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Okla. Stat. tit. 63, § 1-741.11 (Supp. 2008), recognizes wrongful birth actions but does not allow a parent, or other person who is legally required to provide for the support of a child, to seek economic or noneconomic damages because of a condition that existed at the time of the child's birth, based on a claim that a person's act or omission contributed to the mother not terminating the pregnancy.
On June 8, 2009, the Shulls initiated an action sounding in medical malpractice seeking compensation for the injuries suffered as a result of the Appellees' alleged malpractice in failing to properly diagnose a Cytomegalovirus infection, hereinafter referred to as CMV, that occurred during Patricia Shull's first trimester of pregnancy, and failing to inform the Shulls of the significant health risk to their unborn child. The Shulls alleged that, as a direct and proximate result of this failure to diagnose and inform, Shull's minor son was born on June 9, 2007, with the CMV infection and suffers significant complications rendering the child permanently and completely helpless. The Shulls do not claim Defendants could have treated CMV or that the Defendants were responsible for Mrs. Shull's exposure to CMV. The Shulls claimed that, had they known of the virus, they would have terminated the pregnancy. Defendants/Appellees filed a Partial Motion for Summary Judgment alleging the Shulls may only recover damages for the medical cost of continuing the pregnancy, offset by the cost of termination of the pregnancy. The district court found the issue raised in the Defendants/Appellees' motion was one of first impression and the trial court lacked guidance because there were no published opinions from this Court addressing what damages are available to parents of an unhealthy, abnormal child, bringing a claim for wrongful birth and medical malpractice. The trial court, claiming judicial economy, suggested to the parties it was procedurally preferable to grant defendants/appellees' motion for partial summary judgment, and let this matter pass to this Court as a Certified Interlocutory Order on a Petition for Certiorari.
Was there a cause of action for emotional distress?
The court held that in a wrongful birth/medical malpractice action, the measure of damages was the extraordinary medical expenses and other pecuniary losses caused by the negligence. There was no cause of action for emotional distress because the child's injury occurred without human fault during fetal development and the parents were unaware of the injury at the time. Recovery may be had 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 he reached the age of majority, whichever was shorter.