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Perrotti v. Gonicberg7/7/2005
mergency room at Our Lady of Fatima Hospital, she was informed that the fetal heart rate was normal, and an ultrasound examination also yielded a normal result. Also, the rest of her pregnancy was normal. At no time did she ever suffer any physical problems in relation to her pregnancy, nor was she informed by a medical professional that something could be wrong with the baby. The only indication of her anxiety was her testimony that a "black cloud" followed her for the rest of her pregnancy. She did not, however, seek any counseling, medication or treatment for this condition.
Therefore, a clear distinction can be recognized between the cases plaintiffs cite and the case now before us. In no other case was the plaintiff explicitly informed by medical professionals, after an evaluation of the pregnancy with the help of a fetal heart-rate monitor and ultrasound, that everything was fine and that the baby was doing well. Moreover, in Porter v. Headings, 527 P.2d 403, 404 (Or. 1974), one of the cases plaintiffs rely on, a pregnant woman, after being injured in a car accident, was told by a nurse in the emergency room who listened to the fetal heart beat that she "couldn't hear it." But, the woman's doctor, arriving about thirty minutes later, checked the fetal heart beat and told the plaintiff that the baby was "O.K." Id. In holding that the jury properly could find mental anguish in this case, the court noted that the nurse's statement could result in "extreme mental anguish during the period until plaintiff's doctor assured her that the baby was 'O.K.'" Id. at 404-05. The court did not say, however, that the woman could collect damages for the period from the time of the accident until she delivered a healthy child, despite the fact that a doctor had assured her that everything was all right.
We seek not to close off the avenue of recovery that was opened in Gagnon for pregnant women who suffer mental anguish as a result of a defendant's wrongful conduct. We recognize, however, that Gagnon predated the era of reliable antenatal diagnostics, such as fetal heart-rate monitoring and ultrasound. Therefore, the plaintiffs and their physicians in the above-cited cases had no means of detecting any stress or injury to the fetus until after the birth. As a matter of public policy, we are of the opinion that these advancements in medical technology, which now are routinely used in monitoring a pregnancy throughout its course, should not be ignored, and that our holding in Gagnon should be repositioned in a twenty-first century context.
We hold, therefore, that a plaintiff may not recover for mental anguish for a potential injury to her unborn child that is wholly unsupported by any physical suffering during and after the incident in question and that explicitly has been ruled out by routine medical diagnostics. We are mindful of the fact, however, that pregnancy and childbirth continue to pose great mysteries that escape complete comprehension and control, and that carry risks with them, which, despite the latest advancements in medical research and technology, cannot be fully assessed. This has led some of our sister states to sustain their holdings in cases involving mental anguish suffered by pregnant women in recent decisions. See, e.g., Simons v. Beard, 72 P.3d 96 (Or. Ct. App. 2003) (holding that a pregnant woman whose baby died just before being born as a direct result of defendant-doctor's negligence was permitted to recover damages for her apprehension about the child's well-being before death, after she learned that the baby was in a transverse position across the upper part of the birth canal, and defendant did not undertake any steps to correct the position until after the baby had di
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