Hester v. Dwivedi

[This opinion has been published in Ohio Official Reports at 

89 Ohio St.3d 575

.]




HESTER, NATURAL FATHER & NEXT FRIEND OF HESTER, A MINOR, APPELLANT,
                              v. DWIVEDI ET AL., APPELLEES.
                      [Cite as Hester v. Dwivedi, 

2000-Ohio-230

.]
Torts—Negligence—Child born with physical or other handicaps does not state a
        cause of action in medical negligence based upon the failure of a doctor to
        inform the child’s mother during pregnancy of test results indicating a
        possibility that the child would be born with defects.
A child born with physical or other handicaps does not state a cause of action in
        medical negligence based upon the failure of a doctor to inform the child’s
        mother during her pregnancy of test results indicating a possibility that the
        child would be born with defects, thereby depriving the mother of the
        opportunity to make a fully informed decision as to whether to obtain a legal
        abortion.
     (No. 99-683—Submitted January 26, 2000—Decided September 6, 2000.)
       APPEAL from the Court of Appeals for Hamilton County, No. C-970723.
                                        __________________
        {¶ 1} Lawrence and Patricia Hester initiated this action by filing a complaint
asserting medical negligence claims against various defendants, including appellees
Leela Dwivedi, M.D., Luis R. Saldana, M.D., and Dwivedi & Dwivedi, M.D., Inc.
The Hesters alleged that the defendants did not adhere to required standards of care
during Patricia’s pregnancy prior to the birth in 1993 of their daughter, Alicia Hester.
Lawrence also asserted claims on behalf of Alicia in his capacity as her natural father
and next friend, and this appeal concerns only those claims.
        {¶ 2} As is relevant herein, the Hesters alleged that Patricia employed Drs.
Dwivedi and Saldana to provide her with prenatal care. The Hesters claimed that
Patricia underwent multiple prenatal tests, including ultrasound, alpha-fetoprotein
                               SUPREME COURT OF OHIO




(“AFP”) blood testing, and amniocentesis in the course of her pregnancy. The Hesters
claimed that appellees breached the required standard of care in negligently informing,
or failing to inform, them of the prenatal testing results. They further alleged that the
test results showed positive indicators of birth defects in the fetus Patricia was
carrying, and that their daughter, Alicia, was, in fact, born with spina bifida and other
complications. The Hesters further asserted that Alicia will incur medical expenses,
wage loss, impairment of earning capacity, and pain and suffering as an adult in the
future as the direct and proximate result of the defendants’ negligence.
          {¶ 3} Ultimately, appellees moved for judgment on the pleadings pursuant to
Civ.R. 12(C). Appellees argued that, under Ohio law, Alicia Hester had no right to
recover damages associated with her genetic abnormalities, in that Ohio does not
recognize a claim for “wrongful life.” Quoting Azzolino v. Dingfelder (1985), 

315 N.C. 103, 107

, 

337 S.E.2d 528, 531

, they characterized a wrongful life claim as a
“claim for relief by or on behalf of a defective child who alleges that but for the
defendant’s negligent treatment or advice to its parents, the child would not have been
born.”
          {¶ 4} Appellees further moved for judgment on the pleadings in their favor as
to the claims of Alicia’s parents.
          {¶ 5} The trial court granted the appellees’ motions for judgment on the
pleadings as to the claims of the minor, Alicia, but denied their motions as to the
claims of Lawrence and Patricia Hester. The trial court found no just reason for delay
of appeal of that ruling.
          {¶ 6} Accordingly, in his capacity as natural father and next friend of Alicia
Hester, Lawrence Hester appealed the trial court’s order entering judgment in favor
of the appellees as to his daughter’s claims against them. The court of appeals
affirmed.
          {¶ 7} The cause is before this court upon the allowance of a discretionary
appeal.




