The allegations in Ts claim reveal-but do not purport to contend with, let alone resolve-the differences in perspective between the interests of the parents and the interests of T in relation to the decisions to conceive and bear him. Plaintiffs failure to acknowledge and provide a coherent way to harmonize those differences counsels against recognition of a claim that ultimately depends on the parents informed decision as being sufficient to protect the interests of T in the circumstances alleged here.
Beyond those differences in perspective between the parents interests and the interests of T under the facts alleged in Ts claim, a fundamental conceptual difficulty lies in determining whether a preconceived child has an interest in remaining in a state of nonexistence. That is a different endeavor from determining what interests a child would have after he or she is conceived and born. For example, once conceived and born, a child has an interest in avoiding physical injury, even if the injury is caused by conduct that occurred before the child was conceived and born. Ts claim, however, depends on the premise that a preconceived child has an interest in avoiding conception and birth in the first place.
Determining whether a preconceived child has an interest in not being born, and the extent to which that interest is potentially inconsistent with the parents interest in reproductive choice, directly raises the issue of nonexistence. Would a preconceived child want to be born even if doing so entailed the risk of a genetic disorder? Would it depend on the degree of risk? Is it possible that a preconceived child would want to be born even if a genetic disorder were a certainty? Or would a preconceived child prefer not to be born even if there were no chance of a genetic disorder? Answering those questions requires the comparison that Ts argument attempts to avoid-the comparison between life and nonexistence.
It is insufficient to answer that a wrongful life claim does not necessarily make any statement about the value that a preconceived child places on life itself, but simply asserts that such a child would prefer never having lived at all to living in her afflicted state. That answer only underscores the problem: Ts theory of relief starts from the premise that, if defendants had not been negligent, he would not have been born. Thus, as Ts claim is pleaded, and regardless of how the injury is defined, we cannot avoid the question of how a preconceived child would value a life-whether impaired or not-compared to remaining in a state of nonexistence.
The question of how a preconceived child would value life as compared to nonexistence is not a question of how T, himself, subjectively answered that question before his conception and birth. So framed, that question presupposes an obvious factual impossibility. Instead, as other courts have explained, the relevant question is of what value to [T] would his non-existence have been? Lininger , 764 P.2d at 1210. However, as those courts further have explained, even that question is entirely too metaphysical to be understood within the confines of law, if indeed, the question has any meaning at all. Id. ; see also Gleitman v. Cosgrove , 49 N.J. 22, 28, 227 A.2d 689, 692 (1967)abrogated by Berman v. Allan , 80 N.J. 421, 404 A.2d 8 (1979) (The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination.).
T offers no suggestion for how to answer that question and cites no judicial decision that has endeavored to answer it. See Kassama v. Magat , 368 Md. 113, 148, 792 A.2d 1102, 1123 (2002) (noting that every court that has considered a wrongful life claim has agreed that it is beyond at least the practical ability, if not the underlying competence, of the law to compare life to nonexistence). Even the three courts that have recognized limited claims of plaintiffs alleging that they should not have been born have deemed the question of how a preconceived person would value nonexistence unanswerable. See Procanik by Procanik v. Cillo , 97 N.J. 339, 353, 478 A.2d 755, 763 (1984) (The philosophical problem of finding that such a defective life is worth less than no life at all has perplexed [previous courts] * * *. We need not become preoccupied, however, with these metaphysical considerations.); Harbeson v. Parke-Davis, Inc. , 98 Wash. 2d 460, 482, 656 P.2d 483, 496 (1983) ([M]easuring the value of an impaired life as compared to nonexistence is a task that is beyond mortals, whether judges or jurors.); Turpin v. Sortini , 31 Cal. 3d 220, 236, 643 P.2d 954, 964, 182 Cal.Rptr. 337 (1982) ([W]hat the plaintiff has lost is not life without pain and suffering but rather the unknowable status of never having been born.).
Those three decisions, which allowed recovery only for medical expenses, have been criticized for ignoring the task of identifying a cognizable injury. See, e.g. , Lininger , 764 P.2d at 1212 (We can only conclude that the Washington Supreme Court, as did the Supreme Courts of California and New Jersey, chose to disregard the childs failure to prove an injury in light of its perception that the equities of permitting the child to recover special damages were entitled to greater weight.); Siemieniec v. Lutheran Gen. Hosp. , 117 Ill. 2d 230, 248, 512 N.E.2d 691, 701, 111 Ill.Dec. 302 (1987)overruled on other grounds by Clark , 353 Ill.Dec. 254, 955 N.E.2d 1065 (Although the California, Washington, and New Jersey decisions allowed limited recovery while failing to establish the logical basis for the wrongful life action-the existence of harm or injury to the impaired child-this court is unwilling to discard the requirement of a legally cognizable injury in a negligence medical malpractice case.).
