 70 Neb. L. Rev. 361 (1991)(noting the multiple, distinct theories relied upon by different jurisdictions, within the majority view, in rejecting the recovery of the costs of raising the child).

Full post as published by Healthcare Law Blog on March 20, 2009 (boomark / email).