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                                  January Term, 2000




                                 __________________
        Santen & Hughes and John D. Holschuh, Jr.; Gehrig, Gelwicks & Eynon
and Thomas A. Gelwicks, for appellant.
        Roetzel & Andress, Ann Ruley Combs and Karen A. Caroll, for appellee
Leela Dwivedi, M.D.
        Lindhorst & Dreidame and Michael F. Lyon, for appellee Luis Saldana,
M.D.
        Mark Stephen Lally, urging affirmance for amicus curiae Ohio Right to Life
Society, Inc.
        Lancione & Lancione, P.L.L., and John A. Lancione, urging reversal for
amicus curiae Ohio Academy of Trial Lawyers.
                                 __________________
        MOYER, C.J.
        {¶ 8} The sole issue presented in this appeal is whether Alicia’s wrongful life
claims are sufficient to withstand a motion for judgment on the pleadings filed
pursuant to Civ.R. 12(C). We hold that they are not.
        {¶ 9} Pursuant to Civ.R. 12(C), Alicia is entitled to have all the material
allegations in her complaint, with all reasonable inferences to be drawn therefrom,
construed in her favor as true. Peterson v. Teodosio (1973), 

34 Ohio St.2d 161

, 165-
166, 

63 O.O.2d 262, 264

, 

297 N.E.2d 113, 117

, citing 2A Moore’s Federal Practice
(1965) 2342, Paragraph 12.15; 5 Wright & Miller, Federal Practice and Procedure
(1969), Section 1368. Moreover, although significant discovery had taken place prior
to the time appellees filed their Civ.R. 12(C) motions, the trial court could not properly
consider any evidentiary material tending to disprove the complaint’s allegations in
deciding the motions. Rather, entry of judgment pursuant to Civ.R. 12(C) is only
appropriate “where a court (1) construes the material allegations in the complaint, with
all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as
true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support




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                              SUPREME COURT OF OHIO




of his claim that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v.
Pontious (1996), 

75 Ohio St.3d 565, 570

, 

664 N.E.2d 931, 936

.
        {¶ 10} In her complaint, Alicia alleges that appellees Drs. Dwivedi and
Suldana received test results while her mother was pregnant that indicated a possibility
that the fetus she was carrying was not developing normally, so that, if the pregnancy
continued, the child (Alicia) would be born with congenital abnormalities. Alicia
asserts that, because the pregnancy was not terminated, she was in fact born, and born
with severe physical and neurological deficits. She claims that she will be “forced to
incur extraordinary medical and educational expenses throughout the course of her
life,” for which the appellees should be held liable. She suggests that her mother
would have terminated the pregnancy had her parents been advised of the test results,
so that she, Alicia, would not have been born and would never incur extraordinary
medical and other costs. These allegations are either alleged in the complaint or are
reasonable inferences from it. We accept them as true for purposes of reviewing
appellees’ motions for judgment on the pleadings.
        {¶ 11} This court has previously disposed of cases bearing factual similarities
to the one at bar. While these types of cases are commonly labeled “wrongful life,”
“wrongful pregnancy,” “wrongful birth,” or “wrongful living” actions, they are not
governed by statutory law as are wrongful death actions. They remain, at their core,
medical negligence actions, and are determined by application of common-law tort
principles.
        {¶ 12} As have other courts and commentators, we recognize that overreliance
on terms such as “wrongful life” or “wrongful birth” creates the risk of confusion in
applying principles of tort law to actual cases, and may compound or complicate
resolution of the case. See Greco v. United States (1995), 

111 Nev. 405, 409

, 

893 P.2d 345, 348, fn. 5

, citing Capron, Tort Liability in Genetic Counseling (1979), 79
Col.L.Rev. 618, 634, fn. 62. Designating cases in this manner does serve a purpose
in providing a shorthand description of the kinds of facts asserted by the plaintiffs.




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                                  January Term, 2000




Nevertheless, determining that the instant case presents a “wrongful life” claim does
not confer a special legal status on it, nor change the traditional legal analysis used to
determine its merits.
        {¶ 13} Rather, such cases are properly decided by applying the same legal
analysis employed in any medical negligence claim. As in negligence claims in
general, liability based on the alleged negligence of a professional requires proof of
the following elements: duty running from the defendant to the plaintiff, breach of
duty by that defendant, damages suffered by the plaintiff, and a proximate cause
relationship between the breach of duty and the damages.
        {¶ 14} In Bowman v. Davis (1976), 

48 Ohio St.2d 41

, 

2 O.O.3d 133

, 

356 N.E.2d 496

, we first recognized a right for parents to recover where medical
negligence resulted in the birth of children.        Our holding was confined to a
determination that public policy did not preclude parents from bringing an action in
tort against medical providers following a negligently performed and unsuccessful
sterilization procedure. Such an action is generally characterized as presenting a
“wrongful pregnancy” claim.
        {¶ 15} Similarly, in Johnson v. Univ. Hosp. of Cleveland (1989), 