We agree with that critique. Identifying an injury to a legally protected interest is not a merely technical issue. It is central to establishing negligence liability. Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, 4 Harper, James and Gray on Torts § 20.1 at 93 (3d ed 2007) (Negligence has traditionally been considered not to be a ground of liability unless it causes injury or damage to some interest that the law recognizes and protects.). The few courts that have permitted awards of economic damages for wrongful life have attempted to apportion the childs injury based on the idea that the defendant caused the economic loss flowing from the childs disability, but not the childs entire existence. But, that approach fails to acknowledge that the premise of such a claim-including the claim pleaded here-is that defendants negligence caused Ts very existence in an impaired state. By artificially apportioning the legal consequences of what is really an indivisible injury, the courts that have recognized claims like Ts have adopt[ed] a mix-and-match approach to apportionment of liability. W. Ryan Schuster, Rights Gone Wrong: A Case Against Wrongful Life , 57 Wm. & Mary L. Rev. 2329, 2340 (2016). Such an approach fails to confront the necessary task of identifying a legally protected interest that was violated by the defendants negligent conduct. In short, Ts claim does not fit coherently into the framework of common-law negligence because it fail[s] to adequately describe the legally compensable injury without defining the injury as the plaintiffs very existence. Id. at 2337.
In response, T argues that such criticisms take an overly technical view of negligence law and have resulted in decisions that have required an innocent party to endure burdens caused by a defendants negligent conduct. The objectives of negligence law, according to T, are best served when a negligent party incurs the costs of his or her negligent conduct. T contends that our conception of a compensable injury should be sufficiently malleable to meet those objectives.
At first blush, Ts argument arguably finds some support in this courts recent decision in Smith v. Providence Health & Services . There, we recognized, as a matter of first impression, a medical negligence claim based on a loss-of-chance theory of injury. 361 Or. at 482, 393 P.3d 1106. Although, as alleged, the plaintiff in that case could not establish that the defendants negligence caused his failure to recover from a stroke, the plaintiff alleged facts showing that the defendants negligence caused him to lose a 33 percent chance of recovering from his stroke. This court allowed the plaintiff to proceed with his claim by defining the injury as the lost chance to recover, rather than defining the injury as the failure to recover. Id. at 479, 393 P.3d 1106 ; see also id. at 467-71, 393 P.3d 1106 (comparing causation-based theories and injury-based theories for loss-of-chance claims).
However, on closer analysis, the comparison with a loss-of-chance injury only highlights the difficulty with Ts claim. A loss-of-chance injury is grounded on the mutual expectation of service and reliance that defines the physician-patient relationship. If a patient has a 33 percent chance of recovering at the time of seeking treatment from a physician, then the patient fully expects, and relies upon, the physician to preserve that 33 percent chance. A physician who fails to take reasonable care to preserve that chance clearly has acted adversely to the patients interests. In short, under the loss-of-chance theory, it is the alleged medical malpractice itself that makes it impossible for the plaintiff to prove that he or she would have achieved that better outcome. Id. at 473, 393 P.3d 1106.
In contrast, Ts claim requires us to identify the interests that we should attribute to a preconceived child-specifically, whether a preconceived child has an interest in remaining in a state of nonexistence-and determine how those interests relate to the interests of parents to whom a physician owes a duty of professional care. Although the same or similar analysis would apply in other cases where a plaintiff alleges that, but for the defendants negligence, the plaintiff would not have been born, the specific facts alleged in this case underscore the difficulty in determining the interests of a preconceived child.
As noted, as alleged, the parents had about a 25 percent chance of having a child with DMD and about a 75 percent chance of having a child without DMD. Ts claim rests on the premise that, if the parents had been informed of those risks, they would not have conceived and born another child. Therefore, if defendants had informed the parents of those risks, defendants would have deprived the parents preconceived child of both a 25 percent chance of a life with DMD and a 75 percent chance of a life without DMD. Is it in the interest of the preconceived child for defendants to inform the parents of those risks? It is difficult enough to determine whether a preconceived child has an interest in nonexistence when the alternative is a life with DMD. According to T, a life with DMD is shorter and involves more physical pain and medical expenses than a life without DMD. But it is not at all clear that those alleged facts make nonexistence preferable to a life with DMD. Further, how would a preconceived child value the 75 percent chance of being born without DMD as compared to nonexistence? How would the value of that 75 percent chance compare to the 25 percent chance of being born with DMD? And how significant are those differences to a preconceived child, given that, even a child without DMD can expect to incur substantial medical costs and emotional distress over the course of his or her life? The interests of a preconceived child in these circumstances are sufficiently imponderable that recognizing Ts claim would require a departure from the traditional negligence principles that justified this courts recognition of the loss-of-chance theory of injury.
