Tomlinson v. Metropolitan Pediatrics, LLC

No. 7 February 8, 2018 431

IN THE SUPREME COURT OF THE

STATE OF OREGON

Kerry TOMLINSON

and Scott Tomlinson, individually; and

Kerry Tomlinson as guardian ad litem for

her minor son Edward Tomlinson,

Respondents on Review,

v.

METROPOLITAN PEDIATRICS, LLC,

an Oregon limited liability corporation;

Legacy Emanuel Hospital & Health Center,

dba Legacy Emanuel Pediatric Development and

Rehabilitation Clinic; and Mary K. Wagner, M.D.;

Petitioners on Review,

and

LEGACY EMANUEL HOSPITAL & HEALTH CENTER,

an Oregon non-profit corporation,

dba Legacy Emanuel Health Center;

and Sharon D. Butcher, CPNP,

Defendants.

(S063902) (Control)

Kerry TOMLINSON

and Scott Tomlinson, individually and

Kerry Tomlinson as guardian ad litem for

her minor son Edward Tomlinson,

Petitioners on Review,

v.

METROPOLITAN PEDIATRICS, LLC,

an Oregon limited liability corporation;

Legacy Emanuel Hospital & Health Center,

dba Legacy Emanuel Pediatric Development and

Rehabilitation Clinic; and Mary K. Wagner, M.D.,

Respondents on Review,

and

LEGACY EMANUEL HOSPITAL & HEALTH CENTER,

an Oregon non-profit corporation,

dba Legacy Emanuel Health Center

432 Tomlinson v. Metropolitan Pediatrics, LLC

and Sharon D. Butcher, CPNP,

Defendants.

(S063956)

(CC 110911971; CA A151978;

SC S063902(Control), S063956)

On review from the Court of Appeals.*

Argued and submitted November 15, 2016.

Michael J. Estok, Lindsay Hart, LLP, Portland, argued

the cause and filed the briefs for petitioners on review/

respondents on review Metropolitan Pediatrics, LLC, and

Mary K. Wagner, MD. Lindsey H. Hughes, Keating Jones

Hughes, P.C., Portland, argued the cause and filed the

briefs for petitioner on review/respondent on review Legacy

Emanuel Hospital & Health Center. Also on the briefs was

Hillary A. Taylor, Portland.

Kathryn H. Clarke, Portland, argued the cause and filed

the briefs for respondents on review/petitioners on review

Kerry Tomlinson and Scott Tomlinson. Also on the briefs

were William A. Gaylord, Linda K. Eyerman, and Craig A.

Nichols, Portland.

Travis Eiva, Eugene, filed the brief on behalf of amicus

curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Nakamoto, and Flynn, Justices, and Brewer and Landau,

Senior Justices pro tempore.**

BREWER, S. J.

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., filed an opinion concurring in part and dis-

senting in part, in which Kistler, J., joined.

______________

**  Appeal from Multnomah County Circuit Court, Jean Kerr Maurer, Judge.

275 Or App 658, 366 P3d 370 (2015).

**  Baldwin, J., retired March 31, 2017, and did not participate in the decision

of this case. Duncan and Nelson, JJ., did not participate in the consideration or

decision of this case.

Cite as 362 Or 431 (2018) 433

Case Summary: Parents gave birth to a child suffering from a genetic disabil-

ity. Parents and child brought negligence claims against physicians for failing

to timely diagnose the same genetic disability in parents’ older child, who had

been a patient of physicians. Although neither parents nor the younger child were

patients of physicians, they alleged that, if physicians had timely diagnosed the

disability in the older child, then parents would not have conceived and born

the younger child. The trial court dismissed both the parents’ claim and the

child’s claim. The Court of Appeals affirmed the dismissal of the child’s claim but

reversed the dismissal of the parents’ claim. Held: (1) parents have alleged facts

that, if proved, could establish a legally protected interest in receiving informa-

tion from physicians that implicated parents’ reproductive choices; (2) based on

the facts alleged, the parents may seek damages for emotional distress; and (3) a

child may not bring a negligence claim premised on the allegation that he or she

should not have been born.

The decision of the Court of Appeals is affirmed, and the judgment of the

circuit court is affirmed in part and reversed in part.

434 Tomlinson v. Metropolitan Pediatrics, LLC

BREWER, S. J.

This is an appeal from a trial court judgment dis-

missing plaintiffs’ complaint under ORCP 21 A(8) for failure

to allege facts sufficient to state claims for relief. Plaintiffs

Kerry and Scott Tomlinson (the parents) and their son,

T, brought separate negligence claims against defendants

Mary K. Wagner, MD., Metropolitan Pediatrics, LLC, and

Legacy Emanuel Hospital & Health Center. In their respec-

tive claims, the parents and T alleged that defendants pro-

vided medical services to the parents’ older son, M, failed to

timely diagnose M’s genetic disorder, and failed to inform

the parents of that disorder.1 In addition, the parents and

T each alleged that “[the parents] relied on the defendants,

and each of them, to exercise reasonable care, skill and dili-

gence on their behalf” and that “defendants had an ongoing

duty to properly diagnose [M’s] condition from November 16,

2004 until the diagnosis of Duchenne’s muscular dystrophy

[DMD] was finally made in October 2010.” The parents and

T further alleged that, “[h]ad defendants, and each of them,

timely diagnosed [M’s] DMD, [the parents] would not have

produced another child suffering from [DMD].” The parents

and T each alleged that defendants’ negligence caused them

to suffer economic and noneconomic damages.

The trial court entered a judgment dismissing the

complaint on the ground that neither the parents nor T were

patients of defendants and, therefore, the court reasoned,

defendants owed no obligation of professional care toward

them. The Court of Appeals reversed that judgment as to

the parents but affirmed as to T. For the reasons stated

below, we affirm the decision of the Court of Appeals, and we

reverse in part and affirm in part the trial court judgment

dismissing this action.

I. BACKGROUND

In reviewing a judgment dismissing a complaint

under ORCP 21 A(8), we assume the truth of all well-pleaded

factual allegations in the complaint and draw all reason-

able inferences from those allegations in favor of plaintiffs.

Deckard v. Bunch, 358 Or 754, 757, 370 P3d 478 (2016). We

1

The complaint did not assert a negligence claim on behalf of M.

Cite as 362 Or 431 (2018) 435

set out the pertinent allegations in the complaint in accor-

dance with that standard.

The parents’ son, M, was born in 2003. The par-

ents took M to defendants for patient care in November

2004 after he began exhibiting developmental abnormali-

ties. Over the course of many visits, defendants “undertook

to assess the cause of [M]’s developmental abnormalit[ies],”

but failed to do so. While still not knowing the cause of M’s

continuing developmental abnormalities, the parents con-

ceived another child in early 2008. That child, T, a son, was

born in November 2008.

In October 2010, the cause of M’s developmental

abnormalities was diagnosed as Duchenne muscular dystro-

phy (DMD). According to the complaint, DMD is an inher-

itable genetic disorder with severe and progressively debili-

tating symptoms, including muscle weakness and wasting,

loss of the ability to walk (usually by age 12), progressive

paralysis, and premature death. Those symptoms typically

affect only males with the defective gene. Females with the

defective gene are typically only carriers who do not show

symptoms of DMD. If a couple has a child with DMD, then

there is a fifty-percent chance that other male children born

to that couple will also have DMD. After M’s diagnosis, T

also was diagnosed with DMD.

In their respective claims, the parents and T alleged

that defendants negligently failed to perform appropriate

diagnostic testing for the symptoms that M was present-

ing and, therefore, failed to timely diagnose M with DMD.

According to the parents and T, because defendants failed

to timely diagnose M, defendants failed to timely inform the

parents of the reproductive risks resulting from M’s diagno-

sis. As noted, the parents and T alleged that if defendants

had “timely diagnosed [M]’s DMD, [the parents] would not

have produced another child suffering from [DMD].”

The parents and T further alleged that, as a result of

defendants’ negligence, they have suffered significant finan-

cial and emotional burdens. Specifically, the parents sought

economic damages for the cost of T’s medical care, educa-

tion, and other support that they have already incurred and

expect to incur until he reaches adulthood. They also sought

436 Tomlinson v. Metropolitan Pediatrics, LLC

noneconomic damages for emotional distress. T separately

sought economic damages for his medical care and support

in adulthood and for his lost future earning capacity. Like

the parents, T also claimed noneconomic damages for emo-

tional distress.

In the trial court, defendants moved to dismiss both

claims under ORCP 21 A(8). Defendants asserted numerous

reasons for dismissal. As noted, the trial court granted the

motion on the ground that neither the parents nor T alleged

that they had been patients of defendants. In an initial let-

ter opinion, the trial court characterized the complaint as

asserting medical negligence claims and explained that, “to

survive dismissal, a complaint must include an allegation of

a professional relationship between a physician and patient

in a medical negligence case.” Because the parents and T

had conceded that only the parents’ first-born son, M, had

been defendants’ patient, the trial court therefore dismissed

both claims. The court also ruled that T’s claim was not

actionable because “there is no yardstick by which to mea-

sure his damages.”

In a subsequent letter opinion, the trial court clari-

fied that its dismissal of T’s claim was based on the premise

that Oregon law does not recognize a claim by a child assert-

ing that he or she never should have been born. The court

explained that it was dismissing the parents’ claim because,

unlike similar claims recognized in other jurisdictions, the

complaint in this case did not allege that “the parents [were]

treated with, or relied upon, the advice of [defendants] in

deciding whether to conceive a second child.” The trial court

further ruled that, even if the parents had alleged sufficient

facts to state a claim for relief, such a claim could not include

noneconomic damages for emotional distress, because “[n]o

physical impact or duty to plaintiffs to avoid emotional harm

has been alleged.” Based on those rulings, the trial court

entered judgment in favor of defendants.

Plaintiffs appealed that judgment to the Court

of Appeals, which affirmed the dismissal of T’s claim but

reversed the dismissal of the parents’ claim, including

the dismissal of their request for noneconomic damages.

Tomlinson v. Metro. Pediatrics, LLC, 275 Or App 658, 366

Cite as 362 Or 431 (2018) 437

P3d 370 (2015). In its analysis, the Court of Appeals first

addressed whether the trial court properly had dismissed

the parents’ and T’s claims for failing to allege a physician-

patient relationship. The Court of Appeals framed the issue

as being whether “a plaintiff is categorically precluded from

stating a negligence claim against a physician where the

professional standard of care owed to a patient requires the

physician to exercise care on behalf of nonpatients.” Id. at

673. The Court of Appeals disagreed with the trial court’s

ruling on that issue, holding that “the absence of a physician-

patient relationship [does] not preclude nonpatients from

recovering in negligence against the physician.” Id.