44 Ohio St.3d 49

, 

540 N.E.2d 1370

, the plaintiff, a mother, alleged that her doctors negligently
performed a tubal ligation, which she had undergone in order to avoid future
pregnancies. When she nevertheless became pregnant and delivered a healthy baby
girl, she sought damages for pain and suffering arising out of the pregnancy and birth,
for injury to her person caused by the increased care, responsibility, and work involved
in raising the child, and for the expenses of raising the child.
        {¶ 16} In Johnson we held that Ohio does not allow the award of damages for
child-rearing expenses in a wrongful pregnancy action brought by parents. “[I]n a
‘wrongful pregnancy’ action, Ohio recognizes the ‘limited damages’ rule which limits
the damages to the pregnancy itself and does not include child-rearing expenses. The
extent of recoverable damages is limited by Ohio’s public policy that the birth of a




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                              SUPREME COURT OF OHIO




normal, healthy child cannot be an injury to her parents.” 

Id.

 at paragraph two of the
syllabus.
       {¶ 17} Today we are presented with an action presenting the legal issue of
whether an individual who was not born as a normal, healthy child, but rather as a
child with birth defects, has herself suffered legally compensable injury in that she
was born rather than aborted. In short, we are asked to hold that such a child may
recover damages for the “injury” of having been born.
       {¶ 18} In both Bowman and Johnson, the plaintiffs were parents seeking
damages after failed sterilizations. In neither case did the children who were born in
spite of the failed sterilization procedures make claims themselves. In Bowman we
did, however, distinguish between wrongful pregnancy cases, brought by parents, and
wrongful life cases, brought by children. We noted that “[b]ecause [wrongful life]
claims force courts to weigh the value of being versus nonbeing, courts have been
reluctant to recognize this cause of action.” Bowman, 

48 Ohio St.2d at 45

, 

2 O.O.3d at 135

, 

356 N.E.2d at 499, fn. 3

.
       {¶ 19} In 1993 the Court of Appeals for Washington County affirmed
judgment on the pleadings against a minor child born with spina bifida who asserted
a wrongful life claim similar to Alicia’s. After considering existing Ohio precedent,
the court determined that it was “not prepared to say that life, even with severe
disabilities, constitutes an actionable injury.” Flanagan v. Williams (1993), 

87 Ohio App.3d 768, 776

, 

623 N.E.2d 185, 191

. As a result, the child’s claim failed, under
traditional negligence analysis, for failure to allege legally cognizable damages.
       {¶ 20} More recently, in Anderson v. St. Francis-St. George Hosp., Inc.
(1996), 

77 Ohio St.3d 82

, 

671 N.E.2d 225

, we considered a medical negligence case
characterized as a “wrongful living” case. In Anderson, an elderly patient was
resuscitated by a hospital nurse during a ventricular tachycardia event. The nurse
defibrillated the patient, despite his having previously directed his physicians not to
perform extraordinary efforts to preserve his life, and the resultant entry of “No Code




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                                 January Term, 2000




Blue” instructions on his chart. After his revival, the patient suffered a stroke,
rendering him partially paralyzed until his death nearly a year later. We held that the
medical professionals sued by the patient’s administrator were entitled to summary
judgment.
        {¶ 21} In Anderson we recognized that a medical professional has a legal duty
to respect the expressed wishes of a patient to refuse unwanted medical treatment. We
also accepted, for purposes of our review of a summary judgment, that Anderson had
demonstrated a genuine issue as to whether the medical defendants had breached that
duty. However, Anderson’s claim failed for lack of demonstrating a genuine issue as
to the remaining negligence components: damages and causation.
        {¶ 22} The crux of Anderson’s claim was the assertion that patient Wilson had
suffered injury in that the length of his life had been prolonged against his will as a
result of a breach of professional duty. We held that the law does not sanction an
award of damages based on the relative merits of “ ‘being versus nonbeing.’ ”

Anderson at 85

, 

671 N.E.2d at 228

, quoting Bowman, 

48 Ohio St.2d at 45

, 

2 O.O.3d at 135

, 

356 N.E.2d at 499, fn. 3

. We cited with favor the opinions of other courts that
human life cannot be a compensable harm, as the benefits of life should not be
outweighed by the expense of supporting it; that courts are not equipped to assume
the tasks of comparing the value of life in an impaired state and nonexistence; and that
life, however impaired and regardless of any attendant expenses, cannot rationally be
said to be a detriment when compared to the alternative of nonexistence. 