None of the courts that have recognized a limited right to recover economic damages in such claims has effectively confronted the difficulties that we have discussed. Instead, they primarily have resorted to practical or sympathetic considerations. For example, among the reasons that a few courts have given for recognizing a limited right to recover economic damages in similar claims is the concern for uncompensated medical and other expenses that a disabled child might incur as an adult. See, e.g ., Turpin , 31 Cal. 3d at 238, 182 Cal.Rptr. 337, 643 P.2d at 965. In that regard, we note that, for whatever reason, the parents here have not sought in their own claim to recover damages for Ts economic expenses in adulthood. However, ORS 109.010 provides:
Parents are bound to maintain their children who are poor and unable to work to maintain themselves; and children are bound to maintain their parents in like circumstances.
This court has held that the duty of support imposed by ORS 109.010 encompasses adult as well as minor children. Haxton and Haxton , 299 Or. 616, 705 P.2d 721 (1985). In Haxton , this court held that the statutory duty of parental support under ORS 109.010 could be enforced in a direct action by a mentally disabled adult child against his parent. Id . at 631, 705 P.2d 721.
We note that, in comparable circumstances, the New Hampshire Supreme Court relied on a parental support obligation toward adult children in concluding that a disabled childs parents could recover extraordinary costs incurred both before and after their child attains majority in a medical negligence action for wrongful birth. Smith v. Cote , 128 N.H. 231, 245, 513 A.2d 341, 350 (1986). The court noted that some courts do not permit recovery of post-majority expenses, on the theory that the parents obligation of support terminates when the child reaches twenty-one, but it further noted that, in New Hampshire, parents are required to support their disabled adult offspring. Id ., 513 A.2d at 350. As a consequence, in rejecting the childs separate claim for economic damages, the court stated:
[W]e are mindful that controversy regarding the Turpin rule may have little practical significance when recovery for wrongful birth is permitted. The same extraordinary expenses Turpin would allow in wrongful life actions are covered by our rule allowing parental recovery of post-majority expenses. Because such expenses cannot be recovered by both parent and child, the net effect is the same. Recognition of the wrongful life action would make a substantial difference only in limited circumstances, as when the statute of limitations bars the parental but not the filial claim (as in Procanik ) or when the parents are unavailable to sue.
Id. at 251, 513 A.2d at 354.
In sum, although we do not reach the issue whether the parents could recover economic damages from defendants for costs of Ts support in adulthood, it is because of the parents own pleading decision in this case, not because of an established substantive limitation on their ability to recover post-majority economic damages in their own claim.
However, the doctrinal implications of recognizing Ts right to recover such damages would be significant. To summarize: Without a principled way to determine the relative values of life and nonexistence under the circumstances alleged in this case, we cannot conclude that T had a legally protected interest in remaining in a state of nonexistence. See, e.g ., Lininger , 764 P.2d at 1212 (Our inability to find an injury to [child] does not, of course, rely on any claim that recognizing such an injury constitutes a disavowal of the sanctity of human life, but only on the fundamental conceptual impossibility of determining what that injury is.). Nor can we conclude that defendants caused T to suffer an injury to a legally protected interest. Moreover, we conclude that the line that the very few courts (and none since the mid-1980s) that have permitted limited recovery have drawn between the recoverability of economic damages and noneconomic damages in grappling with those problems-although commendably sympathetic-lacks a sound foundation in doctrinal principle. In short, were we to disregard the causation and injury requirements for Ts negligence claim, it would be difficult to envision any principled basis for refusing to extend the reasoning to other elements and other situations. Smith , 128 N.H. at 252, 513 A.2d at 354 (quoting Nelson v. Krusen, 678 S.W.2d 918, 931 (Tex. 1984) (Robertson, J., concurring) ).
It bears emphasis that we perceive no conceptual inconsistency between our recognition of parents claim and our unwillingness to recognize Ts pleaded claim. As we and other courts have observed, the objection that a medical negligence claim by the parents involving the birth of a disabled child depends on the valuation of human life is not well taken. Under the parents theory of relief, the relevant injury is not the resulting life, but the negligent deprivation of information that was important to the parents protected interest in making informed reproductive choices. Plowman , 896 N.W.2d at 403. Although one aspect of the parents damages may consist of costs associated with the care and education of a child with disabilities, those damages are recoverable only if they were caused by defendants violation of that protected interest. Id . Ts theory is fundamentally different: As pleaded, and despite an effort to apportion his alleged damages to avoid the problem, Ts claim necessarily depends on the premise that T had a legally protected interest in not being born, rather than risk being born with DMD. As such, it is subject to the objections that we have described.
