Kansas Court Hears Arguments Over "Wrongful Birth" Law
BELLE PLAINE, Kan.: The Kansas Supreme Court seemed worried Wednesday about the proper roles of the Legislature and courts as it wrestled with whether a state statute that prohibits lawsuits based on wrongful birth claims is constitutional.
Justices heard oral arguments via Zoom on whether the parents of a disabled child have a right to a trial on their malpractice claims. A lower appeals court had earlier held that the statute signed into law by then-Gov. Sam Brownback in 2013 protects physicians from malpractice suits if they fail to provide information about fetal abnormalities that might cause the mother to get an abortion.
The parents’ attorney, Lynn Johnson, argued the case was an action for the recovery of damages for negligent injury under common law that had evolved based on advances of technology and a recognition of a woman’s reproductive rights.
So the Legislature cannot simply because it doesn’t like abortion simply cannot step in and deprive these folks and others similarly situated of their right to remedy … by a trial by jury of whether the doctor was negligent and whether that negligence ultimately caused their monetary damages, Johnson said.
Alysia Tillman gave birth in May 2014 to a baby girl with a severe brain abnormality that left her permanently disabled and unable to ever perform activities of daily living. Months before the birth, the doctor performed an ultrasound and told the parents it showed a healthy female fetus.
Tillman and Storm Fleetwood sued their doctor, claiming Dr. Katherine Goodpasture’s failure to ...
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