Id.,

 citing
Cockrum v. Baumgartner (1983), 

95 Ill.2d 193, 201

, 

69 Ill.Dec. 168, 172

, 

447 N.E.2d 385, 389

; Becker v. Schwartz (1978), 

46 N.Y.2d 401, 412

, 

413 N.Y.S.2d 895, 900

,

386 N.E.2d 807, 812

; Lininger v. Eisenbaum (Colo.1988), 

764 P.2d 1202, 1212

. In
short, we recognized that the status of being alive simply does not constitute an injury.
That holding was in full accord with our precedent in Bowman and Johnson.
        {¶ 23} In reaching this conclusion we recognized that the American civil
justice system imposes outer bounds of causation, even where an event certainly




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would not have happened but for another’s breach of a required standard of care.
Accordingly, in Johnson we quoted Prosser & Keeton, as follows:
        “ ‘ “Proximate cause” ’—in itself an unfortunate term—is merely the
limitation which the courts have placed upon the actor’s responsibility for the
consequences of the actor’s conduct. In a philosophical sense, the consequences of an
act go forward to eternity, and the causes of an event go back to the dawn of human
events, and beyond. But any attempt to impose responsibility upon such a basis would
result in infinite liability for all wrongful acts, and would “set society on edge and fill
the courts with endless litigation.” As a practical matter, legal responsibility must be
limited to those causes which are so closely connected with the result and of such
significance that the law is justified in imposing liability. Some boundary must be set
to liability for the consequences of any act, upon the basis of some social idea of justice
or policy.
        “ ‘This limitation is to some extent associated with the nature and degree of
the connection in fact between the defendant’s acts and the events of which the
plaintiff complains. Often to greater extent, however, the legal limitation on the scope
of liability is associated with policy—with our more or less inadequately expressed
ideas of what justice demands * * *.’ (Footnote omitted.) Prosser & Keeton, Law of
Torts (5 Ed.1984) 264, Section 41.” Johnson, 

44 Ohio St.3d at 57

, 

540 N.E.2d at 1377

.
        {¶ 24} In view of this precedent, we consider whether Alicia Hester could
prove any set of facts justifying her recovery of damages based on the conduct of the
appellee doctors. We find that she could not. As in Anderson, Alicia’s claims fail for
lack of asserting facts demonstrating the negligence elements of damages and
causation.
        {¶ 25} We initially observe that the vast majority of jurisdictions that have
considered wrongful life claims similar to Alicia’s have refused to recognize them.
See, generally, Siemieniec v. Lutheran Gen. Hosp. (1987), 

117 Ill.2d 230, 238-253

,




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                                  January Term, 2000

111 Ill.Dec. 302, 307-314

, 

512 N.E.2d 691, 696-703

. See, also, Williams v. Univ. of
Chicago Hosp. (1997), 

179 Ill.2d 80, 85

, 

227 Ill.Dec. 793, 796

, 

688 N.E.2d 130, 133

,
where the Supreme Court of Illinois characterized judicial rejection of wrongful life
claims brought by children as “nearly universal.”
        {¶ 26} It is undisputed that Alicia’s spina bifida condition commenced at or
near the time of conception, and that appellees neither caused that condition itself, nor
could they have treated either Patricia or Alicia so as to allow Alicia to be born without
spina bifida. Thus, the only injury causally related to the appellees’ breach of duty was
the deprivation of the chance to make a fully informed decision whether to continue
the pregnancy. That decision, legally, belonged to Patricia Hester. Roe v. Wade
(1973), 

410 U.S. 113

, 

93 S.Ct. 705

, 

35 L.Ed.2d 147

. Had she been given the
information at issue she would have had two options: continue the pregnancy or abort
the pregnancy.
        {¶ 27} It is implicit in Alicia’s argument that appellees should be held liable
to her mother Patricia, based on breach of the duty to convey the negative test results
to Patricia and that Alicia herself was injured by that breach. Because the Hesters
assert that Patricia would have opted for abortion, adoption of the proposition that
Alicia was thus injured would necessitate our acceptance of the proposition that
abortion, therefore nonexistence, would have been better for Alicia than life
accompanied by physical and/or mental deficiencies. We would, in effect, be making
a judicial determination that the trial court is able to adjudicate that it would have been
better for Alicia had she not been born. The issue is compounded by the fact that it is
not Alicia herself who asserts that she would have preferred not to have been given
life, but her father, whom the law permitted to speak for her.
        {¶ 28} The proposition that it would have been better for Alicia to have not
been given life is inconsistent with our recognition of the value of life, as reflected in
the holding in Anderson and other precedent. It also would place the court in the
position of comparing the value of being, albeit with handicaps, versus nonbeing.