Finally, we recognize that, whenever a court denies recovery at common law to a sympathetic plaintiff, especially where expanding scientific knowledge or social principles are at play, it exposes itself to criticism for being on the wrong side of history. And, it is true that the common law typically has found ways over time to provide appropriate redress for civil wrongs by applying settled or advancing principles to novel circumstances. But, whatever the merits of other possible theories to recover the damages that T seeks may be, there is too much gap in settled principles of negligence law to bridge for us to recognize the claim that he has pleaded here. We therefore hold that T has failed to allege facts sufficient to state a cognizable claim for negligence.
The decision of the Court of Appeals is affirmed and the judgment of the circuit court is affirmed in part and reversed in part.
WALTERS, J., dissenting in part and concurring in part.
Ts brother, M, has Duchenne muscular dystrophy (DMD). Ts parents allege that defendants were negligent in failing to diagnose Ms medical disorder and that, as a result, they conceived and gave birth to T, who also has DMD. We permit Ts parents to seek recovery for the economic and emotional damages that flow from Ts DMD, but we leave T, the child with the disorder, without a remedy. I respectfully dissent.
The majority refuses to recognize Ts claim because it concludes that, no matter how that claim is framed, we cannot avoid the question of how a preconceived child would value a life-whether impaired or not-compared to remaining in a state of nonexistence, and that that question is entirely too metaphysical to be understood within the confines of law, if indeed the question has any meaning at all. Tomlinson v. Metropolitan Pediatrics, LLC , 362 Or. 431, 465, 412 P.3d 133, 153 (2018) (internal quotation omitted). Those imponderables, the majority insists, present two obstacles to recognition of Ts claim: They may preclude T from proving that defendants negligence caused him harm, and they certainly preclude him from establishing that he has an interest of a kind that the law protects against negligent invasion. Id. at 460, 412 P.3d at 150 (internal quotation omitted). I disagree. It is not necessary to compare the value of life and nonexistence to establish that T suffered harm of the type that the law protects.
To prove harm, T need not establish, as the majority asserts, that he is worse off having been born with DMD than he would have been had he not been born at all. 362 Or. at 458, 412 P.3d at 149. As this court explained in Smith v. ProvidenceHealth & Services , 361 Or. 456, 393 P.3d 1106 (2017), to prove harm, a plaintiff must prove only resulting harm to the plaintiff measurable in damages. Id. at 460, 393 P.3d 1106 (quoting Zehr v. Haugen , 318 Or. 647, 653-54, 871 P.2d 1006 (1994) ). Medical expenses and emotional distress fit that description. Oregon law does not require that a plaintiff prove, in addition, that she is generally worse off than she would have been absent those expenses and that distress.
When a defendant causes a plaintiff to incur economic costs and emotional distress, the plaintiff can seek damages for that harm regardless of the fact that, as a result of a defendants negligence, the plaintiffs circumstances are improved. Restatement (Second) of Torts § 920 (1979). Thus, as explained in the Restatement , if A tortiously imprisons B for two weeks, B is entitled to bring a claim for false imprisonment against A, even if at the end of the imprisonment B obtains large sums for writing an account of the imprisonment. Restatement (Second) § 920 illustration 6. However, when a defendants tortious conduct has caused harm to the plaintiff, and, in doing so, also has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in the mitigation of damages. Restatement § 920 ; see also 362 Or. at 453, 412 P.3d at 146-47 (so stating). So, for example, if a surgeon performs an unprivileged operation resulting in pain and suffering, it may be shown that the operation averted future suffering. Restatement (Second) § 920 comment a.
In assessing Ts parents claim, the majority recognizes and applies that Restatement rule. 362 Or. at 453-54, 412 P.3d at 146-47. That has two important consequences for an assessment of Ts claim. The first is that the benefits conferred by defendants negligence-Ts life and its accompanying joys-cannot be a basis for denying Ts claims; they can only be a basis for mitigating his damages. The Restatement rule is a rule that requires mitigation of damages; it is not a rule used to determine the legal viability of a claim.
