Marie Wood and Terry Borman v. University of Utah Medical Center *.

• Position: Verbatim

[paragraph] 1 The instant appeal requires us to determine the constitutionality of the Utah Wrongful Life Act, Utah Code Ann. [subsection] 78-11-23 to -25 (2002), legislation prohibiting a cause of action "based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted." Utah Code Ann. [section] 78-11-24 (2002). Plaintiffs insist the statute violates the Open Courts Clause, article I, section 11 of the Utah Constitution, the Due Process guarantees of the United States and Utah Constitutions, and the Equal Protection guarantees of the United States and Utah Constitutions. Plaintiffs claim the district court erred in upholding the Utah Wrongful Life Act as constitutional and in dismissing plaintiffs' complaint for wrongful birth as barred by the Act. We are also asked to decide whether plaintiffs' claims for negligent infliction of emotional distress and failure to obtain informed consent were appropriately dismissed as barred by the Act because they necessarily require proof that plaintiffs would have aborted the child. We affirm the decision of the district court.

Factual and Procedural Background

[paragraph] 2 When determining whether a trial court properly dismissed a complaint, we accept the factual allegations in the complaint as true and consider them, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party See Krouse v. Bower, 2001 UT 28, [paragraph] 2, 20 P.3d 895. We recite the facts accordingly

[paragraph] 3 This case arose from treatment and advice that plaintiffs Marie Wood and Terry Borman received from the University of Utah Medical Center related to Marie's pregnancy When Marie became pregnant, she and her husband, Terry, sought genetic counseling from the University of Utah Medical Center ("Medical Center"). They specifically sought advice about the risk that Marie, because of her age, would give birth to a child with a genetic disorder. Doctors at the Medical Center performed some tests in January 1998, the results of which plaintiffs claim they were never informed. Further testing was performed in February and March 1998. An initial February test was unsuccessful, so plaintiffs opted for a repeat test later in the month. A second February test was performed, followed by further testing in March. Plaintiffs claim they were again not informed of the results of a March test. They were, however, informed in late March that the tests indicated an 85% probability that Marie's would-be child would be born with Down syndrome. Nevertheless, doctors told plaintiffs not to worry because the tests often resulted in false positives and led plaintiffs to believe that the chances Marie's child would have Down syndrome were actually quite small. Based on this advice, plaintiffs decided to proceed with delivery. In August 1998, Marie delivered a baby girl, Mary Lorraine, who was diagnosed with Down syndrome.

[paragraph] 4 Plaintiffs filed suit in the district court alleging that the doctors and other health care professionals employed at the Medical Center were negligent because they misread the tests, and failed to inform plaintiffs of certain test results; specifically, the likelihood that Marie would deliver a child with Down syndrome. Plaintiffs raised three causes of action: (1) Negligence in performing and interpreting various tests and for failing to provide plaintiffs with sufficient information to make an informed decision whether to abort, resulting in the birth of Mary, a child with Down syndrome. In raising this claim plaintiffs maintain that because of this negligence, they incurred the cost of labor and delivery, they are incurring unwanted medical and other expenses related to Mary's care, they will be "unable to live ordinary lives due to the increased attention Mary Lorraine will require," they suffer mental anguish and pain and suffering, and Mary was "wrongfully born afflicted with Down syndrome, and will suffer the effects of that syndrome for the remainder of her natural life." (2) Negligent infliction of emotional distress. In raising this claim plaintiffs "re-aver[ed] all allegations previously stated" and claimed "they will continue to incur pain and suffering and mental anguish for the remainder of their natural lives" because of the Medical Center's negligence. (3) Failure to obtain informed consent. In raising this claim plaintiffs again "re-aver[ed] all allegations previously stated." Plaintiffs also specifically insisted that "[a] reasonable, prudent person or persons in Plaintiffs' position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent." Plaintiffs further claimed they were "denied the opportunity to make an informed decision as to the medical care they would receive, and as to the continuation of the pregnancy," and, as a result, suffer "mental anguish and distress, loss of consortium, costs associated with labor and delivery, extraordinary medical and other related expenses, and the right to lead a normal life." Couched as a fourth cause of action, plaintiffs asserted that section 78-11-24 of the Utah Code is unconstitutional.