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                               SUPREME COURT OF OHIO




        {¶ 29} We remain committed to the proposition, as recognized in Bowman,
that such weighing falls within the ambit of moral, philosophical, and religious
considerations rather than judicial. Judges and jurors are no more able to judge the
value of a life with disabilities versus nonbeing than they are able to judge the value
of life in a “normal” condition (however that might be defined) versus nonbeing. We
therefore reject the Hesters’ suggestion that Alicia suffered damage based on the fact
of her being born rather than aborted.
        {¶ 30} Similarly, Alicia’s claim fails for lack of demonstrating the negligence
element of causation. Had Patricia been told that her fetus might be born with spina
bifida, she would, under current law, have been legally entitled to an abortion.
Abortion would, of course, have relieved the Hesters from the joys and benefits of
parenthood, as well as the financial obligations associated with parenthood. If
appellees failed to provide Patricia with the disconcerting test results, as alleged in the
complaint, Patricia can claim to be injured in that she was deprived of the choice to
avoid those expenses by terminating the pregnancy. But that issue is not presented in
this appeal.
        {¶ 31} Moreover, no person has control over the occurrence or nonoccurrence
of his or her own birth. In contrast to a pregnant woman who is unwilling or unable
to undertake the burdens, both financial and nonfinancial, associated with the care of
an impaired child, and therefore decides to terminate her pregnancy, the child herself
does not have an option to decide whether or not it will be born. He or she is no worse
off as a result of a medical provider’s breach of duty to her mother than if the test
results had been conveyed, yet the mother decided to continue the pregnancy. As
cogently summarized in Schloss v. Miriam Hosp. (Jan. 11, 1999), R.I.Super. No. C.A.
98-2076, unreported, 

1999 WL 41875

, “The child’s claim for damages, characterized
as a wrongful life claim, has a different frame of reference from his parents’ claim.
Assuming that the defendants were negligent in failing to diagnose the genetic risk to
which he was exposed, the only way in which his injury could have been prevented




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                                   January Term, 2000




would have been a timely abortion decision by his female parent. But the choice
whether or not to conceive him, and to carry him as a fetus to his birth, was never his.
He would have had no claim against anyone, if his parents had knowingly decided to
allow him to be born in spite of a genetic certainty that he would be afflicted with his
dreadful disease.”
        {¶ 32} In short, the injury allegedly suffered by Patricia (deprivation of
opportunity to make an informed choice to terminate a pregnancy) is conceptually
different from the injury that Alicia asserts (her birth with defects). Liability in
negligence is dependent upon the existence of a proximate cause relationship between
breach of duty and injury suffered. Alicia argues, in effect, that appellees’ breach of
duty caused her birth with defects. But a “birth with defects” is composed of two
separate components: birth and defects. We accept as a reasonable inference from the
complaint Patricia’s assertion that she would have aborted had she been provided the
test results, and we thus further accept the premise, on this review of a motion for
judgment on the pleadings, that appellees’ breach caused Alicia to be born. However,
that breach did not, in any way, cause Alicia’s medical handicaps.
        {¶ 33} The law of negligence does not hold a defendant liable for damages
that the defendant did not cause. The Hesters concede that Alicia’s spina bifida was
not caused by anything the appellees did. It is certainly true that Alicia would never
incur extraordinary living expenses had Patricia undergone an abortion, as Alicia
would never have existed as a living being. But we find, consistent with Johnson and
Anderson, and as described by Prosser, supra, that the fact that Alicia is handicapped
is not so closely connected with the appellees’ breach of duty as to justify imposition
of liability on these appellees.
        {¶ 34} It is an unfortunate fact that Alicia was born with spina bifida. Medical
science could not have changed this fact. She would either be born with that condition
or not born at all. The crux of her complaint as asserted by her father is that she was
born at all. That being the case, Alicia could recover, if at all, based only on the fact