The second consequence that follows from application of section 920 is that Ts damages can be calculated without comparing the relative values of life and nonexistence. As to Ts economic damages, section 920 allows an offset only when a defendants negligence confers special benefits to the interest of the plaintiff that was harmed. Restatement (Second) § 920 ; see also 362 Or. at 453, 412 P.3d at 146 (so stating). Thus, as explained in the Restatement , and again as the majority recognizes in analyzing Ts parents claim, damages resulting from an invasion of one interest are not diminished by showing that another interest has been benefitted. Restatement (Second) § 920 comment b; see also 362 Or. at 453-54, 412 P.3d at 146-47 (so stating). For example, damages for pain and suffering are not diminished by showing the earning capacity of the plaintiff has been increased by the defendants act. Restatement (Second) § 920 comment b. Conversely, and as relevant here, section 920 does not permit a jury to offset the economic damages that it awards T by the emotional benefits that accompany his life. To calculate Ts economic damages, a jury need only calculate Ts medical expenses; it need not determine the value of Ts life, the value of nonexistence, or whether T would prefer one to the other.
The same is true for Ts emotional distress damages. Section 920 permits a jury to offset the emotional benefits that T actually experiences against the emotional harm that he actually suffers. A jury would not be required to compare the relative benefits of life and nonexistence to make that calculation.
Furthermore, even if Ts harm were to depend, in some way, on a comparison between nonexistence and life, Ts claim would not fail because he could not prove, as a factual matter, the precise nature of nonexistence. A jury could conclude that, if T had not been born, he would not have had DMD or experienced its associated economic and noneconomic burdens. And even if that were beyond a jurys ken, a court could take notice that if T had not been born, he would not have had legal obligations to pay medical bills or emotional distress compensable in damages. When T was born with DMD and its attendant burdens, the legal nature of his experience changed and he suffered cognizable harm.
Understandably, then, the majority is loath to decide, and does not decide, that T cannot establish that he was harmed by defendants negligence. Instead, the majority concludes that Ts interest in avoiding that harm is not legally cognizable.
The first step in deciding whether a plaintiffs interest is legally protected against invasion is to correctly describe the interest at issue. This court describes the plaintiffs interest as an interest in avoiding the harm caused by the wrongful act for which the plaintiff seeks recovery. For instance, in Philibert v. Kluser , the court described the simplest legally protected interest as an interest in being free from physical harm at the hands of another. 360 Or. 698, 703, 385 P.3d 1038 (2016) (internal quotation omitted). And, in Philibert , the court granted legal protection to the plaintiffs interest in avoiding certain emotional harm-the emotional distress that occurs in observing the physical injury of a close family member. Id. at 708, 385 P.3d 1038. Similarly, in Smith , the court granted legal protection to the plaintiffs interest in avoiding a loss of a chance of a better medical outcome when that loss of chance resulted in physical harm. 361 Or. at 477, 484-85, 393 P.3d 1106 ; see also McEvoy v. Helikson , 277 Or. 781, 788, 562 P.2d 540 (1977) (interest in avoiding the emotional distress that arises when a professional defendant violates a legal duty designed to protect a nonclient third party against foreseeable harm); Hovis v. City of Burns , 243 Or. 607, 613, 415 P.2d 29 (1966) (interest in avoiding emotional distress that arises when a defendant negligently handles a spouses remains); Hinish v. Meier & Frank Co. , 166 Or. 482, 503-04, 113 P.2d 438 (1941) (interest in avoiding emotional distress that arises when a defendant invades a plaintiffs privacy by making a false statement of support for particular legislation). In each of those circumstances, the court considered whether to grant legal protection to the plaintiffs interest in avoiding the harm that the defendant allegedly had caused.
In each of those instances, the court then went on to determine, at the second step in the analysis, whether the plaintiffs interest in avoiding the claimed harm was of sufficient importance as a matter of public policy to merit protection. Philibert , 360 Or. at 705, 385 P.3d 1038 (internal quotation omitted). So, for instance, in Philibert , the court considered the importance of avoiding liability in an indeterminate amount for an indeterminate time to an indeterminate class. Id. at 708, 385 P.3d 1038 (quoting Harris v. Suniga , 344 Or. 301, 308, 180 P.3d 12 (2008) ). In Philibert , the court was persuaded that recognizing the plaintiffs interests in avoiding emotional distress would be consistent with that principle of tort law because the plaintiffs were family members who had witnessed the traumatic death of their brother. Id. at 714-16, 385 P.3d 1038. Likewise, in Smith , the court considered the tort systems purpose to place the risk of negligent conduct on the responsible party and prevent future harm, the tort law principles that proof should be neither speculative nor subject to manipulation, and the public concern that the chosen rule of law not adversely affect medical practice. 361 Or. at 479-80, 393 P.3d 1106. The court was persuaded that recognizing the plaintiffs interest in avoiding a loss of chance that resulted in physical harm would accord with those principles and not have negative effects. Id. at 482, 393 P.3d 1106.
