The Supreme Court of the State of Kansas (“Kansas Supreme Court”), in its opinion dated April 30, 2021, stated: “This case considers the constitutional validity of a statute abolishing a medical malpractice claim commonly known as a “wrongful birth” action. See K.S.A. 2020 Supp. 60-1906(a) (abolishing the claim), (d)(2) (defining the claim). The plaintiff parents allege their prenatal doctor negligently failed to inform them about serious fetal abnormalities observable from an ultrasound that would have led them to terminate the pregnancy had they known. They sued to recover the costs of care after their child was born with severe, permanent disabilities. A district court dismissed their lawsuit based on the statute, and a Court of Appeals panel affirmed … We granted review at the parents’ request. They argue K.S.A. 2020 Supp. 60-1906(a) violates two constitutional protections—the right to trial by jury guaranteed by section 5 of the Kansas Constitution Bill of Rights, and the right to a remedy guaranteed by section 18 of the Kansas Constitution Bill of Rights. We affirm.”
“Thirty years ago, this court joined most of the other state courts that had considered the issue by confirming this cause of action was viable in Kansas. See Arche v. United States, 247 Kan. 276, 798 P.2d 477 (1990). Twenty-three years later, the Legislature enacted K.S.A. 2013 Supp. 60-1906, so the question now is whether a state law can abolish wrongful birth causes of action after our court acknowledged them. See L. 2013, ch. 48, § 1. We hold the statute is constitutional. Our resolution stems from a central conclusion that the Arche court recognized the wrongful birth tort as a new cause of action. As a result, section 5’s jury trial right and section 18’s right to a remedy—both of which extend under our caselaw only to common-law causes existing at the time these constitutional protections were adopted—do not shield the parents’ claim from this legislative action.”
Arche v. United States
Arche held a successful plaintiff could recover expenses caused by the child’s handicap for the child’s life expectancy or until the child reached the age of majority. But it excluded from the recoverable damages calculation what would be considered the expected expenses for raising a child because wrongful birth plaintiffs typically desire a child and plan to support the child. Similarly, Arche excluded damages for emotional distress because typically visibility of results as opposed to visibility of the tortious act does not give rise to a claim for emotional damages under Kansas caselaw. Since recoverable damages were limited in these ways, the court held no offset would be allowed against the damages caused by the defendant’s negligence for any special benefits to the plaintiffs from having a child.
The Kansas Supreme Court stated in the present case: “we hold the wrongful birth action is not among the traditional common-law causes of action, even though it has aspects consistent with traditional negligence principles. The recognition of a new injury; the adoption of factual requirements for that injury to be actionable; and the formulation of rules limiting recoverable damages specific to the injury combine to cause us to conclude wrongful birth was a “new” tort created in 1990, rather than simply being a different application of the basic concepts of negligence existing at common law … Since the parents’ claim for damages is based on a cause of action newly adopted in 1990 as a part of this court’s continuing common-law development, the Legislature’s later abrogation of that cause of action does not implicate their section 5 rights. We hold K.S.A. 2020 Supp. 60-1906 does not offend section 5 [Section 5 of the Kansas Constitution Bill of Rights declares, “The right of trial by jury shall be inviolate.” It applies to give the right to trial by jury on issues of fact so tried at common law as it existed at the time the Kansas Constitution was adopted, but no further].”
The Kansas Supreme Court continued: “As with section 5, our conclusion that wrongful birth was recognized as a new cause of action in 1990 forecloses the parents’ claim that section 18 precludes the Legislature from statutorily abrogating the cause of action [Section 18 provides, “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” Kan. Const. Bill of Rights, § 18. Section 18 “does not create rights of action; it means only that ‘for such wrongs that are recognized by the law of the land,’ the courts of this state shall be open and afford a remedy.”]”
The Kansas Supreme Court held: “We hold the Legislature was free to abrogate Arche by statute without implicating section 18 under the circumstances presented. To reiterate, the wrongful birth cause of action is not just a different application of the traditional medical malpractice tort, it is a new species of malpractice action first recognized in 1990. Moreover, K.S.A. 2020 Supp. 60-1906 is appropriately applied to the parents because it was enacted before their cause of action accrued under the Arche rule.”
Source Tillman v. Goodpasture, No. 117,439.
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