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Schirmer v. Mt. Auburn Obstetrics & Gynecologic Associates12/30/2003
OPINION.
We have sua sponte removed this cause from the accelerated calendar.
. Plaintiffs-appellants, Helen and Richard Schirmer, appeal from the trial court's order dismissing their complaint for damages allegedly caused by the medical negligence of the defendant-appellees, Dr. Kevin R. Fitzgerald, Mrs. Schirmer's obstetrician, his employer, Mt. Auburn Obstetrics and Gynecologic Associates, Inc., Children's Hospital Medical Center ("CHMC"), Martha Walker, M.S., and Howard M. Saal, M.D., who conducted genetic testing during Mrs. Schirmer's pregnancy. The issue is what damages parents of a child born with birth defects are entitled to recover where their reliance on negligent genetic testing and medical advice deprived them of the information necessary to decide whether to terminate the pregnancy. We hold that because of the close causal nexus alleged between the medical negligence and the genetic harm to the Schirmers' child, and because of the absence of the need to calculate the value of nonbeing in determining the amount of damages, the allegations in the Schirmers' complaint state a valid medical claim. The measure of their damages is limited to those consequential, economic damages of raising their disabled child over and above the ordinary child-rearing expenses. But we hold that the Schirmers are not entitled to an award for non-economic damages. Therefore, the Schirmer's assignment of error is sustained in part and overruled in part.
THE FACTS
. In their complaint, the Schirmers alleged that genetic testing, conducted after previous unsuccessful pregnancies, disclosed that Mrs. Schirmer carried a balanced translocation of chromosomes 11 and 22. Although it caused her no harm, there was a one-third chance that she would pass the unbalanced form of the translocation to her child. A child carrying the unbalanced translocation could have a "third" or extra chromosome 22-a partial trisomy 22. This condition would cause serious birth defects. During Mrs. Schirmer's pregnancy, she instructed the defendants to do all necessary testing to determine if her fetus carried this genetic defect. The results of the testing would have permitted the Schirmers to decide whether to terminate the pregnancy rather than to bring a severely mentally and physically disabled child into the world.
. The defendants ordered and conducted a chorionic villus sampling (CVS) test that was the recognized and accepted test to determine the genetic makeup of a fetus by sampling fetal cells. The test result indicated that the fetus was probably a female with the same balanced chromosome translocation as the mother. If, however, the test had incorrectly sampled Mrs. Schirmer's own tissue rather than the tissue of the fetus, the results of the CVS would not have accurately determined the genetic makeup of the fetus. The Schirmers alleged that the defendants were negligent in not taking the further steps necessary to validate the CVS test results.
. On September 9, 1997, Mrs. Schirmer gave birth to a son, Matthew. Matthew, who is not party to this action, inherited a partial trisomy of chromosome 22 from his mother and is profoundly mentally and physically disabled. He requires round-the-clock care.
. The Schirmers brought suit, claiming that because of the negligent medical advice and testing of the defendants, they were precluded from making an informed decision about whether to proceed with the pregnancy and a delivery that would result in a severely disabled child. They sought damages for (1) the costs related to the pregnancy; (2) economic, consequential losses-the costs of raising and supporting the disabled child; and (3) non-economic consequ
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