The Oregon Supreme Court recently accepted review of a case that could have far-reaching implications for those in the medical community in Oregon. In Tomlinson v. Metropolitan Pediatrics, LLC, the Supreme Court is poised to rule on three questions:
- Can a physician be sued for medical malpractice (specifically, negligent failure to diagnose a patient) by a third party, such as a parent, who has never been a patient of the defendant-physician?
- Can a person sue for emotional distress damages caused by medical malpractice in the absence of a physical impact or a heightened and specific duty by the defendant-physician to protect the plaintiff from emotional harm?
- If defendant-physicians are alleged to have negligently failed to diagnose a genetic disorder in a child, with the consequence that the parents of the child gave birth to a sibling with the same genetic disorder who will experience a life of progressive incapacity and a premature death, does the sibling have a viable claim for compensation for his physical and mental suffering and the post-majority expense of his care resulting from the genetic disorder?
Kerry and Scott Tomlinson, an Oregon couple, have two sons, Manny and Teddy. Manny, the elder son, was born with a rare genetic condition, which went undiagnosed at the time of his birth. Teddy was later born with the same condition.
Kerry and Scott, as well as Teddy, then filed suit against the children’s medical providers. Plaintiffs argued that the providers breached the professional standard of care that they owed to Manny by failing to diagnose him with his genetic condition, failing to inform Manny’s parents of that condition, and failing to inform the parents of the reproductive risks associated with having a second child. Plaintiffs alleged that as a foreseeable result of that breach, the parents conceived and bore Teddy, who suffers from the same genetic condition. The parents’ claims were therefore styled as wrongful birth, while Teddy’s claim was wrongful life.
All three plaintiffs alleged resulting damages. The parents sought $5 million each in noneconomic damages, and approximately $1 million in economic damages for Teddy’s future care. Teddy sought $10 million in noneconomic damages and $2 million in economic damages.
Trial Court Decision
Defendants moved to dismiss the complaint on the grounds that: (1) no physician-patient relationship existed between plaintiffs and defendants; (2) the parents had failed to adequately allege causation on their claim for wrongful birth; (3) the parents could not seek emotional distress damages from defendants without pleading and proving physical impact; and (4) Oregon law does not support a claim for claim for “wrongful life,” so Teddy’s claim failed as a matter of law. The trial court agreed with defendants’ arguments and granted their motions to dismiss the case. Plaintiffs appealed.
Court of Appeals Decision
The Court of Appeals reversed the trial court, in part,[i] holding that (1) the parents stated a claim for relief under established negligence principles in Oregon, notwithstanding the lack of a physician-patient relationship between plaintiffs and defendants; (2) the parents adequately alleged causation; and (3) the parents could seek emotional distress damages from defendants without alleging and establishing physical impact. However, the Court of Appeals affirmed the dismissal of Teddy’s claim of wrongful life because he failed to allege legally cognizable damages.
Physician-Patient Relationship Issue
The Court of Appeals held that the existence of a physician-patient relationship was not a prerequisite to recovery for negligent failure to diagnose. The Court characterized the question before it as “whether nonpatients who allege that they were foreseeably harmed as a result of a physician’s breach of a standard of care are categorically foreclosed from asserting a negligence claim against the physician.”[ii] By framing the issue in this way, the Court had little difficulty concluding that Oregon law does not categorically foreclose negligence claims against Oregon physicians on the grounds that no physician-patient relationship existed. As support for its conclusion, the Court cited to Zavalas v. Dept. of Corrections,[iii] a case where it allowed a negligence claim against a physician by a nonpatient who claimed that the physician had negligently prescribed Xanax to a patient who was then involved in an auto accident.
Wrongful Birth Causation Issue
The Court of Appeals found that the parents had adequately alleged causation because they had alleged that, but for defendants’ failure to diagnose Manny with the genetic condition and inform them of his condition and their reproductive risks, they would not have produced another child suffering from the same condition. The Court concluded that those allegations directly linked defendants’ conduct to the injury that the parents suffered: namely, the infringement of their interest in making informed reproductive choices and avoiding conceiving or bearing Teddy.