[paragraph] 5 The Medical Center filed a motion for judgment on the pleadings, pursuant to Utah Rule of Civil Procedure 12(c), alleging that plaintiffs' claims were barred by sections 78-11-23 and -24 of the Utah Code, two provisions of the Utah Wrongful Life Act. Plaintiffs opposed the motion and filed a cross-motion for partial summary judgment, asserting that section 78-11-24 is unconstitutional. The district court held that section 78-11-24 was constitutional and barred all of plaintiffs' claims, therefore granting defendant's motion for judgment on the pleadings and denying plaintiffs' motion for partial summary judgment.

[paragraph] 6 Plaintiffs appeal, challenging section 78-11-24 as violative of the Open Courts Clause of the Utah Constitution, the Due Process Clauses of the Utah and United States Constitutions, and the equal protection guarantees of the Utah and United States Constitutions. Plaintiffs also claim the district court erred in dismissing their claims for negligent infliction of emotional distress and failure to obtain informed consent.

Analysis

1. Open Courts Clause

   1. Standard of Review

      [paragraph] 7 "The issue of `[w]hether a statute is constitutional is a question of law, which we review for correctness, giving no deference to the trial court.'" Grand County v. Emery County, 2002 UT 57, [paragraph] 6, 52 P.3d 1148 (quoting State v. Daniels, 2002 UT 2, [paragraph] 30, 40 P. 3d 611). Furthermore, we presume the legislation being challenged is constitutional, and we resolve any reasonable doubts in favor of constitutionality Id.; see also Utah Sch. Bds. Ass'n v. State Bd. of Educ., 2001 UT 2, [paragraph] 9, 17 P.3d 1125. As this court stated in a prior Open Courts case: The first and foundational [principle of law relating to the constitutionality of statutes] is that the prerogative of the legislature as the creators of the law is to be respected. Consequently, its enactments are accorded a presumption of validity; and the courts do not strike down a legislative act unless the interests of justice in the particular case before it require doing so because the act is clearly in conflict with the higher law as set forth in the Constitution. Zamora v. Draper, 635 P. 2d 78, 80 (Utah 1981) (internal citations omitted); see also Soc'y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 920 (Utah 1993); Lindon City v. Engineers Const. Co., 636 P.2d 1070, 1073 (Utah 1981).

      [paragraph] 8 We recognize that on previous occasions involving Open Courts challenges this court recognized an exception to our well-settled presumption-of-constitutionality standard. See Hipwell v. Sharp, 858 P.2d 987, 988 n.4 (Utah 1993); Condemarin v. Univ. Hosp., 775 P. 2d 348, 368 (Utah 1989) (Zimmerman, J., concurring); see also Currier v. Holden, 862 P.2d 1357, 1362-63 (Utah Ct. App. 1993). We submit that this heightened standard of review for Open Courts challenges was in error. Any heightened level of scrutiny simply because the constitutional challenge is based on the Open Courts Clause is improper. We recognize that returning to the established standard of review is contrary to the relatively recent above-cited decisions. However, "[t]his court has `not hesitated ... to reverse case law when we are firmly convinced that we have erred earlier.'" Clark v. Clark, 2001 UT 44, [paragraph] 32 n.3, 27 P.3d 538 (quoting Staker v. Ainsworth, 785 P.2d 417, 424 n.5 (Utah 1990)) (Russon, A.C.J., dissenting, joined by Howe, C.J.). We are firmly convinced that this court erred earlier, and, as a result, we would review challenges to legislation based on the Open Courts Clause for correctness, resolving any reasonable doubts in favor of constitutionality, just as in all other such cases.

   2. Berry Analysis

      [paragraph] 9 The Open Courts Clause analysis is controlled by Laney v. Fairview City, 2002 UT 79, 57 P. 3d 1007, this court's recent interpretation of the Open Courts Clause, upholding Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985). (1) The challenged legislation, section 78-11-24 of the Utah Code, was enacted in 1983 and reads as follows: A cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted. Utah Code Ann. [section] 78-11-24 (2002). Plaintiffs first claim that the statute violates the Open Courts Clause. In order for a statute to withstand a constitutional challenge under the Open Courts Clause, Berry requires one of two conditions to be met: First, ... the law [must otherwise provide] an injured person an...