Wrongful life claim barred by public policy.

Byline: David Ziemer

Although public policy prohibits a plaintiff from recovering the costs of raising a healthy child due to the failure to diagnose a pregnancy, a plaintiff may recover damages for exacerbation of a chronic illness and its associated consequences, the Wisconsin Court of Appeals held on April 11.

Failure to Diagnose

Sarah Flint was first diagnosed with systemic lupus erythematosus in 1985. In 1994, for issues related to her lupus, Flint was referred to Barbara A. O'Connell, a licensed gynecologist.

Flint subsequently informed O'Connell that she had had a positive pregnancy test and that she wished to undergo an abortion for personal and medical reasons.

In accordance with Flint's decision, O'Connell performed a procedure to abort a pregnancy in January 1995. However, it was later determined that Flint had not been pregnant. O'Connell diagnosed Flint as suffering from premature ovarian failure or "premature menopause."

In mid-November 1997 and early January 1998, Flint made several telephone calls to O'Connell's office because of recurring periods of nausea, lower abdominal pain and vaginal bleeding. O'Connell examined Flint on Jan. 12, 1998, but did not diagnose Flint's pregnancy, which was then on-going.

Flint did not discover she was pregnant until March, when she was well into the second trimester of pregnancy. Flint continued with the pregnancy, and gave birth to a healthy baby on May 31, 1998.

After being diagnosed as pregnant, Flint discontinued some of the medication she had been taking for lupus. Subsequent to giving birth, she experienced a decrease in kidney function, which eventually ended in renal failure and a kidney transplant.

Trial Court Dismisses All Claims

Flint brought suit against O'Connell, alleging that O'Connell provided negligent care by failing to inform Flint that she could become pregnant ("failure to inform claim") and by failing to diagnose the pregnancy in time to abort the fetus ("failure to diagnose claim"). Flint also alleged that her kidney failure was a result of having stopped medication during pregnancy.

Dane County Circuit Court Judge John C. Albert determined that public policy precludes recovery for all damages sought under the failure to diagnose claim.

However, Albert also concluded that if Flint proved that O'Connell negligently failed to inform her about the possibility of becoming pregnant, she could potentially recover damages both for the expenses related to the kidney...