The Court of Appeals then addressed issues specific

to the parents’ claim. As relevant to our review, the Court of

Appeals agreed with the trial court’s conclusion that “there

are no allegations of treatment, consultation, or reproduc-

tive or genetic counseling or screening involving the [par-

ents]. Further, there are no allegations of affirmative mis-

diagnoses or representations on which the [parents] relied

in deciding to conceive another child.” Id. at 679 n 10. The

court opined, however, that those omissions were not criti-

cal: “[W]here defendants negligently failed to diagnose [M]

and failed to inform [the parents] of his genetic condition

and [the parents’] reproductive risks, [the parents’] failure

to allege that they inquired as to whether [M] might have a

genetic condition so as to obtain some affirmative represen-

tation from defendants is not dispositive.” Id. The Court of

Appeals held that it was sufficient to allege that defendants

“fail[ed] to diagnose the congenital or hereditary nature of

[an older child’s] ailment before the parents unknowingly

conceived and bore a second child suffering from the same

genetic condition.” Id.

The Court of Appeals next addressed whether the

parents sufficiently had alleged a basis to recover noneco-

nomic damages for emotional distress. The court noted that,

in the absence of a physical impact, “a plaintiff may recover

for purely psychic injury ‘where the defendant’s conduct

infringed on some legally protected interest apart from caus-

ing the claimed distress[.]’ ” Id. at 679 (quoting Hammond v.

Center Lane Communications Center, 312 Or 17, 23, 816 P2d

593 (1991) (emphasis omitted)).

438 Tomlinson v. Metropolitan Pediatrics, LLC

The court rejected the parents’ contention that they

could show a sufficient “physical impact” based on the physi-

cal activity required to care for T or their resulting increased

susceptibility to physical injury. Id. at 680. But the court

accepted the parents’ contention that they had a legally pro-

tected interest in controlling their reproductive choices, the

violation of which is actionable in a negligence claim. Id. at

681. The court held that “a relationship of reliance” could

be established based on “the limited circumstances alleged

here—viz., circumstances in which a medical provider, under

the operative standard of care, is obligated to inform the bio-

logical parents that their child (i.e., the provider’s patient)

suffers from a genetic condition and to advise them as to

the reproductive consequences of such a diagnosis.” Id. at

684. As a result, the Court of Appeals held that the parents’

relationship with defendants “gave rise to a duty to avoid

infringing on the [parents]’ interest in making informed

reproductive choices.” Id.

Further, the Court of Appeals concluded that such

an interest is sufficient to support recovery for emotional

injuries resulting from negligent conduct. According to the

Court of Appeals, “there can be little doubt that inform-

ing parents of their child’s genetic condition so that they

can make informed reproductive decisions is an obligation

imposed to avoid the severe emotional distress that is the

direct consequence of its infringement.” Id. at 686. The Court

of Appeals viewed the parents’ interest in making informed

reproductive choices as implicating fundamental issues of

personal autonomy, the violation of which “may be thought

of as the deprivation of moral initiative and ethical choice.”

Id. at 686-87 (quotation omitted). Thus, the Court of Appeals

held that the parents’ allegations were sufficient to support

the recovery of noneconomic damages for emotional distress.

Additionally, the Court of Appeals noted that one

defendant had “moved to dismiss the [parents]’ negligence

claim on the ground that, because they could not recover

noneconomic damages for emotional distress, their claim

reduced to one of purely economic losses that are generally

not recoverable in a negligence action.” Id. at 687 n 14. The

court rejected that argument “[f]or the same reasons that

the trial court erred in dismissing the [parents]’ negligence

Cite as 362 Or 431 (2018) 439

claim on the ground that their allegations pertaining to

noneconomic damages were legally insufficient.” Id. Accord-

ingly, the Court of Appeals concluded that the trial court had

erred in dismissing the parents’ negligence claim against

defendants.

Turning to T’s claim, the Court of Appeals explained

that “[T] alleges that, but for defendants’ negligence, he

would never have been born. Thus, [T]’s alleged injury is life

itself.” Id. at 688. In adopting that view, the court rejected

T’s argument that his injury was the impairment that

accompanies his life rather than his life itself. The court

further concluded that, even if such impairment could be

an injury, T had failed to state a negligence claim against

defendants because T had not alleged legally cognizable

damages. According to the Court of Appeals, calculating T’s

alleged damages would be an impossibility:

“As applied to [T]’s claim, a trier of fact would be required

to compare the value of nonexistence—the state that [T]

would have been in but for defendants’ alleged negligence—

and the value of his life with DMD. Simply put, as a matter

of law, that comparison is impossible to make.”

Id. at 689. The Court of Appeals therefore affirmed the part

of the judgment dismissing T’s claim.

In sum, the Court of Appeals ruled in favor of the

parents on their claim and in favor of defendants on T’s

claim. Both T and defendants petitioned for review of the

Court of Appeals’ rulings that were adverse to their respec-

tive positions. This court allowed both petitions.

II. ANALYSIS

As discussed, in reviewing the trial court’s ruling

dismissing plaintiffs’ complaint under ORCP 21 A(8), we

“assess[ ] the legal effect” of the factual allegations in the

complaint and all reasonable inferences that may be drawn

from those allegations. Bailey v. Lewis Farm, Inc., 343 Or

276, 281, 171 P3d 336 (2007). Whether the facts alleged are

sufficient to state a claim for relief is a question of law. See

Rowlett v. Fagan, 358 Or 639, 651, 369 P3d 1132 (2016) (“[T]he

legal viability of any particular claim under Oregon law * * *

is strictly a matter of law.”).

440 Tomlinson v. Metropolitan Pediatrics, LLC

To answer that question in this negligence action, our

task “is to ‘determine whether upon the facts alleged * * * no

reasonable factfinder could decide one or more elements of

liability’ ” in favor of plaintiffs. Chapman v. Mayfield, 358 Or

196, 205, 361 P3d 566 (2015) (quoting Fazzolari v. Portland

School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987)).

The primary dispute in this case is narrow. Defendants do

not dispute that the parents and T alleged facts that could

establish that defendants’ conduct was a but-for cause of

the injuries for which they seek redress. Defendants also do

not dispute that the parents and T alleged facts that could

establish that defendants’ conduct was negligent for failing

to diagnose the genetic disorder of their patient, M, in a

timely manner and failing to communicate that diagnosis to

the parents. Instead, the primary dispute on review is about

whether the parents and T had identifiable interests that

defendants were legally obligated to protect under the facts

alleged in their respective claims. See Cain v. Rijken, 300 Or

706, 715, 717 P2d 140 (1986) (“[A] defendant generally will

be liable to plaintiff for negligently caused injuries only if

the plaintiff and the injury are of a kind foreseeably within

the scope of the risk that made the conduct negligent.”); see

also Chapman, 358 Or at 206 (asking “whether plaintiffs’

injuries were within the type of potential harms that made

defendant’s conduct unreasonable”).

Defendants concede that, as defendants’ patient,

M had a legally protected interest in receiving reasonable

medical care from defendants, which, based on the facts

alleged, included timely diagnosing his genetic disorder and

communicating that diagnosis to his parents. So, as alleged,

defendants do not dispute that the complaint alleged suf-

ficient facts to establish that defendants acted negligently

with respect to M’s legally protected interests. The question

is whether the parents and T also alleged sufficient facts to

establish that defendants infringed their own legally pro-

tected interests, despite their lack of a physician-patient

relationship with defendants. In other words, the question

is whether the complaint alleged sufficient facts to establish

that defendants’ conduct was negligent with respect to the

legally protected interests of the parents and T. Again, that

determination is a question of law. See, e.g., Conway v. Pacific

Cite as 362 Or 431 (2018) 441

University, 324 Or 231, 239, 924 P2d 818 (1996) (reviewing

nature of parties’ relationship to determine whether plain-

tiff had stated claim for negligence). We separately consider

that issue with regard to the claims asserted by both the

parents and by T, as well as defendants’ arguments that the

parents cannot recover damages for emotional distress and

that T did not suffer cognizable harm in the first place.

A.  The Parents’ Claim

Stated in core terms, the parents assert that defen-

dants negligently failed to diagnose M’s genetic disorder in

a timely manner and to communicate that diagnosis to the

parents, and that defendants’ negligence caused the par-

ents to conceive and bear T and suffer the economic and

emotional burdens associated with T’s genetic disability.2

Defendants first contend that the parents have not stated

a negligence claim because defendants had no obligation

to protect the parents from the injuries that they suffered.

Defendants further contend that, even if the parents have

stated a negligence claim, the parents cannot recover dam-

ages for emotional distress.

1.  Whether the parents’ allegations adequately state a

negligence claim

Claims such as the parents’ claim sometimes have

been challenged on the ground that the law should not recog-

nize having a child as an injury. This court, however, consid-

ered and rejected that argument in Zehr v. Haugen, 318 Or

647, 871 P2d 1006 (1994). There, parents sued a physician

who was supposed to perform a tubal ligation on the wife

at the time of the Caesarean delivery of the couple’s second

child. Id. at 650. The physician negligently failed to perform

the tubal ligation and, as a result of that negligence, the wife

became pregnant and gave birth to the couple’s third child.

Id. In their negligence claim, the parents sought damages

for the economic losses and emotional distress associated

2

The parents’ claim is a version of what has been described by some courts

and commentators as a “wrongful birth” claim, in which a parent asserts that a

health care professional’s allegedly negligent conduct prevented the parent from

avoiding or terminating a pregnancy that resulted in the birth of a disabled child.

See Willis v. Wu, 362 SC 146, 153, 607 SE2d 63, 66 (2004) (defining “wrongful

birth” and warning that term is not always used consistently).

442 Tomlinson v. Metropolitan Pediatrics, LLC

with raising that child. The defendant argued that “the

birth of a healthy, normal child cannot be ‘harm.’ ” Id. at 657.

This court rejected that argument, holding that, “[w]hen a

plaintiff alleges that a negligently performed medical proce-

dure produced an outcome that was harmful to the plaintiff,

the plaintiff is entitled to present evidence concerning that

alleged harm.” Id.

Zehr established the viability—at least in theory—

of a parental claim asserting that a health care provider’s

conduct prevented the avoidance or termination of a preg-

nancy. Defendants, however, argue that the parents’ claim

cannot be based on the foreseeability of the injuries alone

and that the parents’ claim is a type of medical malpractice

claim that requires a direct physician-patient relationship

between the parties. Defendants point out, and the parents

concede, that only M had a physician-patient relationship

with defendants.3

We begin with defendants’ contention that the fore-

seeability of the parents’ injury cannot, by itself, establish

defendants’ liability for the parents’ injuries. We agree with

defendants for two reasons. First, the parents allege only

economic and emotional injuries. See Philibert v. Kluser, 360

Or 698, 703, 385 P3d 1038 (2016) (“[T]he [emotional] inju-

ry’s foreseeability, standing alone, is insufficient to estab-

lish the defendant’s liability: there must also be another

‘legal source’ of liability for the plaintiff to recover emotional

distress damages.”); Oregon Steel Mills, Inc. v. Coopers &

Lybrand, LLP, 336 Or 329, 341, 83 P3d 322 (2004) (“[L]iabil-

ity for purely economic harm must be predicated on some

duty of the negligent actor to the injured party beyond the

common law duty to exercise reasonable care to prevent

foreseeable harm.” (Internal quotation marks omitted.)).

