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Oklahoma Supreme Court allows parents to seek damages in wrongful birth suit

Justices in a split decision rule the couple may seek monetary damages only for extraordinary expenses of raising the child, now 4, who was infected with a rare virus. The parents said they would have terminated the pregnancy had they been told the child had been exposed.
BY MICHAEL MCNUTT Published: July 7, 2011

The parents of a child born with a severe infection may recover damages for the costs associated with the child's ongoing care, the state Supreme Court ruled Wednesday.

The high court in a 5-3 ruling, with Vice Chief Justice Tom Colbert not participating, said economic damages may be awarded “only for extraordinary expenses, not the normal and foreseeable costs of raising a normal, healthy child, for the period of time of the child's life expectancy or until the child reaches the age of maturity (18 years old), whichever is the shorter period.”

An Enid couple, Patricia and Brian Shull, are not eligible to be awarded monetary damages for emotional distress because the child's injury “occurred without human fault during development of the fetus,” the opinion by Justice Douglas Combs states.

The ruling sends the wrongful birth lawsuit back to Oklahoma County District Court and a likely jury trial.

The Shulls filed the lawsuit in 2009 against the OU Medical Center and four doctors. They claim they would have terminated the pregnancy had they been told the mother had a virus that led to the child being born with the infection and being permanently helpless.

The litigation was filed a year before legislation was passed into law that would prohibit so-called “wrongful life” and “wrongful birth” lawsuits against doctors from withholding information about a fetus or pregnancy that could cause a woman to seek an abortion.

The justices mentioned the Oklahoma law but noted it was passed after the child's birth and does not apply retroactively.

Kyle Sweet, an attorney for Drs. Monica Reid, Andrew Elimian, Andrew Wagner and Eric Knudston, said he is disappointed the Supreme Court didn't make a decision consistent with the intent of legislators.

“The Legislature made it pretty clear that they don't want wrongful life cases to be brought in our state,” Sweet said. “The issue is that the Legislature did not make it retroactive. That's why the Supreme Court had the wriggle room to make the decision that they did.”

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