Emotional Distress Damages Issue
The parents sought emotional distress damages associated with conceiving and bearing Teddy, notwithstanding the fact that they suffered no injury that could be considered physical impact under the rule.[iv] The Court of Appeals held that the parents’ claims fell within a narrow exception to the physical impact requirement, which permits a plaintiff to recover for purely psychic injury where the defendant’s conduct infringed on some legally protected interest apart from causing the claimed distress. The Court of Appeals held that the parents had adequately alleged that defendants had infringed on their legally protected interests in making informed reproductive choices because the parents had alleged that they unknowingly conceived and bore a child with a severe genetic defect, and that, had defendants timely diagnosed Manny’s condition, the parents would not have produced another child suffering from the same condition. The Court found these allegations sufficient to support a claim for emotional distress damages. In support of this conclusion, the Court found that the parents had adequately alleged the existence of a special relationship between Manny’s physicians and themselves, although they had no physician-patient relationship with Manny’s physicians. Specifically, the Court pointed to a Minnesota Supreme Court case in which that Court found “‘a physician’s duty regarding genetic testing and diagnosis extends beyond the patient to biological parents who foreseeably may be harmed by a breach of that duty[.]’”[v]
Wrongful Life Issue
Finally, the Court of Appeals held that Oregon law does not currently support a claim for wrongful life, and therefore affirmed dismissal of Teddy’s claim. The Court concluded that it would be impossible to measure damages because a trier of fact would be required to compare the value of nonexistence with the value of life accompanied by the genetic disorder.
Both Parties Petition for Review
Defendants sought review of the Court of Appeals’ holding that (1) plaintiffs need not allege and establish the existence of a physician-patient relationship before they may recover from defendants for negligent failure to diagnose; and (2) plaintiffs may seek emotional distress damages from defendants without alleging or establishing physical impact. Review was granted.
Teddy sought review of the Court of Appeals’ ruling that he failed to state a claim for relief on the grounds that Oregon law does not recognize his claim because it would be impossible for a jury to determine damages on such a claim. The Supreme Court accepted review of the trial court decision on the issue of whether Oregon law supports a claim for wrongful life, but phrased the issue as: “If defendants are alleged to have negligently failed to diagnose a genetic disorder in a child, with the consequence that the parents of the child gave birth to a sibling with the same genetic disorder, who will experience a life of progressive incapacity and a premature death, does the sibling have a viable claim for compensation for his physical and mental suffering and the post-majority expense of his care resulting from the genetic disorder?” In essence, the question is whether Oregon law supports a claim for wrongful life under these facts.
The implications of this case are obvious and cannot be overstated. The Supreme Court’s decision has the potential to expose Oregon medical providers to liability for emotional distress damages to plaintiffs with whom they had no professional relationship. For instance, such a ruling may pave the way for a claim seeking emotional distress damages against an Oregon medical provider by family members of an elderly patient, asserting that the provider’s failure to properly diagnose caused the patient’s injury or death.
The Supreme Court could also open the way for claims for wrongful life, the limits to which are presently unknown. At the least, it could mean that with every claim for wrongful birth premised on the failure to advise the parents of some kind of defect, Oregon medical providers may now face claims for wrongful life as well. In essence, it doubles their exposure. For instance, in Teddy’s claim against defendants, he sought the same amount in noneconomic damages ($10 million) as both of his parents combined sought in their claims for wrongful birth, and over twice as much in economic damages ($2 million) as they sought.
Oral argument is set for November 15, 2016.
[i] 275 Or App 658, 366 P3d 370 (2015).
[ii] Id. at 671.
[iii] 124 Or App 166, 173, 861 P2d 1026 (1993), rev den, 319 Or 150, 877 P2d 86 (1994).
[iv] Ordinarily, under Oregon law, a plaintiff may not recover for emotional or psychic injuries from a defendant without accompanying physical impact. However, the Court accepted a case earlier this year in which the issue is whether Oregon should continue to adhere to the so-called “physical impact rule.” See http://www.davisrothwell.com/2016/04/01/a-new-challenge-to-oregons-physical-impact-rule/ for additional discussion of this case and the “physical impact rule.”
[v] Tomlinson, 275 Or App at 685 (quoting Molloy v. Meier, 679 NW2d 711, 719 (Minn 2004)).