Second, the parents allege that their injuries resulted from

defendants’ failure to take affirmative steps to protect them

3

In Zehr, this court allowed both the husband and wife to proceed on negli-

gence claims against the wife’s physician. 318 Or at 657. But the court was not

asked to consider, and did not consider, the issue of whether the husband’s status

as a nonpatient precluded his claim. See Tomlinson, 275 Or App at 673 n 7 (“[B]

ased on our review of the appellate briefs in Zehr, the issue of whether husband

was required to allege a physician-patient relationship between defendants and

himself was not before the courts.”).

Cite as 362 Or 431 (2018) 443

from a risk of harm that defendants did not create—namely,

the reproductive risks associated with the parents’ preexist-

ing genetic composition. See Restatement (Third) of Torts:

Phys. & Emot. Harm § 37 (2012) (“An actor whose con-

duct has not created a risk of physical or emotional harm

to another has no duty of care to the other unless a court

determines that one of the affirmative duties provided in

§§ 38-44 is applicable.”); see, e.g., Cramer v. Mengerhausen,

275 Or 223, 227, 550 P2d 740 (1976) (“There is no duty to aid

one in peril in the absence of some special relation between

the parties which affords a justification for the creation of a

duty.”). Defendants correctly note that, without some justi-

fication for providing legal protection, a person is not gener-

ally required to affirmatively protect the economic and emo-

tional interests of others.

Contrary to defendants’ argument, however, the lack

of a direct physician-patient relationship does not defeat the

parents’ claim. A direct physician-patient relationship can

be one ground for creating affirmative protections of a plain-

tiff’s economic and emotional interests under negligence law.

See, e.g., Curtis v. MRI Imaging Services. II, 327 Or 9, 15,

956 P2d 960 (1998) (allowing claim for emotional distress);

Zehr, 318 Or at 658 (allowing claim for economic losses);

Restatement (Third) § 41 comment h (“[A physician’s duty to

a patient] encompasses both the ordinary duty not to harm

the patient through negligent conduct and an affirmative

duty to use appropriate care to help the patient.”). It does

not necessarily follow that a direct physician-patient rela-

tionship is the only such ground available to the parents.

To determine whether the parents have asserted a

cognizable ground for protection of their interests, it is help-

ful to identify the foundational principles that this court has

used to describe professional undertakings that can give

rise to negligence liability. In Conway, this court explained:

“Another way to characterize the types of relationships in

which a heightened duty of care exists is that the party who

owes the duty has a special responsibility toward the other

party. This is so because the party who is owed the duty

effectively has authorized the party who owes the duty to

exercise independent judgment in the former party’s behalf

and in the former party’s interests. In doing so, the party

444 Tomlinson v. Metropolitan Pediatrics, LLC

who is owed the duty is placed in a position of reliance upon

the party who owes the duty; that is, because the former

has given responsibility and control over the situation at

issue to the latter, the former has a right to rely upon the

latter to achieve a desired outcome or resolution.”

Conway, 324 Or at 240 (emphasis in original); see also Dan

B. Dobbs et al, 2 The Law of Torts § 410, 670 (2d ed 2011)

(“Special relationships may also arise from voluntary con-

tracts or undertakings.”).

Of course, those broad principles support the obliga-

tion of professional care that a physician owes to a patient.

When a physician holds herself out as such and undertakes

to provide medical services, the physician represents hav-

ing a certain level of medical skill and competence, often in

a particular medical discipline. In doing so, the physician

invites a patient (or others acting to advance the patient’s

interests) to rely on the physician to provide the patient

with the level of care that a reasonably prudent, careful,

and skillful practitioner of the physician’s discipline would

have provided to the patient under the same or similar cir-

cumstances and within the same community. See Creasey

v. Hogan, 292 Or 154, 163, 637 P2d 114 (1981) (stating a

physician’s standard of care); Dowell v. Mossberg, 226 Or

173, 190, 359 P2d 541 (1961) (explaining that an “unspoken

contractual relationship between a physician and patient is

a matter of inducement in a malpractice action”). The law

therefore imposes on a physician an obligation to meet that

standard of care, which is defined by the scope of the physi-

cian’s undertaking. See Dobbs et al, 2 The Law of Torts § 285

at 137-38 (“In the usual case, the doctor-patient relationship

is formed by the doctor’s undertaking to act for the benefit of

the patient or with her express or implied consent or that of

her representative. The duty is of course limited by the scope

of the undertaking.”).

As noted, though, the parents were not defendants’

patients. Defendants argue that a physician can never be

subject to a professional obligation to a nonpatient because,

according to defendants, the very essence of medical services

is to diagnose and treat patients and not to benefit nonpa-

tients. Although this court has not had occasion to consider

that categorical argument in the context of a physician’s

Cite as 362 Or 431 (2018) 445

services, it has rejected similar arguments in the context of

other professional relationships and has, in appropriate cir-

cumstances, recognized third-party professional negligence

claims.4

For example, in the context of legal malpractice

claims, strict adherence to the privity rule has been aban-

doned, and courts have “extended the attorney’s duty to

third parties on a case-by-case basis[.]” Roberts v. Fearey,

162 Or App 546, 551, 986 P2d 690 (1999). Like in other

professional settings, the recognition of nonclient legal mal-

practice claims has turned on the existence of an undertak-

ing, express or implied, between the attorney and the third

party:

“Although Oregon has not formally adopted a discrete test,

the cases in this area focus on whether there is a de facto

relationship between the defendant and the injured noncli-

ent of a nature that justifies imposing a special duty on the

defendant to protect the nonclient against economic losses.”

Id. at 552; see, e.g., Hale v. Groce, 304 Or 281, 744 P2d

1289 (1987) (allowing plaintiff-nonclient to bring malprac-

tice claim as intended third-party beneficiary of attorney’s

relationship with client); McEvoy v. Helikson, 277 Or 781,

562 P2d 540 (1977) (allowing plaintiff-nonclient to sue his

former wife’s attorney for violating stipulated agreement

because fact finder could conclude “the primary purpose” of

agreement was to benefit plaintiff).

In short, in appropriate circumstances, this court

has been willing to recognize that, in carrying out a profes-

sional obligation to a client, the professional may be required

to protect the interests of a third party as well. In such cir-

cumstances, the professional’s relationship with a client not

only gives rise to an obligation to protect the interests of the

client, but it also can give rise to an obligation to protect the

interests of a third party. The facts of particular cases will

determine what interests and what third parties receive

such protection. But we can discern no reason to categori-

cally exclude physicians from potential claims of third-party

4

See Jay M. Feinman, Professional Liability to Third Parties 8-19 (2000)

(describing historical development of third-party professional negligence claims).

446 Tomlinson v. Metropolitan Pediatrics, LLC

professional negligence that are available against other

professionals.

As noted, we decide on a case-by-case basis whether

a professional’s relationship with a third party is capable of

supporting a negligence claim. We do not attempt to iden-

tify all possible factors that could be relevant in consider-

ing whether to recognize such a claim. But, as explained in

Conway, an important consideration is whether the relation-

ship between the parties is a type of relationship that gen-

erally entails a mutual expectation of service and reliance.

We also have considered whether recognizing such a claim

would interfere with or impair the loyalties that the profes-

sional owes to the client. See Hale, 304 Or at 287 (recogniz-

ing a duty to a third party because, among other reasons,

“it does not threaten to divide a lawyer’s loyalty between

the client and a potentially injured third party”). And, as

in other circumstances involving liability for economic and

emotional injuries, we have considered whether the poten-

tial plaintiffs were identifiable to the defendant or otherwise

could be defined as a class that avoids indeterminate liabil-

ity. See Philibert, 360 Or at 704 (“Emotional distress, like

economic loss, ripples throughout society as a foreseeable

result of negligent conduct. Without some limiting principle

in addition to foreseeability, permitting recovery for emo-

tional injuries would create indeterminate and potentially

unlimited liability.”).

With those considerations in mind, we examine the

parents’ factual allegations. The parents alleged that defen-

dants undertook to diagnose M’s symptoms that, according

to the parents, presented the potential of a genetic disor-

der. As M’s legal guardians, the parents alleged that they

expected to receive information from defendants about M’s

diagnosis. And as M’s biological parents, the parents alleged

that M’s diagnosis potentially implicated their own genetic

risks. Further, the parents alleged that they relied on defen-

dants to exercise their professional skill and ability to diag-

nose M’s symptoms and would not have conceived and born

T if they had known of M’s genetic disorder, a condition that

they allege a physician of reasonable skill and ability would

have diagnosed soon enough to avoid T’s conception and

birth.

Cite as 362 Or 431 (2018) 447

We conclude that those factual allegations are suffi-

cient, if proved, to establish that, in addition to their obliga-

tion to protect M’s interests, defendants had a limited obli-

gation to protect the parents’ interests as well. Defendants’

undertaking to provide medical care to M subjected them

to a standard of care requiring the exercise of reasonable

professional skill and care. Under the facts alleged, that

standard required defendants to reasonably perform spe-

cific tasks: diagnose M’s genetic disorder and communicate

that diagnosis to the parents. The parents’ relationship with

defendants arose within the context of defendants’ under-

taking and the parents’ status as M’s biological parents and

primary caregivers. We hold that, under the facts alleged

in this case, such a relationship gives rise to legal protec-

tion. By failing to reasonably diagnose M’s genetic disorder

and communicate that diagnosis to the parents, defendants

failed to reasonably protect M’s interests in receiving med-

ical care and failed to reasonably protect the parents’ sepa-

rate interests in avoiding the reproductive risks associated

with their own genetic composition.

Nonpatients, including biological parents who are

legal guardians and who are already in communication with

a physician about their child’s medical condition, reasonably

may expect to receive warnings about potential risks to

them that are germane to the physician’s medical diagnosis

of the child. Such expectations are especially reasonable for

a potential biological parent in light of the important role

that genetic information must play in reproductive decisions:

“[A]dvancements in prenatal care have resulted in an

increased ability of health care professionals to predict and

detect the presence of fetal defects. This raises the impor-

tance of genetic counseling for expecting parents. Indeed,

prenatal testing is extremely prevalent and is widely

accepted, and will likely become more common in the future.