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that she is now alive, albeit with spina bifida. The common law of Ohio, as in the vast
majority of American jurisdictions, does not authorize such a recovery.
       {¶ 35} Accordingly, we hold that a child born with physical or other handicaps
does not state a cause of action in medical negligence based upon the failure of a
doctor to inform the child’s mother during her pregnancy of test results indicating a
possibility that the child would be born with defects, thereby depriving the mother of
the opportunity to make a fully informed decision as to whether to obtain a legal
abortion.
       {¶ 36} The trial court properly granted judgment on the pleadings in favor of
appellees, and, accordingly, the judgment of the court of appeals is affirmed.
                                                                   Judgment affirmed.
       F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
       DOUGLAS and RESNICK, JJ., dissent.
       PFEIFER, J., dissents.
                                 __________________
       PFEIFER, J., dissenting.
       {¶ 37} This case challenges the ability of the legal system to handle a series
of difficult moral, ethical, and legal questions. Our existing jurisprudence does not
offer adequate answers. But it is the very nature of the common law that it develop,
and that it build bridges between resolved areas of the law and new areas of concern
that arise out of social shifts or advances in science and technology.
       {¶ 38} This is a complicated case, but at the same time is not complicated
enough. The issues it raises should not be dealt with in the abstract.            The
development of the facts here is not equal to the task of dealing with a case of this
magnitude. Alicia’s claim deserves a trial, so that the parties can develop a factual
record for us to examine and extrapolate from. We ought to accumulate all the
resources we have at our disposal to resolve this issue.           We diminish the
jurisprudence of this state to do otherwise.




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                                January Term, 2000




       {¶ 39} New legal theories should be tested, but not in a vacuum. This is a
responsibly pled case, and Alicia’s claim is closely tied to those of her parents,
claims that no one seems to argue are invalid. Alicia’s and her parents’ claims
should be tried together. In an area of law where closely related claims are allowed,
we should see how a case like this might play out, and how the claims might fit
together in order to avoid wholly inadequate or inappropriate compensation. If the
claims are tried together, a jury can sort them out and give a reviewing court a better
ability to determine what claims should and should not be recognized.
       {¶ 40} It is the natural progression of the law that important claims go
unrecognized before being adopted by courts. In the end, we might not agree with
the plaintiff’s theory of recovery. But the issue and proposed claim are important
enough that we ought to allow a jury the opportunity to work its way through the
matter. Before Gallimore v. Children’s Hosp. Med. Ctr. (1993), 

67 Ohio St.3d 244

,

617 N.E.2d 1052

, Ohio’s common law did not recognize a parent’s cause of action
for loss of consortium based upon his or her child’s injury. That case was allowed
to proceed to a jury, and the jury was able to sort out the compensability issues.
And we saw a real-life case where the concept of loss of filial consortium made
perfect sense. The plaintiff parent truly did suffer an injury when a doctor’s
negligence rendered her child deaf. But before her case was allowed to play itself
out in the legal system, she had no recognizable right to recovery. It was an easy
step for us to recognize the parent’s claim because trial judge allowed the case to
go forward and the jury did a very credible job in awarding compensation for what
was a previously unrecognized claim.
       {¶ 41} This case is not about the worth of special-needs children, it is about
the financial cost of raising a child, and what happens to the child who is unable to
pay for his or her own needs once he or she reaches the age of majority. If we allow
parents to recover for negligent genetic counseling, it may make pragmatic sense
that the child’s claim also be allowed. Only if the damage award goes to the child,




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                             SUPREME COURT OF OHIO




with oversight by the probate court, can we be certain that the child’s expenses are
being paid. The child’s injury would be the focus of any damages, and thus the
treatment of that injury should be the focus of any award.
       {¶ 42} The labeling of a cause of action as “wrongful life” cheats a plaintiff.
Neither her parents nor the child herself claims that the life of the child is a wrong.
Parents are not suing to avoid having to provide love and care to a child with special
needs. Children are not suing because they have a difficult life. Children and
parents sue because there is a very real financial cost that is intertwined in their
lives because of allegedly negligent medical care.
       {¶ 43} Might it not be injudicious of this court to assume that a lifetime of
dependence is not an injury? None of us will ever know what it is like to be Alicia
Hester. We cannot know what might go through her mind in her most private of
moments, or what she might think about herself in moments of honest self-
appraisal.
       {¶ 44} While we all owe our lives to the efforts of the many who preceded
us, those of us who can lead eventually normal and independent lives can forget,
on the surface at least, our continued debt to those people. However, the less
fortunate can be weighed down by the constant reminder of complete dependence.
Might there be a proper claim of negligent infliction of emotional distress for
plaintiffs like Alicia against doctors who negligently perform prenatal testing?
                               __________________




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