## Facts

- Tom and Gloria Nelson had a child with Duchenne muscular dystrophy and sought genetic counseling when Gloria became pregnant again in 1976.
- Dr. Edward M. Krusen tested and examined Gloria and advised that she was not a carrier and was no more likely than other women to have an affected child.
- Relying on that advice, the Nelsons did not terminate the pregnancy; their son Mark was born in November 1976.
- Mark’s condition was not identified until a nursery-school examination in November 1979 and a neurologist’s diagnosis in February 1980.
- The Nelsons sued Dr. Krusen and Baylor University Medical Center, alleging negligent misinformation and negligent testing/reporting, and claimed they would have terminated the pregnancy if accurately informed.
- The Nelsons asserted (1) a parental wrongful birth claim and (2) a wrongful life claim on Mark’s behalf.

## Issues

1. Whether the two-year, occurrence-based limitations period for health-care liability claims could constitutionally bar a wrongful birth claim when the injury was not reasonably discoverable within two years of the alleged negligence.
2. Whether Texas recognizes a common-law cause of action for wrongful life allowing a child to recover for being born with severe impairments rather than not being born.

## Decision

- The court reversed summary judgment on the parents’ wrongful birth claim and remanded for further proceedings.
- The court held that applying the occurrence-based limitations statute to bar the wrongful birth claim, before the Nelsons had a reasonable opportunity to discover the injury and sue, violated the Texas Constitution’s open courts provision.
- The court affirmed dismissal of the wrongful life claim, holding that Texas does not recognize wrongful life as a cause of action.

## Legal Principles

- The Texas open courts provision prohibits the Legislature from cutting off a well-established, justiciable claim before the claimant has a reasonable opportunity to discover the wrong and bring suit.
- An occurrence-based medical malpractice limitations period is unconstitutional as applied when it makes access to a remedy contingent on an impossible condition—filing suit before the injury could reasonably be discovered.
- Texas recognizes a parental wrongful birth claim in appropriate circumstances, subject to constitutional limits on statutory restrictions.
- Texas does not recognize wrongful life because tort damages require a workable measure of injury, and courts lack a rational method to compare “life with impairments” to “nonexistence.”

## Conclusion

The Texas Supreme Court held that the open courts provision prevented an occurrence-based limitations statute from extinguishing the Nelsons’ wrongful birth claim before they could reasonably discover their child’s condition, but it refused to recognize wrongful life because the alleged injury and damages cannot be coherently measured in tort.


Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984)