Cailin Harris, Statutory Prohibitions on Wrongful Birth

Claims & Their Dangerous Effects on Parents, 34 B.C. J.L.

& Soc. Just. 365, 370 (2014) (recognizing that the American

Congress of Obstetricians and Gynecologists recommends

doctors test all pregnant women for genetic abnormalities).”

Plowman v. Fort Madison Cmty. Hosp., 896 NW2d 393, 399

(Iowa 2017).

448 Tomlinson v. Metropolitan Pediatrics, LLC

Further, under the facts alleged in the parents’

claim, there was no possibility that defendants would be

required to divide their loyalties between M and the par-

ents. As alleged, the parents reasonably expected defen-

dants to provide M with the level of care that a reasonably

prudent, careful, and skillful physician otherwise would

have provided to M. And, as further alleged, that level of

care required performing (or referring M to others to per-

form) certain tests and sharing the results of those tests

with the parents, as M’s biological parents and legal guard-

ians. Thus, satisfying the parents’ reasonable expectations

merely required defendants to provide M with the level of

care that a reasonably prudent, careful, and skillful phy-

sician would have otherwise provided to M. And, because

the parents were M’s legal guardians, there was no concern

about breaching M’s privacy interests under the facts of this

case.

The parents’ claim to being entitled to receive warn-

ings about their genetic reproductive risks may be analo-

gized to cases in which negligence liability has been imposed

on a physician for failing to warn nonpatient family mem-

bers about the risks posed by a patient’s contagious disease.

See Dobbs et al, 2 The Law of Torts § 289 at 151 (“Liability

to nonpatients has also been imposed when the physician

fails to use reasonable care to discover and reveal that his

patient has a contagious disease or a genetic condition that

may represent harm to others.”); Restatement (Third) § 41

comment h (“Courts generally have held physicians liable to

nonpatient family members for failing to provide the patient

with information about a communicable disease.”); see also

Bradshaw v. Daniel, 854 SW2d 865, 871 (Tenn 1993) (col-

lecting cases that “have recognized that physicians may be

liable to persons infected by a patient, if the physician negli-

gently fails to diagnose a contagious disease, or having diag-

nosed the illness, fails to warn family members or others

who are foreseeably at risk of exposure to the disease”).

A physician may be required to warn a patient’s

family members about the risks of a contagious disease

because doing so protects the interests of the family mem-

bers, not because doing so protects the interests of the

patient. See Hofmann v. Blackmon, 241 So 2d 752, 753 (Fla

Cite as 362 Or 431 (2018) 449

Dist Ct App 1970) (“We hold that a physician owes a duty

to a minor child who is a member of the immediate family

and living with a patient suffering from a contagious dis-

ease to inform those charged with the minor’s well-being of

the nature of the contagious disease and the precautionary

steps to be taken to prevent the child from contracting such

disease and that the duty is not negated by the physician

negligently failing to become aware of the presence of such

a contagious disease.”); see also Dobbs et al, 2 The Law of

Torts § 289 at 151-52 (“The patient herself is entitled to have

a proper diagnosis and to know of it so she can minimize

risks to herself and others.” (Emphasis added.)).5

The parents cite four decisions by other courts

involving claims brought under facts similar to this case—

namely, claims against a physician for the burdens of rais-

ing a subsequent child with a genetic disorder after the

physician negligently failed to diagnose one of the parents’

older children with the same genetic disorder. See Clark v.

Children’s Memorial Hosp., 353 Ill Dec 254, 955 NE2d 1065

(2011); Molloy v. Meier, 679 NW2d 711 (Minn 2004); Lininger

v. Eisenbaum, 764 P2d 1202 (Colo 1988); Schroeder v. Perkel,

87 NJ 53, 432 A2d 834 (1981).

The analysis in Molloy is particularly instructive.

The court in that case emphasized that “genetic testing and

diagnosis does not affect only the patient. Both the patient

and her family can benefit from accurate testing and diag-

nosis. And conversely, both the patient and her family can

be harmed by negligent testing and diagnosis.” Molloy, 679

NW2d at 719. Further, the court explained that, because it is

a common practice for physicians to warn the parents of any

genetic diagnosis, “[t]he standard of care thus acknowledges

that families rely on physicians to communicate a diagnosis

of the genetic disorder to the patient’s family.” Id. The court

also noted that recognizing the parents’ protected inter-

est was appropriate because “it is unlikely that the medi-

cal community will adopt a standard of care that is either

unduly burdensome or unbeneficial to patients.” Id.; see also

5

Although there may be circumstances in which a physician could satisfy his

or her professional obligation by advising the patient that family members should

be informed of risks, there was no such possibility under the facts alleged here.

450 Tomlinson v. Metropolitan Pediatrics, LLC

Dobbs et al, 2 The Law of Torts § 289 at 152 (noting that, in

circumstances where nonpatient family members face a risk

of a contagious disease or a genetic condition, “the duty of

reasonable care is especially justified because it imposes no

additional obligation of care beyond the duty the physician

already owes to his patient”). As a result, the court in Molloy

recognized that the parents there had a legally protected

interest in being warned of any genetic diagnosis after con-

sidering the parties’ mutual expectations of service and reli-

ance, the extent of any additional burden that protecting the

parents’ interest would impose on the physician beyond the

obligation already owed to the patient, and the likelihood

that protecting the parents’ interest would be detrimental

the interests of the patient.

We reach the same conclusion here. The parents

have alleged facts that, if proved, would be sufficient to

establish that defendants and the parents had a mutual

expectation that defendants would provide the parents with

information that implicated the parents’ right and ability

to make informed reproductive choices, that meeting that

expectation would not impose an undue burden on defen-

dants beyond the obligation that they already owed to their

patient, M, and that protecting the parents’ interest would

not be detrimental to the interests of M.6 In addition, we

6

Defendants argue that the decisions on which the parents rely are distin-

guishable because the physicians in each case made affirmative representations

to the parents that the child whom the physicians treated did not have a genetic

disorder, whereas there is no allegation of an affirmative representation in this

case. As an initial matter, it is not correct that all the physicians in those cases

made affirmative misdiagnoses. One of the physicians in Molloy made no such

representations. 679 NW2d at 715. Instead, she was liable to the parents for fail-

ing to order or recommend genetic testing that the physician assumed incorrectly

had been performed by previous physicians. Id. None of the courts concluded that

the distinction between a misdiagnosis and a nondiagnosis was decisive, nor do

we.

We further note that our decision is consistent with the Iowa Supreme Court’s

recent decision in Plowman, where the court ultimately concluded:

“The right to sue for wrongful birth belongs to parents who were denied the

opportunity to make an informed choice whether to lawfully terminate a

pregnancy in Iowa. It is not this court’s role to second-guess that intensely

personal and difficult decision. Parents of children with disabilities may find

their lives enriched by the challenges and joys they confront daily. But under

our tort law, financial compensation should be paid by the negligent physi-

cian if liability is proven.”

896 NW2d at 410 (emphasis in original).

Cite as 362 Or 431 (2018) 451

conclude that the facts that the parents have alleged ade-

quately describe conduct by defendants that fell below the

standard of care required to protect the parents’ interest.

See Smith v. Providence Health & Services, 361 Or 456, 480,

393 P3d 1106 (2017) (describing professional negligence as

“conduct below the standard of care” necessary to satisfy

the professional’s obligation to the plaintiff).7 Accordingly,

we conclude that the parents have satisfied their pleading

obligation to state a claim for negligence against defendants

for purposes of ORCP 21 A(8).

2.  Whether the parents can recover damages for emo-

tional distress

Although we have concluded that, as pleaded, the

parents adequately stated a negligence claim against defen-

dants, the question remains whether the damages that the

parents seek are recoverable in such a claim. As pleaded,

the parents seek both noneconomic damages for their emo-

tional distress and economic damages for the expenses that

the parents have and will incur as a result of T’s genetic

condition “through the remainder of his minority.”

On review, defendants do not challenge the avail-

ability of economic damages in general, which the parents in

Zehr were also allowed to seek. 318 Or 656-58. Because the

issue has not been briefed and is not before us, we therefore

have no opportunity to consider and determine the specifics

types of economic damages that may or may not be recover-

able on the parents’ claim. See, e.g., Daniel W. Whitney &

Kenneth N. Rosenbaum, Recovery of Damages for Wrongful

Birth, 32 J Legal Med 167, 173-88 (2011) (surveying scope

of recoverable economic damages); Dobbs et al, 2 The Law

7

In Curtis, this court held that the recoverability of emotional distress dam-

ages in a professional negligence claim not involving physical harm depends on

the existence of a standard of care that includes the duty to protect a client from

emotional harm. Curtis, 327 Or at 14; see also Rathgeber v. James Hemenway,

Inc., 335 Or 404, 415, 69 P3d 710 (2003) (describing Curtis as holding that, “to

state a claim for emotional distress damages in a medical malpractice setting not

involving physical harm, a plaintiff must plead and prove a standard of care that

includes a duty to protect against psychic harm”). In this case, the primary issue

is whether the parents, in addition to M., had their own legal interest in receiving

genetic information that defendants were required to protect. If so, the standard

of care needed to meet defendants’ obligation to M. also would inform the stan-

dard of care needed to satisfy defendants’ obligation to the parents.

452 Tomlinson v. Metropolitan Pediatrics, LLC

of Torts § 370 at 491 (“The cases usually permit recovery

of less than all of the costs inflicted by the tort by limiting

the recovery to the ‘extraordinary’ expenses, those over and

above the ordinary expenses of child rearing.”).8

Defendants have, however, raised the issue of

whether the parents may seek noneconomic damages for

emotional distress. Most of defendants’ pertinent discus-

sion, though, actually addresses the preceding question of

whether the parents’ claim is cognizable in the first place.

See, e.g., Curtis, 327 Or at 15 (considering whether to rec-

ognize patient’s negligence claim premised on emotional

injury). Generally, when a plaintiff establishes a cogniza-

ble negligence claim, damages are recoverable to the extent

necessary to make the plaintiff whole. See United Engine

Parts v. Ried, 283 Or 421, 432, 584 P2d 275 (1978) (“The

purpose of awarding compensatory damages is to make the

party entitled thereto whole.” (Quotation omitted.)). Thus,

although emotional distress is not always a sufficient injury

to establish a negligence claim, if the plaintiff establishes a

negligence claim based on physical injury or the invasion of

some other legally protected interest, then, generally speak-

ing, “the pain for which recovery is allowed includes vir-

tually any form of conscious suffering, both emotional and

physical.” Dan B. Dobbs, 2 Law of Remedies § 8.1(4), 381

(2d ed 1993) (footnotes omitted); see Philibert, 360 Or at 702

(noting that damages for emotional distress are recoverable

when plaintiff establishes a negligence claim based on phys-

ical injury or invasion of “some other legally protected inter-

est”). In this case, the parents have alleged facts that, if

proved, could establish a legally protected interest in receiv-

ing information from defendants that, based on M’s genetic

condition, implicated the parents’ reproductive choices.9

8

Moreover, because the parents have sought economic damages only for the

period of T’s minority, we are not required to consider whether the parents could

recover economic damages for expenses that they may incur for T’s care and

maintenance after the age of majority.

