Grubbs v. Barbourville Family Health Center *.

• Author: Bostrom, Barry A.
• Position: Nota Bene

HELD: There is no recognition of wrongful birth or wrongful life claims based on a doctor's negligent failure to diagnose an incurable birth defect in a prenatal exam, as in such cases this failure could not be considered a cause of the condition. The loss of an abortion opportunity resulting in the birth of a child with genetic or congenital impairments does not give rise to a cognizable legal injury.

The Supreme Court of Kentucky granted discretionary review to consider two issues of first impression in that state. The first is whether the parents of a child born with incurable and profound birth defects have a cause of action against a physician for failing to correctly diagnose and/or inform them of the fetal medical condition in time for an abortion. The second issue is whether the child has a claim for the same medical errors or omissions. To decide these issues, the court focused on three areas of inquiry: (1) whether these are new causes of action requiring legislative authorization, or whether they are conventional negligence cases; (2) if it is determined that they are traditional negligence actions, whether, as a matter of law, the elements of negligence can be proven; and (3) whether there are public policy considerations that affect the analysis. Both cases were decided upon summary judgment, and thus the supreme court was called upon to review each case to determine if it should proceed to trial.

In both cases, the plaintiffs alleged that early diagnostic procedures revealed the birth defects, but that the physicians failed to accurately interpret and/or report the results. In late 1995, Kimberly Grubbs sought prenatal care from her doctor at the Barbourville Family Helath Center. In April, when she was approximately twenty-four weeks pregnant, the doctor performed a prenatal screening ultrasound. She was advised that the results were normal. Two months later, a second ultrasound indicated that the fetus might have birth defects. Mrs. Grubbs was sent to the University of Kentucky Medical Center for further evaluation. In June, her eighth month of pregnancy, a level II ultrasound by a maternal/fetal medicine specialist revealed that the fetus had spina bifida and hydrocephalus. On July 22, 1996, Carlei Nacole Grubbs was born with the diagnosed birth defects. She was also paralyzed from the waist down, had poor vision and misshapen kidneys.

The Grubbses brought a negligence action against the Health Center. They alleged that the...