In this case, the majority starts off on the wrong foot. The majority incorrectly describes Ts interest as an interest in avoiding life or remaining in a state of nonexistence. 362 Or. at 464, 412 P.3d at 152-53. T does not claim that before his birth he was able to form thoughts or consider whether he preferred to be born or avoid life, to exist or remain in a state of nonexistence. Rather, T claims that, due to defendants negligence, he was in fact born, and born with DMD. The majority should have followed precedent and described Ts interest as an interest in avoiding that harm and recovering the economic and noneconomic damages that flow from that harm.
The majority then veers further from the path of precedent and fails to consider the previously identified public policy considerations that weigh in favor of recognizing Ts claim: Because T is a member of Ms immediate family and has DMD, T is a member of a limited class and his damages are not speculative or subject to manipulation. Recognition of Ts interest does not impose any greater obligation on physicians than already exists; it requires only that physicians act reasonably to diagnose the medical conditions of their minor patients and communicate those diagnoses to their parents. And recognition of Ts claim furthers one of the principles that underlies tort law-to distribute the risks of injury to or among responsible parties. Smith, 361 Or. at 480, 393 P.3d 1106.
Rather than addressing those factors, the majority takes up the question of whether, and to what extent, recognizing Ts claim would interfere with or impair the obligations that [defendants] owe to others. Id. at 462, 393 P.3d 1106. That question is easily answered: Recognizing Ts claim would not interfere with or impair the obligations that defendants owed to their patient, M, or Ms parents.
In recognizing Ts parents claim, the majority explains that defendants obligation to exercise professional skill on behalf of M also required them to reasonably perform other tasks for those who were intended beneficiaries of their skills, including Ms parents. The majority concludes that the applicable standard of care required defendants to diagnose Ms genetic disorder and communicate it to his parents. 362 Or. at 447, 412 P.3d at 143. And, the majority says, satisfying the parents reasonable expectations merely required defendants to provide M with the level of care that a reasonably prudent, careful, and skillful physician would have otherwise provided to M. 362 Or. at 448, 412 P.3d at 143. Recognition of Ts claim requires no more. Like his parents, T is an intended beneficiary of defendants diagnosis and recognizing Ts claim would not interfere with or impair the obligations that defendants owed to their patient, M, or his parents.
Rather than disputing that conclusion, the majority asserts that Ts interest is distinct from, and potentially at odds with, the parents interests. 362 Or. at 462, 412 P.3d at 151. That is, of course, an entirely different issue, but one that also is easily addressed. Ts interest may be distinct from his parents but there is no tension between them. Like Ts interest, Ts parents interest is in avoiding the consequences of defendants negligence and the burdens associated with Ts medical disorder. The majority so describes Ts parents interest throughout much of its opinion. See 362 Or. at 460, 412 P.3d at 150 (majority determines that defendants could be required to affirmatively protect the parents economic and emotional interests ) (emphasis added); id. at 443, 412 P.3d at 141 (majority reasons that there must be a source of liability in addition to foreseeability to protect the parents economic and emotional interests ) (emphasis added). The majority is able to identify tension between the two interests only by describing Ts interest as an interest in being conceived and born (or not being conceived and born) and his parents interest as an interest in deciding whether or not to conceive and bear that child. 362 Or. at 463, 412 P.3d at 152. That error is fundamental. As noted, Ts interest is not an interest in being conceived and born or being in a state of nonexistence. And his parents interest is not an interest in having a reproductive choice. Although Ts parents allege, as a fact, that defendants negligence caused the loss of their reproductive choice, they do not seek a remedy for that loss in and of itself. Rather, they seek the same thing that T seeks-a remedy for the consequences of that loss.
In this case, Ts parents had no reproductive choice. Therefore, there could be no tension between what they chose and what T would want them to choose. What happened, happened. T was conceived and born with DMD and its associated burdens. As a result, both T and his parents suffered economic and noneconomic harm and have the same legal interest in recovering damages for that harm. If there is a difference between T and his parents, it is that T alone experiences the physical consequences of defendants negligence. Ts claim is at least as important and deserving of legal protection as is his parents.