9

Those allegations distinguish this case from others in which the plaintiff

alleges a professional standard of care that does not include an obligation to pro-

tect from emotional harm. See, e.g., Rathgeber, 335 Or at 418 (holding that negli-

gent performance of real estate or similar professional service “cannot give rise

to emotional distress damages unless a standard of care that includes the duty to

protect a client from emotional harm governs the professional’s conduct.”).

Cite as 362 Or 431 (2018) 453

Despite that broad rule, some courts have prohibited

the recovery of emotional distress damages even while rec-

ognizing a parent’s claim against a health care professional

for allegedly negligent conduct that prevented the parent

from avoiding or terminating a pregnancy that resulted in

the birth of a disabled child. See Whitney & Rosenbaum,

Recovery of Damages for Wrongful Birth, 32 J Legal Med at

189-93 (recognizing split). The reasoning of those decisions

does not persuade us.

Some courts have disallowed damages for emotional

distress on the ground that parenthood should not be viewed

as emotional harm. See, e.g., Becker v. Schwartz, 46 NY2d

401, 413-14, 386 NE2d 807, 813 (1978) (“While sympathetic

to the plight of these parents, this court declined for policy

reasons to sanction the recovery of damages for their psychic

or emotional harm occasioned by the birth and gradual death

of their child.”). But allowing a parent to seek emotional dis-

tress damages does not require ignoring the emotional ben-

efits that a parent may obtain from having a child. Instead,

the jury may offset an award for emotional distress damages

by the extent to which a parent receives emotional benefit

from a child who resulted from a pregnancy that, but for the

defendant’s negligence, would have otherwise been avoided

or terminated. See Restatement (Second) of Torts § 920 (1979)

(“When the defendant’s tortious conduct has caused harm

to the plaintiff or to his property and in so doing has con-

ferred a special benefit to the interest of the plaintiff that

was harmed, the value of the benefit conferred is considered

in mitigation of damages, to the extent that this is equita-

ble.”).10 Thus, “[m]ost courts appear to be more than will-

ing to award damages for the parents’ emotional distress,

subject to offsets for emotional benefits the parents may

gain in having the child.” Dobbs, 2 Law of Remedies § 8.2

at 414. In considering the emotional benefits of parenthood,

a jury might determine that the benefits more than offset

10

Because the offset is limited to “the interest of the plaintiff that was

harmed,” Restatement (Second) § 920, consideration of emotional benefits can-

not be used to offset economic injuries, see Whitney & Rosenbaum, Recovery

of Damages for Wrongful Birth, 32 J Legal Med at 178 (“To be sure, wrongful

birth cases may be found which permit juries to offset the benefits of parenthood

against the extraordinary expenses attributable to caring for a severely impaired

child. Yet these cases are in the distinct minority.”).

454 Tomlinson v. Metropolitan Pediatrics, LLC

the emotional distress, and award no emotional distress

damages at all. But that is a fact issue for the jury and not a

reason to prevent the parents from seeking such damages.

Other courts that have disallowed damages for

emotional distress have relied on principles created to limit

recovery for emotional distress, such as the physical-impact

rule or the zone-of-danger rule. See Dobbs, 2 Law of Remedies

§ 8.2 at 414 (discussing limits and collecting cases); see, e.g.,

Bader v. Johnson, 732 NE2d 1212, 1222 (Ind 2000) (allow-

ing mother to recover emotional distress damages, but not

father, because mother satisfied the physical-impact rule);

cf. Philibert, 360 Or at 708-11 (discussing limits). Those

rules, however, “have no logical bearing on the parents’

wrongful birth claim.” Dobbs, 2 Law of Remedies § 8.2 at

414. In such a claim, the parents

“do not assert a freestanding emotional distress claim, but

merely assert emotional distress as an item of damages for a

personal tort. For these reasons, the physical manifestation

and zone-of-danger rules offer no occasion to reject mental

distress damages in wrongful birth cases any more than

they would do so in the case of libel or invasion of privacy.”

Id.; see Clark, 353 Ill Dec at 274-77, 955 NE2d at 1085-88

(reversing previous decision disallowing damages for emo-

tional distress in wrongful birth cases); Kush v. Lloyd, 616

So 2d 415, 422-23 (Fla 1992) (“There can be little doubt that

emotional injury is more likely to occur when negligent med-

ical advice leads parents to give birth to a severely impaired

child than if someone wrongfully calls them liars, accuses

them of unchastity, or subjects them to any other similar

defamation.”); Naccash v. Burger, 223 Va 406, 416, 290 SE2d

825, 831 (1982) (“Furthermore, we believe it would be wholly

unrealistic to say that the [parents] were mere witnesses

to the consequences of the tortious conduct involved in this

case.”); see also Dobbs et al, 2 The Law of Torts § 370 at

492 (“The tort to the mother in the wrongful birth claim

inescapably involves the mother’s body and intimate rights

of autonomy.”).

In short, we agree with the majority of courts that

have addressed the issue and conclude that the parents

should be allowed to seek such damages in this case.

Cite as 362 Or 431 (2018) 455

B.  T’s Claim

T’s claim is based on the factual premise that, if

defendants had not acted negligently, then T would not have

been born.11 The vast majority of courts that have consid-

ered the question have refused to recognize such claims.

See Willis v. Wu, 362 SC 146, 156-57, 607 SE2d 63, 68-69

(2004) (“Twenty-seven states, by judicial opinion, statute, or

both, have either refused to recognize or limited a wrongful

life action. Three states * * * have allowed such a cause of

action.”). And most courts that have refused to recognize

such claims have done so after confronting the impondera-

bility of comparing life to nonexistence. Id. at 157, 607 SE2d

at 69 (collecting cases). That position, succinctly stated, is:

“Our finding of such [a wrongful life] injury would require

first, that we value [the child’s] present station in life; sec-

ond, that we ascertain the value to [the child] of his not

having been born; and finally, that we determine that the

latter value is greater than the former. Because we find it

impossible to complete those steps in any rational, princi-

pled manner, we cannot find that [the child] has suffered

an injury sufficient to support a claim for relief.”

Lininger, 764 P2d at 1210.

Courts rejecting such claims have emphasized

the difficulty in determining whether a plaintiff has been

harmed at all by a defendant’s negligence when, but for that

negligence, the plaintiff would not have been born in the

first place. See id. (“The difficulty that besets [the child’s]

complaint is not merely that damages are inherently too

speculative to assess. While the discussion above compels

that conclusion, the more fundamental problem is that we

cannot determine in the first instance that [the child] has

been injured.”). In this case, the Court of Appeals rejected

T’s claim on similar grounds after concluding that T had

alleged that his existence itself is an injury and that it is

impossible to calculate damages based on a comparison

between life and nonexistence. Tomlinson, 275 Or App at

689.

11

T’s claim therefore is a version of what some courts and commentators

have termed a “wrongful life” claim. See Willis, 362 SC at 153, 607 SE2d at 66

(defining “wrongful life” and warning that term is not always used consistently).

456 Tomlinson v. Metropolitan Pediatrics, LLC

On review, T primarily argues that the Court of

Appeals erred by defining his injury as life itself rather

than as the impairment that accompanies his life. T remon-

strates that he has not sought damages whose calculation

would require a comparison between life and nonexistence.

Instead, he argues, he seeks damages based on a com-

parison between his impaired life and a nonimpaired life.

T notes that, although such damages may be difficult to

measure, juries are routinely asked to make similar calcu-

lations in cases involving prenatal injuries to a child that

resulted in permanent disabilities. See, e.g., Klutschkowski

v. PeaceHealth, 354 Or 150, 156, 311 P3d 461 (2013) (perma-

nent injury to child during delivery).

A threshold difficulty with T’s argument is that it

puts the damages cart before the liability horse; that is, T’s

argument blurs the line between the identification of a cog-

nizable injury and the determination of damages resulting

from the injury. “[T]he general rule in Oregon in assessing

damages has been that a plaintiff should recover only such

sums as will compensate a plaintiff for the injury suffered

as a result of a defendant’s wrong.” Yamaha Store of Bend,

Inc. v. Yamaha Motor Corp., 310 Or 333, 344, 798 P2d 656

(1990), modified on recons, 311 Or 88, 806 P2d 123 (1991).

We must therefore first determine whether T has suffered

a cognizable injury caused by defendants’ negligence. Only

then would T be entitled to have a finder of fact determine

the damages needed to compensate that injury.

Contrary to T’s argument, the comparison between

life and nonexistence is inherent in determining both

whether T suffered any harm as a result of defendants’ con-

duct and whether any such harm constitutes a cognizable

legal injury—that is, whether T’s claimed injury is subject

to legal protection against defendants’ negligent conduct. As

we now explain, those problems persist regardless how T

frames the damages that he seeks.

To adequately state a negligence claim, a plaintiff

must allege facts that would allow a reasonable factfinder to

determine that the defendant’s negligence caused the plain-

tiff harm. See Solberg v. Johnson, 306 Or 484, 490, 760 P2d

867 (1988) (stating that a negligence complaint “must allege

Cite as 362 Or 431 (2018) 457

facts from which a factfinder could determine * * * that

the [defendant’s] conduct was a cause of plaintiff’s harm”);

Dobbs et al, 1 Law of Torts § 125 at 391 (“[T]he plaintiff

cannot recover without showing actual harm resulting from

the defendant’s conduct. Sometimes this is referred to as a

requirement that the plaintiff must prove actual damages

and sometimes as a requirement that the plaintiff must

prove causation in fact.” (Footnote omitted.)). As alleged in

the complaint, T was born and was born with DMD as a

result of defendants’ conduct. The question remains, how-

ever, whether being born and being born with DMD consti-

tutes harm that defendants caused.

Central to determining causation of harm is a com-

parison between what actually happened and what would

have happened if the defendant had not engaged in the

allegedly negligent conduct. See Dobbs et al, 1 Law of Torts

§ 187 at 626 (“The but-for test of causation can be applied

only by comparing what happened with a hypothetical

alternative.”); Restatement (Third) § 26 (explaining that

“[c]onduct is a factual cause of harm when the harm would

not have occurred absent the conduct”).12 T contends that

he can establish that defendants’ conduct caused him harm

without comparing the value of life to the value of nonexis-

tence. According to T, the harm that defendants caused him

is analogous to a prenatal injury to a fetus, which requires

no comparison to nonexistence.

