## Facts

- Robert Robak, an enlisted U.S. Army member, and his wife Anna sought care at an Army OB-GYN clinic at Fort Rucker, Alabama, when Anna was about one month pregnant and had a rash and fever.
- An Army obstetrician-gynecologist ordered pregnancy and rubella testing and told Anna she was pregnant and rubella-negative.
- A subsequent rubella test was positive, but Anna was not informed of the positive result or warned about rubella’s fetal risks.
- Anna gave birth to Jennifer, who exhibited symptoms consistent with congenital rubella syndrome, including severe hearing loss and cataracts, and later required extensive medical care, special education, and ongoing assistance.
- The parents alleged that, if properly informed, they would have terminated the pregnancy, and they sued the United States under the Federal Tort Claims Act for negligent prenatal testing/counseling resulting in wrongful birth.
- After a bench trial, the district court found the United States liable, awarded substantial damages for Jennifer’s care, but reduced the award by deducting the estimated costs of raising a healthy child; the court also modified the parents’ contingent fee arrangement.
- The United States appealed liability and damages; the parents cross-appealed the child-rearing-cost offset and the fee modification.

## Issues

1. Whether parents have a cognizable “wrongful birth” claim when a physician’s negligent failure to diagnose or disclose material prenatal information deprives them of an informed choice to avoid the birth of a severely impaired child.
2. Whether damages in a wrongful birth action may include extraordinary disability-related expenses without an offset for the ordinary costs of raising a healthy child.
3. Whether a district court may modify a contingent fee agreement in an FTCA case when the fee is within the statutory cap.

## Decision

- The Seventh Circuit affirmed recognition of a parental wrongful birth cause of action based on negligent failure to inform of rubella infection and fetal risks.
- The court reversed the damages reduction for the estimated cost of raising a healthy child and held the parents could recover the extraordinary expenses proximately caused by the negligence.
- The court reversed the district court’s modification of the contingent fee arrangement, holding the court lacked authority to alter a fee contract that complied with FTCA fee limits.
- The case was remanded for recalculation of damages and entry of an attorneys’ fee award consistent with the parties’ agreement and statutory constraints.

## Legal Principles

- Wrongful birth is a form of medical malpractice focused on the physician’s duty to exercise due care in diagnosis and to communicate material information necessary for parental decision-making regarding continuation of pregnancy.
- The actionable injury is the deprivation of the parents’ informed choice, not the child’s existence; causation may be shown by proof that the parents would have chosen lawful termination if properly informed.
- Damages may include the extraordinary medical, educational, residential, and attendant-care costs attributable to the child’s disabilities when such costs are a foreseeable and proximate result of the negligent failure to inform.
- Ordinary child-rearing expenses for a hypothetical healthy child are not an automatic offset against extraordinary disability-related costs in a wrongful birth action.
- In FTCA litigation, courts must enforce statutory caps on attorneys’ fees but may not rewrite a compliant contingent fee contract absent independent legal authority.

## Conclusion

The Seventh Circuit recognized wrongful birth under the FTCA for negligent prenatal testing and nondisclosure that deprived parents of an informed decision, required damages to reflect the full extraordinary costs caused by the disability without a normal child-rearing offset, and barred judicial alteration of a contingent fee agreement that fell within statutory limits.


Robak v. United States, 658 F.2d 471 (7th Cir. 1981)