I understand that the majority is not alone in refusing to extend legal protection to children such as T. A number of courts have ignored the anomaly of permitting parents, but not children, to bring claims like those asserted in this case, resting their decisions on differing policy grounds. See, e.g. , Phillips v. US , 508 F.Supp. 537, 543 (DSC 1980) (rejecting childs claim because of the policy recognizing the preciousness and sanctity of human life); Kassama v. Magat , 368 Md. 113, 149, 792 A.2d 1102, 1123 (2002) (denying childs wrongful life claim and stating that the crucial question, a value judgment about life itself, is too deeply immersed in each persons own individual philosophy or theology to be subject to a reasoned and consistent community response, in the form of a jury verdict); Elliot v. Brown , 361 So.2d 546, 548 (Ala. 1978) (denying childs claim and stating that a legal right not to be born is alien to the public policy of this State to protect and preserve human life). But some thoughtful courts have disagreed. See Procanik by Procanik v. Cillo , 97 N.J. 339, 352, 478 A.2d 755, 762 (1984) (stating that [w]hatever logic inheres in permitting parents to recover for the cost of extraordinary medical care incurred by a birth-defective child, but in denying the childs own right to recover those expenses, must yield to the inherent injustice of that result); Harbeson v. Parke-Davis, Inc. , 98 Wash. 2d 460, 479, 656 P.2d 483, 495 (1983) (adopting Turpin s acknowledgment that it would be illogical to allow parents but not the child to recover economic damages for childs disabling condition); Turpin v. Sortini , 31 Cal. 3d 220, 238, 643 P.2d 954, 965, 182 Cal.Rptr. 337 (1982) (stating that it would be illogical and anomalous to permit only parents, and not the child, to recover for the cost of the childs own medical care). And some strong dissents have been penned.
Like others recognizing the anomaly that a decision like the majoritys permits, I too write in dissent. In doing so, I do not seek to upset settled principles of negligence law. Nor do I look away from those principles out of sympathy for T. Instead, I write to advocate for consistent adherence to those principles. I cannot identify a legal basis for denying T, the child with the disabling condition that is the gravamen of his parents claim, the right to seek the same recovery that is permitted to his parents.
I respectfully dissent.
Kistler, J., joins in this dissenting opinion.
See Mark Strasser, Wrongful Life, Wrongful Birth, Wrongful Death, and the Right to Refuse Treatment: Can Reasonable Jurisdictions Recognize All but One? , 64 Mo. L. Rev. 29, 63-64 (1999).
None of the three courts that have recognized wrongful life claims have allowed the recovery of noneconomic damages. In Turpin , for example, the California court denied recovery of such damages because (1) it is simply impossible to determine in any rational or reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born, and (2) even if it were possible to overcome the first hurdle, it would be impossible to assess general damages in any fair, nonspeculative manner.Turpin , 31 Cal. 3d at 235, 182 Cal.Rptr. 337, 643 P.2d at 963.
As Schuster further notes:
Classifying the injury as indivisible might fit more neatly within existing tort doctrine, but would force courts to consider the plaintiffs entire life, both defect and existence, as the harm-the result they have attempted to avoid.
Id. at 2338.
The court in Haxton also discussed the Relative Responsibility Law, former ORS 416.010 to ORS 416.280 (1985). Id . at 626, 705 P.2d 721. That law has since been repealed. Or. Laws 2001, ch. 900, § 261. However, the foundation of the courts holding in Haxton was ORS 109.010, which remains unchanged to this day.
I agree that Ts parents claim is cognizable and concur with the majoritys decision in that respect.
Nonexistence is a question that poets have pondered. For instance, Joseph Brodsky ends his poem Axiom:
"And heeding the shrill Amscray! Beat it! Vanish! Grab your junk and get lost! space itself, alias the backdrop of life, rendered blind by a surfeit of plots, heads toward pure time, where no one applauds.
Dont be afraid, though: Ive been there. There in its bowels looms a huge, wrinkle-spinning wheel, its roots plugged into a raw material whose supply we, the deposits, eagerly multiply."
Joseph Brodsky, So Forth 32 (1996). And in one of his Octets, Osip Mandelstam seems to suggest that maybe there is not such a state as non-being:
"As the whisper perhaps evolved before lips,
And leaves spun and circled long before there were trees,
So those, it may be, whom our experience endows,
Before such experience have acquired their traits."
Osip Mandelstam: Fifty Poems 84 (1934) (Bernard Meares, trans., 1977).
In an early poem, The Trial By Existence, Robert Frost imagines such a choice. Frost describes souls gathering for birth and choosing whether to step forth against the uttermost of earth. As Frost describes it, souls make that choice, but the pure fate to which you go/Admits no memory of choice. Robert Frost: Collected Poems, Prose, & Plays 28 (Richard Poirier & Mark Richardson eds., 1995).