In the case of a prenatal injury resulting in disabil-

ity, the plaintiff can establish harm based on a comparison

between his or her life with the disability and his or her

life without the disability, because the defendant actually

caused the alleged disability. As a result, establishing harm

from a prenatal injury does not require comparing life to

nonexistence. For example, in Mallison v. Pomeroy, 205 Or

690, 291 P2d 225 (1955), a defendant negligently caused a

traffic accident that resulted in the plaintiff being born with

a disability. In that case, but for the defendant’s negligence,

12

An exception is recognized when there are multiple sufficient causes of an

injury, which is not alleged in this case. See Restatement (Third) § 27 (“If multiple

acts occur, each of which under § 26 [but-for causation] alone would have been a

factual cause of the physical harm at the same time in the absence of the other

act(s), each act is regarded as a factual cause of the harm.”).

458 Tomlinson v. Metropolitan Pediatrics, LLC

the plaintiff would have born without the disability. The

defendant, therefore, caused the plaintiff harm.

T’s claim, however, is not analogous to a prenatal

injury. It is true that, like the plaintiff in Mallison, T has

alleged that defendants’ negligence caused him to be born

with a disability. But unlike the plaintiff in Mallison, T has

not alleged that, but for defendants’ negligence, T would have

been born without the disability. Instead, as noted above,

T has alleged that, “[h]ad defendants, and each of them,

timely diagnosed [M’s] DMD, [the parents] would not have

produced another child suffering from Duchenne’s muscular

dystrophy.” In short, as alleged, the alternatives for T were

that he would be conceived and born with DMD or that he

would not be conceived and born at all.

The comparison is not avoided merely because T

has alleged that defendants caused him economic and emo-

tional burdens. The role of nonexistence in that analysis is

different depending on whether the damages that T seeks

are deemed to be components of damages resulting from a

physical injury or whether those burdens themselves con-

stitute economic and emotional injuries. That distinction is

highlighted by T’s analogy to prenatal injuries. For a plain-

tiff who suffers a permanent impairment resulting from a

prenatal injury, the impairment is a physical injury, and the

financial and emotional burdens resulting from living with

that impairment are components of damages needed to com-

pensate for the physical injury.

T alleges that, as a result of defendants’ negli-

gence, his parents “unknowingly conceived and bore a child

with a severe genetic defect,” and that “[T] was born with

“Duchenne’s muscular dystrophy[.]” It would be incorrect

to describe such a harm as a “physical” injury. A physical

injury makes a person physically worse off than he or she

would have been otherwise. See Restatement (Third) § 4

comment c (“[A]ny detrimental change in the physical con-

dition of a person’s body or property counts as a harmful

impairment[.]”). A defendant therefore causes a plaintiff

to suffer a physical injury when the defendant causes the

plaintiff to be physically worse off than he or she other-

wise would have been. But, as alleged here, T would have

Cite as 362 Or 431 (2018) 459

had no physical state of being but for defendants’ conduct,

because the parents would have either not conceived T or

would have terminated the pregnancy. Absent the possibil-

ity of some kind of in utero genetic therapy, which is not

alleged, the only way that the parents could have conceived

and born a child without DMD was if the parents had con-

ceived and born a child who was not T. As a result, based on

the facts that T alleges, defendants could not have caused T

a physical harm.

Describing T’s argument as asserting economic and

emotional injuries presents a different dilemma. On the one

hand, we could analyze those alleged harms the same way

that we analyzed the contention that T suffered a physi-

cal injury. Under that analysis, it would be incorrect to say

that defendants’ conduct made T’s economic and emotional

well-being worse off because, but for defendants’ negligence,

T would have had no economic or emotional well-being to

begin with. In that sense, T’s claim would fail because he

could not allege and prove that he suffered any economic or

emotional harm as a result of defendants’ conduct.

On the other hand, we could analyze T’s economic

and emotional burdens as injuries that, but for defendants’

alleged negligence, T would not have suffered.13 Under that

analysis, the comparison needed to establish that defen-

dants caused T harm would not depend on a comparison

between T’s life with a disability and T’s life without a dis-

ability, as in the example of the prenatal injury. Instead, the

harm would be established by comparing the economic and

emotional burdens that T will experience in his life with

DMD to the complete lack of economic and emotional bur-

dens experienced by a person who is never born in the first

place.14

13

In every other circumstance, there is no distinction between a standard for

determining the existence of harm based on whether the plaintiff is economically

or emotionally worse off and a standard based on whether the plaintiff incurs

economic costs and emotional distresses that he or she would have otherwise

avoided. Generally, if a defendant negligently causes a plaintiff to incur economic

costs and emotional distresses that otherwise would have been avoided, then the

defendant has also negligently caused the plaintiff to be economically and emo-

tionally worse off than the plaintiff otherwise would have been.

14

That is consistent with the position taken by the dissent. See 362 Or at 475

(Walters, J., dissenting).

460 Tomlinson v. Metropolitan Pediatrics, LLC

Using that comparison to establish harm creates

a problem for T. Framing T’s argument in that way does

not avoid a comparison between life and nonexistence, as T

contends. Instead, it enables a comparison between life and

nonexistence by asserting at least a partial conception of

what nonexistence is like—namely, a state of being in which

one experiences no economic or emotional burdens.

Nevertheless, we need not decide whether T can

establish cognizable harm by comparing the economic and

emotional burdens that he will experience in his life to the

complete lack of economic and emotional burdens experi-

enced by a person who is never born. Even if that compar-

ison were sufficient to establish economic and emotional

harms, T would then have to establish that his economic

and emotional harms constitute the impairment of a legally

protected interest that defendants were obligated to protect.

“Not all negligently inflicted harms give rise to a

negligence claim. Rather, a plaintiff must suffer harm ‘to

an interest of a kind that the law protects against negli-

gent invasion.’ ” Lowe v. Philip Morris USA, Inc., 344 Or 403,

410, 183 P3d 181 (2008) (quoting Solberg, 306 Or at 490).

As explained earlier, without a cognizable justification for

legal protection, negligence law generally does not require

a person to affirmatively protect others from physical and

nonphysical harm and generally does not require a person to

avoid causing injury to the economic and emotional interests

of others. Instead, recognizing a third-party professional

negligence claim for T requires that we identify T’s inter-

est in avoiding defendants’ negligence and then determine

whether that interest is subject to legal protection, which is

the same threshold issue that we considered with respect to

the parents’ third-party professional negligence claim.15

Although we have concluded, under the facts

alleged, that defendants could be required to affirmatively

protect the parents’ economic and emotional interests, it

does not necessarily follow that defendants were required to

affirmatively protect T’s interests. We have recognized the

15

That analysis is required even if T’s injuries were physical because, like

the parents, T’s alleged injuries resulted from risks of harms that defendants did

not create. See 362 Or at 442-43.

Cite as 362 Or 431 (2018) 461

parents’ claim because of their relationship to defendants

and the identifiable interest that the parents had in making

informed reproductive choices. T, however, did not have the

same relationship to defendants and his interests are dis-

tinct from the parents’ interests.

In attempting to identify T’s interest in avoiding

defendants’ negligence, the parties offer competing defini-

tions of the interest at stake. T defines his interest narrowly

as a right to avoid the economic and emotional burdens of

living with DMD, and he resists defendants’ efforts to define

his interest more broadly as a right not to be born or a right

to remain in a state of nonexistence.

We agree with defendants that, based on T’s alle-

gations, the only way for T to avoid the economic and emo-

tional burdens of living with DMD was to avoid being born

in the first place. In other words, the specific manner in

which T proposes that he should have avoided the economic

and emotional burdens of living with DMD is by not being

born. For T, avoiding life and avoiding the economic and

emotional burdens of living with DMD are factually insep-

arable. Thus, protecting any interest that T could have in

avoiding the economic and emotional burdens of living with

DMD would result in T not being born at all. If T had no

interest in avoiding life, then he had no interest in avoiding

the economic and emotional burdens of living with DMD.

Because, for T, avoiding life with DMD and avoiding life at

all are coextensive, it is more accurate to define T’s interest

as an interest in avoiding life. That is, of course, the same as

saying that defendants infringed T’s interest in remaining

in a state of nonexistence.16

16

According to the dissent, T’s interest should be defined as avoiding the

harm of being born with DMD and “recovering the economic and noneconomic

damages that flow from that harm.” 362 Or at 477 (Walters, J., dissenting). The

dissent justifies that formulation by asserting that “this court describes the

plaintiff’s interest as an interest in avoiding the harm caused by the wrongful

act for which the plaintiff seeks recovery.” 362 Or at 476 (Walters, J., dissenting).

We do not share that view. As explained earlier, without a further justification

for legal protection, negligence law generally does not require a person to avoid

causing injury to the economic and emotional interests of others. As pleaded in

this case, T’s entitlement to those remedies depends on the premise that defen-

dants infringed on T’s putative protected interest in remaining in a state of

nonexistence.

462 Tomlinson v. Metropolitan Pediatrics, LLC

In assessing whether T can state a third-party pro-

fessional negligence claim based on an interest in avoiding

life, we consider, among other factors, whether, and to what

extent, recognizing such a claim would interfere with or

impair the obligations that the defendants owe to others.

See 362 Or at 446. There can be no doubt that recognizing

that a child in T’s position has an interest in not being born

is distinct from, and potentially at odds with, the parents’

interests recognized above. See Hester v. Dwivedi, 89 Ohio

St 3d 575, 583, 733 NE2d 1161, 1167 (2000) (“[T]he injury

allegedly suffered by [the mother] (deprivation of opportu-

nity to make an informed choice to terminate a pregnancy)

is conceptually different from the injury that [the child]

asserts (her birth with defects).”). The parents’ claim is pre-

mised on an interest in receiving information from defen-

dants that implicated the parents’ ability to make informed

reproductive choices.17 Once the parents are informed, they

are entitled to make their own reproductive choices. See,

e.g., id., 733 NE2d at 1167 (“[N]o person has control over

the occurrence or nonoccurrence of his or her own birth.”);

Walker by Pizano v. Mart, 164 Ariz 37, 42, 790 P2d 735, 740

(1990) (“Children, however, have neither the ability nor the

right to determine questions of conception, termination of

gestation, or carrying to term.”); James G. v. Caserta, 175 W

Va 406, 415, 332 SE2d 872, 881 (1985) (“This duty to inform

does not extend to the unborn child as it is the parents’

decision to risk conception or to terminate a pregnancy.”).

That includes choosing to conceive and bear a child even

after being informed that the risks of a genetic disorder are

high, or choosing not to conceive a child even after being

informed that the risks of a genetic disorder are low. We

would not expect a physician in either of those situations to

act on behalf the child and interfere with the parents’ right

to make informed reproductive choices.

