FLYNN: Injury must be proven in order to have a case

Recently, the Colorado Court of Appeals decided a case that is likely to generate more than the usual amount of comment and controversy.

In this case, the plaintiff, Dionne Dotson, sued her doctor, Dell Bernstein, for malpractice. The reason? Dotson went to Bernstein for an abortion but, to her considerable surprise, she later gave birth - to a healthy child.

The trial court judge threw out the case on a motion to dismiss for failure to present a claim that the law would recognize. This motion was based on the premise that giving birth to a healthy child did not result in an injury - and, in the eyes of the law, if there is no injury, there is no claim. The trial court judge seemingly agreed with the defendant doctor that the benefits of giving birth to a healthy child would always outweigh any drawbacks. (It is my suspicion that the trial court judge did not have teenage children when she made her ruling.)

The trial court judge based her order of dismissal on a 1988 Colorado Supreme Court decision that disallowed a claim brought by a child who was born blind.

In that case, the child, named Pierce, argued that, but for a doctor's misdiagnosis of a congenital defect that predicted his blindness, his parents would not have conceived him or, if he had been conceived, they would have terminated the pregnancy.

There, the Supreme Court concluded that Pierce had no claim because he could not prove injury. The Supreme Court refused to engage in a process that would have required it to compare the value to Pierce of not being born with the value of being born with his impairment. Said the court: "The relevant question - of what value to Pierce would his nonexistence have been? - is entirely too metaphysical to be understood within the confines of law ..."

In the same case, however, Pierce's parents were allowed to bring a claim against the doctors who failed to advise them that Pierce might be born blind. According to the Supreme Court, the parents did suffer an injury in the form of mental anguish, additional costs of support, lost income from having to devote time to a blind child, etc.

Getting back to Dotson's case, the court of appeals reversed the trial court judge and reinstated her claim. The court of appeals found that Dotson, in her complaint, had presented facts that, if proven to be true, would support a claim. On the question of injury, Dotson alleged that she had suffered damages resulting from "pain and suffering associated with labor, delivery, and subsequent medical complications from the birth," and that was enough to keep her in the game.

The cutting-edge question here is whether Dotson can recover damages associated with having a healthy child she hadn't wanted. Since appellate courts avoid answering questions they don't have to answer, the court of appeals refused to decide this issue. One of the three court of appeals judges, in a concurring opinion, said the court should have addressed the issue - and ruled that no such damages would be allowed.

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Jim Flynn is a private attorney at Flynn Wright & Fredman LLC in Colorado Springs. The firm primarily represents clients in the real estate, financial services and small-business sectors. Reach him at jtflynn@fwflegal.com.