The Kansas Supreme Court has upheld the constitutionality of a state law abolishing a medical malpractice claim known as a “wrongful birth.”
The 4-3 decision affirms a Riley County District Court’s dismissal of a lawsuit by parents who alleged their prenatal doctor negligently failed to inform them about serious fatal abnormalities observable from an ultrasound.
Alysia Tillman and Storm Fleetwood of Manhattan sued their physician, Dr. Katherine Goodpasture, for denying information about their child’s severe brain defects. The information could have allowed the couple to seek an abortion.
A statute barring these types of lawsuits was passed by the Kansas Legislature in 2013. They had previously been recognized as viable claims in a 1990 Kansas Supreme Court Decision. Justice Caleb Stegall wrote a concurring opinion arguing the 1990 decision should be overruled, avoiding the constitutional questions faced by the high court. Two other justices also dissented including Chief Justice Marla Luckert, who argued medical malpractice actions existed when the state constitution was adopted, so the 2013 statute violated plaintiffs’ right to a jury trial.
Justice Eric Rosen joined the chief justice’s dissent. He also wrote a separate dissent arguing the existence of an injury should be sufficient for the constitutional right to remedy to protect a cause of action from being abolished by statute, without needing to decide whether the injury was actionable when Kansas adopted its constitution.
You can read the court’s full opinion in the attached link.117439_1