17

Similarly, the dissent takes issue with that conception of the parents’

putative interest. Instead, the dissent defines the parents’ interest as avoiding

the economic and emotional burdens of raising a child with DMD. According to

the dissent, “Although T’s 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.” 362 Or at 479 (Walters, J., dissenting). In our view,

that conception confuses the interest to be protected with the damages necessary

to compensate the infringement of that interest.

Cite as 362 Or 431 (2018) 463

Thus, recognizing a child’s independent legal inter-

est in being conceived and born (or not being conceived and

born) would create potential tension with the parents’ legal

interest in deciding whether or not to conceive and bear that

child. The parents have alleged, and at the pleading stage we

accept as true, that, if they had been informed of the risk of

conceiving and bearing another child with DMD, they would

not have done so. If they prove their claim, the parents will

be able to seek damages for their own economic and emo-

tional injuries associated with raising a child with DMD.

A finder of fact will determine the existence and extent of

those injuries from the parents’ own perspective—that is,

what the parents’ economic and emotional well-being is hav-

ing conceived and born T as compared with what the par-

ents’ economic and emotional well-being would have been if

the parents had not conceived and born T.

Whether the parents’ interests have been infringed

does not depend on whether T’s interests have been infringed.

As we recognized in Zehr, a finder of fact may determine

that parents’ interests have been impaired and are entitled

to damages for economic and emotional harms resulting

from conceiving and bearing a child even if that child is

healthy. Zehr, 318 Or at 657. Likewise in this case, the par-

ents may be able to establish that their interests have been

impaired and they are entitled to damages for economic and

emotional harms resulting from conceiving and bearing T

even if T is better off for having been born.18

18

The tension between parental and child interests was recognized by a

Connecticut court in rejecting the type of claim that T asserts here:

“Recognizing a claim for wrongful life can also be problematic because

any theoretical fetal rights either to come to term or not are subject to the

mother’s legal rights pertaining to control of her pregnancy. See Roe v. Wade,

[410 US 113, 93 S Ct 705, 35 L Ed 2d 147 (1973)]. If a pregnant mother

chooses not to have an ultrasound or amniocentesis, should her child be able

to have a cause of action against the mother? If the mother chooses not to

terminate her pregnancy after discovering her fetus has Dandy-Walker syn-

drome, Down’s syndrome or any other fetal abnormality, should the child be

able to have a cause of action against the mother? * * * In short, should a

child be able to make a claim against his or her mother if the child is born

with an impairment that was detectable during pregnancy? * * * Just as the

child rightfully does not have a claim against the mother for bringing her

pregnancy to term, the child should not have a claim against the physicians

and other health care providers when instead, they are the alleged proximate

cause of the pregnancy not being terminated.”

464 Tomlinson v. Metropolitan Pediatrics, LLC

The allegations in T’s claim reveal—but do not pur-

port 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 T’s 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 differ-

ent 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. T’s 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 inter-

est 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

Rich v. Foye, 51 Conn Supp 11, 42-43, 976 A2d 819 (Super Ct 2007).

We need not decide here whether a disabled child could sue her parents for

wrongful life for (1) unreasonably failing to obtain genetic testing; or (2) unrea-

sonably conceiving and giving birth to the child after being confronted with the

risk of having a child born with a genetic disability. See Winn v. Gilroy, 296 Or

718, 734, 681 P 2d 776 (1984) (adopting Restatement (Second) § 895G approach

and abolishing parental immunity except in instances where the act is not tor-

tious or is privileged). However, the determination whether (as the Connecticut

court assumed) a parental privilege exists in such circumstances necessarily

implicates the question whether the parents’ right to exercise reproductive choice

effectively overrides any interest of the child in being born free of disability.

Merely to state the question highlights the inherent tension between the inter-

ests of a preconceived child at risk for disability and parents who exercise repro-

ductive choice.

Cite as 362 Or 431 (2018) 465

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 T’s

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 sim-

ply asserts that such a child would prefer never having lived

at all to living in her afflicted state.19 That answer only

underscores the problem: T’s theory of relief starts from

the premise that, if defendants had not been negligent, he

would not have been born. Thus, as T’s 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 presup-

poses 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 P2d 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 NJ 22, 28, 227 A2d 689, 692 (1967) abrogated by

Berman v. Allan, 80 NJ 421, 404 A2d 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 ques-

tion and cites no judicial decision that has endeavored to

answer it. See Kassama v. Magat, 368 Md 113, 148, 792 A2d

19

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).

466 Tomlinson v. Metropolitan Pediatrics, LLC

1102, 1123 (2002) (noting that every court that has consid-

ered 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 non-

existence unanswerable. See Procanik by Procanik v. Cillo,

97 NJ 339, 353, 478 A2d 755, 763 (1984) (“The philosoph-

ical 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 meta-

physical considerations.”); Harbeson v. Parke-Davis, Inc., 98

Wash 2d 460, 482, 656 P2d 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 P2d 954, 964 (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,20 have been criticized for ignoring the

task of identifying a cognizable injury. See, e.g., Lininger,

764 P2d 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 child’s 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 NE2d 691, 701 (1987) overruled on other grounds

by Clark, 353 Ill Dec 254, 955 NE2d 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

20

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 impos-

sible 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, 643 P2d at 963.

Cite as 362 Or 431 (2018) 467

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 per-

mitted awards of economic damages for wrongful life have

attempted to apportion the child’s injury based on the idea

that the defendant caused the economic loss flowing from

the child’s disability, but not the child’s entire existence. But,

that approach fails to acknowledge that the premise of such

a claim—including the claim pleaded here—is that defen-

dants’ negligence caused T’s 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 T’s 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 pro-

tected interest that was violated by the defendant’s negli-

gent conduct. In short, T’s claim does not fit coherently into

the framework of common-law negligence because it “fail[s]

to adequately describe the legally compensable injury with-

out defining the injury as the plaintiff’s very existence.”

Id. at 2337.21

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 defendant’s negligent conduct. The

21

As Schuster further notes:

“Classifying the injury as indivisible might fit more neatly within existing

tort doctrine, but would force courts to consider the plaintiff’s entire life, both

defect and existence, as the harm—the result they have attempted to avoid.”

Id. at 2338.

468 Tomlinson v. Metropolitan Pediatrics, LLC

objectives of negligence law, according to T, are best served

when a negligent party incurs the costs of his or her negli-

gent conduct. T contends that our conception of a compen-

sable “injury” should be sufficiently malleable to meet those

objectives.

At first blush, T’s argument arguably finds some

support in this court’s 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. Although, as

alleged, the plaintiff in that case could not establish that the

defendant’s negligence caused his failure to recover from a

stroke, the plaintiff alleged facts showing that the defen-

dant’s negligence caused him to lose a 33 percent chance

of recovering from his stroke. This court allowed the plain-

tiff 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; see also id. at 467-71 (compar-

ing 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 T’s 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 per-

cent 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 patient’s 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.

In contrast, T’s 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

Cite as 362 Or 431 (2018) 469

same or similar analysis would apply in other cases where a

plaintiff alleges that, but for the defendant’s 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 per-

cent chance of having a child with DMD and about a 75 per-

cent chance of having a child without DMD. T’s 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 sig-

nificant are those differences to a preconceived child, given

that, even a child without DMD can expect to incur substan-

tial 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 recogniz-

ing T’s claim would require a departure from the traditional

negligence principles that justified this court’s 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 effec-

tively confronted the difficulties that we have discussed.

Instead, they primarily have resorted to practical or sympa-

thetic 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

470 Tomlinson v. Metropolitan Pediatrics, LLC

for uncompensated medical and other expenses that a dis-

abled child might incur as an adult. See, e.g., Turpin, 31 Cal

3d at 238, 643 P2d 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 T’s 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 P2d 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 men-

tally disabled adult child against his parent. Id. at 631.22

We note that, in comparable circumstances, the

New Hampshire Supreme Court relied on a parental sup-

port obligation toward adult children in concluding that a

disabled child’s 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 NH 231, 245, 513 A2d 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

A2d at 350 As a consequence, in rejecting the child’s sepa-

rate 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

22

The court in Haxton also discussed the Relative Responsibility Law, for-

mer ORS 416.010 to ORS 416.280 (1985). Id. at 626. That law has since been

repealed. Or Laws 2001, ch 900, § 261. However, the foundation of the court’s

holding in Haxton was ORS 109.010, which remains unchanged to this day.

Cite as 362 Or 431 (2018) 471

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 A2d at 354.

In sum, although we do not reach the issue whether

the parents could recover economic damages from defen-

dants for costs of T’s 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

T’s right to recover such damages would be significant. To

summarize: Without a principled way to determine the rela-

tive 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 P2d 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 con-

ceptual 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 con-

clude that the line that the very few courts (and none since

the mid-1980’s) 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 founda-

tion in doctrinal principle. In short, were we to disregard

the causation and injury requirements for T’s 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 NH at 252, 513 A2d at 354

(quoting Nelson v. Krusen, 678 SW2d 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 T’s pleaded claim. As we and

other courts have observed, the objection that a medical

472 Tomlinson v. Metropolitan Pediatrics, LLC

negligence claim by the parents involving the birth of a dis-

abled 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 NW2d at 403. Although one aspect of the parents’ dam-

ages may consist of costs associated with the care and edu-

cation of a child with disabilities, those damages are recov-

erable only if they were caused by defendant’s violation of

that protected interest. Id. T’s theory is fundamentally dif-

ferent: As pleaded, and despite an effort to apportion his

alleged damages to avoid the problem, T’s claim necessar-

ily 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 pos-

sible 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 suf-

ficient 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.

T’s brother, M, has Duchenne muscular dystrophy

(DMD). T’s parents allege that defendants were negligent in

failing to diagnose M’s medical disorder and that, as a result,

they conceived and gave birth to T, who also has DMD. We

permit T’s parents to seek recovery for the economic and

Cite as 362 Or 431 (2018) 473

emotional damages that flow from T’s DMD, but we leave T,

the child with the disorder, without a remedy. I respectfully

dissent.1

The majority refuses to recognize T’s 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 ques-

tion is “entirely too metaphysical to be understood within

the confines of law, if indeed the question has any meaning

at all.”2 362 Or at 465 (internal quotation omitted). Those

imponderables, the majority insists, present two obstacles

to recognition of T’s claim: They may preclude T from prov-

ing that defendant’s 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 (internal quotation omitted). I disagree.

It is not necessary to compare the value of life and nonexis-

tence 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. As this court explained in Smith v. Providence

1

I agree that T’s parents claim is cognizable and concur with the majority’s

decision in that respect.

2

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.

Don’t be afraid, though: I’ve 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).

474 Tomlinson v. Metropolitan Pediatrics, LLC

Health & Services, 361 Or 456, 393 P3d 1106 (2017), to prove

harm, a plaintiff must prove only “resulting harm to the

plaintiff measurable in damages.” Id. at 460 (quoting Zehr v.