In reaching that conclusion, the majority draws an analogy to cases in which physicians have failed to warn of the risks posed by a patients contagious disease. Id. at 448-49, 412 P.3d at 143-44. Courts have permitted nonpatient family members to make claims against such physicians and have not limited those claims to nonpatients with whom the physician has a relationship. See Hofmann v.Blackmon , 241 So.2d 752 (Fla. Dist. Ct. App. 1970), cert. den. , 245 So.2d 257 (Fla. 1971) (physician owes a duty to minor child who is a member of immediate family and living with patient to inform those charged with minors well-being of the nature of contagious disease). Immediate family members who live with a patient are intended beneficiaries of the required warnings and are entitled to the same protection afforded to family members with whom a physician communicates.
As the court explained in Turpin v. Sortini , 31 Cal. 3d 220, 233-34, 643 P.2d 954, 962, 182 Cal.Rptr. 337 (1982) :
Of course, in the wrongful life context, the unborn child cannot personally make any choice as to the relative value of life or death. At that stage, however, just as in the case of an infant after birth, the law generally accords the parents the right to act to protect the childs interests. As the wrongful birth decisions recognize, when a doctor or other medical care provider negligently fails to diagnose an hereditary problem, parents are deprived of the opportunity to make an informed and meaningful decision whether to conceive and bear a handicapped child. (See, e.g. , Robak v. United States, supra , 658 F.2d 471, 476 ; Berman v. Allan, supra , 404 A.2d 8, 14 ; Jacobs v. Theimer, supra , 519 S.W.2d 846, 849 ; cf. Cobbs v. Grant (1972) 8 Cal. 3d 229, 242-243, 104 Cal.Rptr. 505, 502 P.2d 1.) Although in deciding whether or not to bear such a child parents may properly, and undoubtedly do, take into account their own interests, parents also presumptively consider the interests of their future child. Thus, when a defendant negligently fails to diagnose an hereditary ailment, he harms the potential child as well as the parents by depriving the parents of information which may be necessary to determine whether it is in the childs own interest to be born with defects or not to be born at all.
In those cases, the courts did not permit the child to recover emotional distress damages, although they allowed the parents to do so. I do not see the distinction that the courts drew as valid, and neither did some of the dissenting judges in those cases. See Procanik , 97 N.J. 339, 357, 478 A.2d 755, 765 (1984) (Handler, J., dissenting in part) ([The majoritys] position reflects a reluctance, perhaps understandable, to deal with the subtle but terrible realities of the psychological, mental, and emotional damage that ensue from the birth of a congenitally defective child in these circumstances. I accept the subtlety and elusiveness of these human conditions but I do not for a moment concede that injury in this form presents insurmountable problems in fashioning relief. (Internal quotation omitted.)); Turpin , 31 Cal. 3d at 240, 182 Cal.Rptr. 337, 643 P.2d at 966 (Mosk, J., dissenting) (An order is internally inconsistent which permits a child to recover special damages for a so-called wrongful life action, but denies all general damages for the very same tort. While the modest compassion of the majority may be commendable, they suggest no principle of law that justifies so neatly circumscribing the nature of damages suffered as a result of a defendants negligence.). Perhaps the results in those cases can be explained as implicitly deciding, under the mitigation rule discussed at 362 Or. at 474, 412 P.3d at 158 (Walters, J., dissenting), that the special emotional benefits of a disabled childs life offset the emotional damages that the child suffers. I would leave that question to the jury.
See, e.g. , Lininger v. Eisenbaum , 764 P.2d 1202, 1214 (Colo. 1988) (Mullarkey, J., dissenting in part) (Since the claims of [the child] and his parents are so closely related and, indeed, mutually dependent, I see no reason to deny one while allowing the other to stand.); Ellis v. Sherman , 512 Pa. 14, 22, 515 A.2d 1327, 1330 (1986) (Larsen, J., dissenting) (The majority also concludes that the childs injury in this case is not a legal injury because his disease was not caused by the doctors but by natural process. * * * Any argument that this life of suffering is not the natural and probable consequence of [the doctors] misconduct is rank sophistry. (Quoting Speck v. Finegold , 497 Pa. 77, 92, 439 A.2d 110, 118 (1981).) ); Berman v. Allan , 80 N.J. 421, 441, 404 A.2d 8, 19 (1979) (Handler, J., dissenting in part) (The Court in this case, as in Gleitman before it, fails to accord a cause of action to the afflicted infant plaintiff. This denial, I most respectfully urge, is wrong.).