Haugen, 318 Or 647, 653-54, 871 P2d 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 eco-

nomic costs and emotional distress, the plaintiff can seek

damages for that harm regardless of the fact that, as a result

of a defendant’s negligence, the plaintiff’s 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 impris-

onment against A, even if at the end of the imprisonment B

obtains large sums for writing an account of the imprison-

ment. Restatement (Second) § 920 illustration 6. However,

when a defendant’s tortious conduct has caused harm to the

plaintiff, and, in doing so, also has conferred a special bene-

fit 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 (so stat-

ing). 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 T’s parents’ claim, the majority recog-

nizes and applies that Restatement rule. 362 Or at 453-54.

That has two important consequences for an assessment of

T’s claim. The first is that the benefits conferred by defen-

dants’ negligence—T’s life and its accompanying joys—

cannot be a basis for denying T’s 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 T’s damages can be calculated without

comparing the relative values of life and nonexistence. As

to T’s economic damages, section 920 allows an offset only

Cite as 362 Or 431 (2018) 475

when a defendant’s negligence confers special benefits “to

the interest of the plaintiff that was harmed.” Restatement

(Second) § 920; see also 362 Or at 453 (so stating). Thus, as

explained in the Restatement, and again as the majority rec-

ognizes in analyzing T’s parents’ claim, “damages resulting

from an invasion of one interest are not diminished by show-

ing that another interest has been benefitted.” Restatement

(Second) § 920 comment b; see also 362 Or at 453-54 (so stat-

ing). For example, “damages for pain and suffering are not

diminished by showing the earning capacity of the plain-

tiff has been increased by the defendant’s 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 T’s economic damages, a

jury need only calculate T’s medical expenses; it need not

determine the value of T’s life, the value of nonexistence, or

whether T would prefer one to the other.

The same is true for T’s 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 T’s harm were to depend, in

some way, on a comparison between nonexistence and life,

T’s 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

jury’s ken, a court could take notice that if T had not been

born, he would not have had legal obligations to pay med-

ical 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

476 Tomlinson v. Metropolitan Pediatrics, LLC

concludes that T’s interest in avoiding that harm is not

legally cognizable.

The first step in deciding whether a plaintiff’s inter-

est is legally protected against invasion is to correctly

describe the interest at issue. This court describes the plain-

tiff’s 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 “sim-

plest legally protected interest” as an interest in being “free

from physical harm at the hands of another.” 360 Or 698,

703, 385 P3d 1038 (2016) (internal quotation omitted). And,

in Philibert, the court granted legal protection to the plain-

tiffs’ interest in avoiding certain emotional harm—the emo-

tional distress that occurs in observing the physical injury

of a close family member. Id. at 708. Similarly, in Smith, the

court granted legal protection to the plaintiff’s 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; see also McEvoy v. Helikson, 277 Or 781, 788, 562

P2d 540 (1977) (interest in avoiding the emotional distress

that arises when a professional defendant violates a legal

duty designed to protect a non client third party against

foreseeable harm); Hovis v. City of Burns, 243 Or 607, 613,

415 P2d 29 (1966) (interest in avoiding emotional distress

that arises when a defendant negligently handles a spouse’s

remains); Hinish v. Meier & Frank Co., 166 Or 482, 503-04,

113 P2d 438 (1941) (interest in avoiding emotional distress

that arises when a defendant invades a plaintiff’s privacy by

making a false statement of support for particular legisla-

tion). In each of those circumstances, the court considered

whether to grant legal protection to the plaintiff’s 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 plaintiff’s interest in avoiding the claimed harm was of

“sufficient importance as a matter of public policy to merit

protection.” Philibert, 360 Or at 705 (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 (quoting Harris v. Suniga, 344 Or 301,

Cite as 362 Or 431 (2018) 477

308, 180 P3d 12 (2008)). In Philibert, the court was per-

suaded 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. Likewise, in Smith, the court considered the tort

system’s 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 sub-

ject to manipulation, and the public concern that the chosen

rule of law not adversely affect medical practice. 361 Or at

479-80. The court was persuaded that recognizing the plain-

tiff’s 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.

In this case, the majority starts off on the wrong foot.

The majority incorrectly describes T’s interest as an interest

in avoiding life or remaining in a state of nonexistence. 362

Or at 464. 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.3

Rather, T claims that, due to defendant’s negligence, he was

in fact born, and born with DMD. The majority should have

followed precedent and described T’s interest as an interest

in avoiding that harm and recovering the economic and non-

economic damages that flow from that harm.

The majority then veers further from the path of prec-

edent and fails to consider the previously identified public

policy considerations that weigh in favor of recognizing T’s

claim: Because T is a member of M’s 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 T’s interest does not impose any greater obligation on phy-

sicians than already exists; it requires only that physicians

act reasonably to diagnose the medical conditions of their

3

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).

478 Tomlinson v. Metropolitan Pediatrics, LLC

minor patients and communicate those diagnoses to their

parents. And recognition of T’s 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.

Rather than addressing those factors, the majority

takes up the question of “whether, and to what extent, rec-

ognizing T’s claim would interfere with or impair the obli-

gations that [defendants] owe to others.” Id.  at 462. That

question is easily answered: Recognizing T’s claim would

not interfere with or impair the obligations that defendants

owed to their patient, M, or M’s parents.

In recognizing T’s parents’ claim, the majority

explains that defendants’ obligation to exercise professional

skill on behalf of M also required them to reasonably per-

form other tasks for those who were intended beneficiaries

of their skills, including M’s parents. The majority concludes

that the applicable standard of care required defendants to

diagnose M’s genetic disorder and communicate it to his

parents. 362 Or at 447.4 And, the majority says, “satisfying

the parents reasonable expectations merely required defen-

dants to provide M with the level of care that a reasonably

prudent, careful, and skillful physician would have other-

wise provided to M.” 362 Or at 448. Recognition of T’s claim

requires no more. Like his parents, T is an intended bene-

ficiary of defendants’ diagnosis and recognizing T’s 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 T’s interest is “distinct from, and potentially at

odds with, the parents’ interests.” 362 Or at 462. That is, of

4

In reaching that conclusion, the majority draws an analogy to cases in

which physicians have failed to warn of the risks posed by a patient’s contagious

disease. Id.  at 448-49. Courts have permitted nonpatient family members to

make claims against such physicians and have not limited those claims to nonpa-

tients with whom the physician has a relationship. See Hoffman 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 minor’s well-being of the nature of conta-

gious 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.

Cite as 362 Or 431 (2018) 479

course, an entirely different issue, but one that also is eas-

ily addressed. T’s interest may be distinct from his parents’

but there is no tension between them. Like T’s interest, T’s

parents’ interest is in avoiding the consequences of defen-

dants’ negligence and the burdens associated with T’s med-

ical disorder. The majority so describes T’s parents’ interest

throughout much of its opinion. See 362 Or at 460 (majority

determines that defendants “could be required to affirma-

tively protect the parents’ economic and emotional interests”)

(emphasis added); id. at 443 (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 T’s interest as

an interest “in being conceived and born (or not being con-

ceived and born)” and his parents’ interest as an interest in

“deciding whether or not to conceive and bear that child.” 362

Or at 463. That error is fundamental. As noted, T’s 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 T’s par-

ents 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, T’s parents had no reproductive choice.

Therefore, there could be no tension between what they

chose and what T would “want” them to choose. What hap-

pened, 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 defendant’s

negligence. T’s claim is at least as important and deserving

of legal protection as is his parents’.5

5

As the court explained in Turpin v. Sortini, 31 Cal 3d 220, 233-34, 643 P2d

954, 962 (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, how-

ever, just as in the case of an infant after birth, the law generally accords the

480 Tomlinson v. Metropolitan Pediatrics, LLC

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 permit-

ting 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 child’s claim because of the policy

recognizing the “preciousness and sanctity of human life”);

Kassama v. Magat, 368 Md 113, 149, 792 A2d 1102, 1123

(2002) (denying child’s wrongful life claim and stating that

“the crucial question, a value judgment about life itself, is

too deeply immersed in each person’s own individual philos-

ophy 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 child’s 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 NJ 339, 352, 478 A2d 755,

762 (1984) (stating that “[w]hatever logic inheres in permit-

ting parents to recover for the cost of extraordinary medical

care incurred by a birth-defective child, but in denying the

child’s 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 P2d 483, 495 (1983)

(adopting Turpin’s acknowledgment that it would illogical

to allow parents but not the child to recover economic dam-

ages for child’s disabling condition); Trupin v. Sortini, 31 Cal

3d 220, 238, 643 P2d 954, 965 (1982) (stating that it “would

be illogical and anomalous to permit only parents, and not

parents the right to act to protect the child’s 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 opportu-

nity to make an informed and meaningful decision whether to conceive and

bear a handicapped child. (See, e.g., Robak v. United States, supra, 658 F2d

471, 476; Berman v. Allan, supra, 404 A2d 8, 14; Jacobs v. Theimer, supra,

519 SW2d 846, 849; cf. Cobbs v. Grant (1972) 8 Cal 3d 229, 242–243, 104 Cal

Rptr 505, 502 P2d 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 child’s own interest to be born with defects or not to be born at all.”

Cite as 362 Or 431 (2018) 481

the child, to recover for the cost of the child’s own medical

care”).6 And some strong dissents have been penned.7

Like others recognizing the anomaly that a decision

like the majority’s 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 grava-

men of his parents’ claim, the right to seek the same recov-

ery that is permitted to his parents.

I respectfully dissent.

Kistler, J., joins in this dissenting opinion.

6

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 NJ 339, 357, 478 A2d 755, 765 (1984)

(Handler, J., dissenting in part) (“[The majority’s] position reflects a reluctance,

perhaps understandable, to deal with the subtle but terrible realities of the psy-

chological, mental, and emotional damage that ensue from the birth of a congeni-

tally 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, 643 P2d at 966 (Mosk, J., dissenting) (“An

order is internally inconsistent which permits a child to recover a special dam-

ages 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 commend-

able, they suggest no principal of law that justifies so neatly circumscribing the

nature of damages suffered as a result of a defendant’s negligence.”). Perhaps

the results in those cases can be explained as implicitly deciding, under the mit-

igation rule discussed at 362 Or at 474 (Walters, J., dissenting), that the special

emotional benefits of a disabled child’s life offset the emotional damages that the

child suffers. I would leave that question to the jury.

7

See, e.g., Lininger v. Eisenbaum, 764 P2d 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 A2d 1327,

1330 (1986) (Larsen, J., dissenting) (“The majority also concludes that the child’s

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 A2d 110, 118 (1981).));

Berman v. Allen, 80 NJ 421, 441, 404 A2d 8, 19 (NJ 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.”).